ADVANCE FOR SUNDAY, MAY 8 – FILE – In this combination of file photos, entertainer Bill Cosby pauses during an interview in Washington on Nov. 6, 2014, and Andrea Constand poses for a photo in Toronto on Aug. 1, 1987. Lawyers for Constand say the 43-year-old Toronto resident is ready to testify in Cosby’s criminal sex-assault case, but suburban Philadelphia prosecutors may try to avoid a grueling cross-examination by deciding not to call her at the 78-year-old’s preliminary hearing scheduled Tuesday, May 24, 2016, in Montgomery County, Pa. (AP Photo/Evan Vucci, left, and Ron Bull/Toronto Star/The Canadian Press via AP, right)
PHILADELPHIA— A decade after she last saw Bill Cosby, a Toronto woman could face the TV legend in court this month at a hearing in suburban Philadelphia on charges he drugged and molested her in 2004.
Prosecutors, though, may instead rely on Andrea Constand’s police statement under an in-flux Pennsylvania ruling meant to spare victims the ordeal of repeated court appearances.
District Attorney Kevin Steele won’t tip his hand on his strategy for the May 24 preliminary hearing in Montgomery County. Legal experts see advantages — and land mines — either way.
If Constand testifies, the defense is sure to grill the former Temple University basketball team manager about her close friendship with Cosby, her specific recollection of the night in question, and their continued phone contact in the year following the alleged assault at his home near Philadelphia.
“Normally, if it’s a complainant critical to the case … they should be there, should be cross-examined, to weed out cases that shouldn’t go forward,” said University of Pennsylvania law professor David Rudovsky, a veteran defense lawyer. “Whether they push the envelope to save her from cross-examination, I don’t know.”
Laws across the country are evolving to allow more hearsay evidence at pretrial hearings. In California, Wisconsin and other states, police can instead read witness statements into the record.
In Pennsylvania, trial lawyers say they’ve rarely seen sex-assault cases in which the victims don’t testify at the preliminary-hearing stage. But it’s become an option since a state appeals court ruled last year, in a case called Commonwealth vs. Ricker, that the constitutional right to confront one’s accuser does not kick in until trial.
The state Supreme Court has recently agreed to review the case — but whether to uphold or overturn it is anyone’s guess.
Some would therefore play it safe and have Constand testify against Cosby, who crafted a reputation as “America’s dad” through his popular TV sitcoms and stand-up acts.
“I think it’d be dangerous for them not to, because if the Supreme Court overturns Ricker, they may have a problem,” said Richard L. De Sipio, a former Philadelphia sex-crimes prosecutor who nonetheless sees the risk of subjecting Constand to cross-examination so early.
When Constand first came forward in January 2005, then-District Attorney Bruce L. Castor Jr. considered the case unwinnable because she had waited a year to call police and stayed in touch with Cosby after moving back home to Canada. Castor concluded both parties could be portrayed “in a less than flattering light.”
But the evidence that’s emerged in the years since favors the prosecution. Dozens of other accusers have come forward. The long-married Cosby, now 78, admitted during the course of Constand’s lawsuit that he had gotten drugs to give potential lovers.
And Constand, now 43, has evolved from an anxiety-ridden young woman living with her parents while she changed careers to a person who’s confident in her own skin. She’s an out lesbian, new age spiritualist, massage therapist and victims’ rights supporter.
Cosby, in his deposition, said that he gave Constand three Benadryl tablets “for stress” before they engaged in consensual sex acts on his couch that night. Her lawyer believes the drug was something stronger and left her semi-conscious.
“No matter how badly she performs, some of the admissions he made in the deposition are devastating,” said celebrity lawyer Mark Geragos of Los Angeles, who said courts recognize that victims who were drugged won’t remember things clearly.
Any account she gives could still help the defense prepare for trial, however.
“You don’t expect to win, but you freeze her testimony,” Rudovsky said.
Steele waited to reopen the criminal case last year until he had Constand’s blessing. Her lawyer, Dolores Troiani, has said she is ready for the court fight. That means battling a crush of cameras as well, given the national conversation about sexual consent and the global reach of Cosby’s fame.
“There’s raging debates about (consent), whether it’s on campus or in the workplace, or ‘no means no,'” Geragos said. “(And the case) does have celebrity, it does have sex, it does have drugs. The only thing missing is rock and roll.” TVJ