Bill Cosby's Legal Team, Prosecutors Square Off on Whether Accusers Can Testify

Bill Cosby 2-preliminary hearing-Montgomery County Courthouse on May 24, 2016-Getty-H 2016
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Before Bill Cosby can stand trial for allegedly sexually assaulting ex-Temple University employee Andrea Constand in 2004, the court has to decide whether it will allow other women who say they also have been assaulted to testify.

Montgomery County (Pa.) District Attorney Kevin Steele claims that since the Commonwealth charged Cosby with aggravated indecent assault in December 2015, it has investigated nearly 50 claims of "virtually identical drug-facilitated sexual assaults on women." 

Of those women, Steele is asking the court to allow 13 to testify as witnesses to "prior bad acts" — seeking to establish an "absence of mistake." According to a brief filed Tuesday by Steele's office, the basic logic is that as the number of similar incidents increases, the likelihood that the conduct was unintentional decreases. 

Cosby's legal team, led by Angela Agrusa and Brian McMonagle, claim that Steele is prosecuting the comedian only because he had to "go big" to win his DA campaign.

"If it was not already apparent to the Court (or the world) prior to the hearing on the Commonwealth's Motion, the prosecution has now made it fully transparent: This action is not about the accusations of Andrea Constand," states the brief filed Tuesday. "And, it never has been."

Cosby's attorneys argue that the DA doesn't have a case based on evidence relating to Constand alone and needs testimony about accusations of unrelated third parties in order to convince a jury to convict the comedian, and allowing the accusers to testify would be an unjust effort to "breathe life into a meritless case."

"Accepting the Commonwealth's arguments would 'eliminate entirely, at least in sex cases, "one of our most fundamental and prized principles in the administration of criminal law"' — 'that a distinct crime, except under special circumstances, cannot be given in evidence against a defendant who is being tried for another crime,'" states Cosby's brief.

Steele argues that the incidents with Constand and the 13 other women establish a clear pattern of behavior in which Cosby used his notoriety to gain the trust of a younger woman, gave each pills or a drink and then engaged in nonconsensual sexual contact. "[T]hese distinctive similarities demonstrate that all fourteen incidents are so related that proof of one tends to establish proof of the other," states the Commonwealth's brief.

Agrusa and McMonagle argue that the women truly have only one thing in common: attorney Gloria Allred, and they claim that several of her clients didn't think they had been assaulted until after they heard other accusers come forward in the media.

"To the extent the Court sees any 'fingerprint,' it is Gloria Allred's," states Cosby's brief. "She molded the accusers' stories, packaged them up, spoon-fed them to the District Attorney's Office, and manipulated the 'screening' by personally participating in the calls and meetings. And, District Attorney Steele allowed her to do so without conducting any independent investigation into the accusations and backgrounds of these proposed witnesses."

Allred on Wednesday sent The Hollywood Reporter a statement.

"The alleged 'fingerprints' are not mine but those of Mr. Cosby, whom the prosecution claims sexually assaulted the prior bad act witnesses when they were incapacitated and unable to consent," says Allred. "The prosecution argues that these witnesses should be permitted to testify because their testimony would be relevant to prove a common scheme, plan or design by Mr Cosby, which the jury should be entitled to consider. The defense strategy appears to be to divert attention from Mr. Cosby’s alleged criminal behavior and to focus instead on the fact that a number of the prior bad act witnesses are represented by me. I am honored to represent a number of these brave proposed prior bad act witnesses who are willing to testify if the court permits them to do so.”

Cosby's attorneys also are currently seeking a change of venue for the trial, arguing that extensive media coverage and Steele's mention of the Cosby case during his campaign will impede a fair and impartial trial in Montgomery County. They argue that allowing these witnesses to testify would further diminish the likelihood of an unprejudiced jury.

"The Commonwealth is asking the Court to do something no other court in Pennsylvania has done: allow a jury to hear extremely prejudicial testimony about ancient accusations from the 1960s1970s1980s and 1990s in a criminal trial where a man's liberty is at stake, after an astonishing amount of media coverage that the proposed witnesses themselves have participated in extensively," states Cosby's brief.