PHILADELPHIA—With one crucial legal battle out of the way, at least two more loom in the sexual-assault case against Bill Cosby: whether prosecutors can use his explosive testimony from a decade-old lawsuit, and whether other Cosby accusers can testify.
On Wednesday, a judge moved the case a step closer to trial when he rejected claims that the 78-year-old comedian had a binding promise from a previous district attorney in 2005 that he would never be charged in the matter. The next stage is a preliminary hearing March 8.
The TV star is accused of drugging and violating former Temple University athletic department employee Andrea Constand at his suburban Philadelphia home in 2004 and could get 10 years in prison if convicted. While some 50 women have accused Cosby of sex crimes, this is the only case in which he is charged.
An epic fight is all but certain over whether to admit into evidence the deposition that was unsealed over the summer and contributed to his arrest in the 12-year-old case.
Testifying in a lawsuit that Constand brought against him, Cosby acknowledged that he pursued sex with younger, often-struggling models and actresses; that he obtained quaaludes in the 1970s to give to women he hoped to seduce; and that he had sexual contact with Constand after giving her wine and pills. He said it was consensual.
Cosby’s lawyers insist they let him sit for the deposition only after receiving assurances from the district attorney at the time that the comic would never be charged over Constand’s complaint.
If a judge agrees that Cosby relied on such as promise, some or all of the deposition could be off limits.
Common Pleas Judge Steven T. O’Neill may have tipped his hand on Wednesday when he refused to dismiss the case—he found there was no valid non-prosecution agreement. But he invited the defense to revisit the issue by filing a request to exclude the deposition at trial.
“That’s going to be vigorously litigated, but without the deposition, the case would be severely handicapped,” said Joseph McGettigan, lead prosecutor in the child-molestation case involving former Penn State coach Jerry Sandusky.
The police affidavit filed when Cosby was arrested on Dec. 30 includes statements that Cosby and Constand gave to police in January 2005. But while Cosby’s statement is 18 pages, his deposition in the lawsuit runs to nearly 1,000 pages, and it involves not just Constand but his behavior with other women.
Police have no DNA or other evidence because Constand waited a year to contact authorities. Instead, prosecutors will try to bolster Constand’s account by calling some of the other women who have since come forward to accuse Cosby of similar behavior.
That, too, is likely to trigger a major battle.
Under Pennsylvania law, “prior bad acts” are not admissible unless prosecutors can show they are truly relevant to the case—for example, if they show a certain pattern of behavior.
“I think they’re going to allow women in that are remarkably similar—not just ‘I was sexually assaulted,’ or ‘He was a pig,’ or ‘I was sexually harassed,’ but those that he may have given pills to, or acted in a very similar behavioral pattern, I think they will allow,” said former sex-crimes prosecutor Richard DeSipio, now a criminal defense lawyer in Philadelphia.
In December, the landmark conviction of a Catholic church official accused of protecting child-molesting Philadelphia priests was thrown out by a Pennsylvania appeals court because the prosecution put 21 victims on the stand when the child-endangerment charge involved only one victim.
“Where the Lynn case went wrong is there were too many dissimilar ones,” DeSipio said.
Cosby’s lawyers said they will appeal Wednesday’s ruling, but a legal expert said it is highly unlikely an appeals court will delay the upcoming proceedings.