Bill Cosby's lawyers wanted to question accuser Andrea Constand at a preliminary hearing

By Nicole Weisensee Egan
Updated July 07, 2016 04:45 PM
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Credit: Matt Rourke/AP

Montgomery County Judge Steven O’Neill refused to dismiss the criminal case against Bill Cosby Thursday, ruling he does not have the right to confront his accuser at a preliminary hearing.

Cosby, 78, – who was back in court on Thursday – is charged with three counts of aggravated indecent assault for allegedly drugging and sexually assaulting Andrew Constand, now 43, at his Elkins Park, Pennsylvania mansion in January 2004.

The case was held for trial after a May 24 prelminary hearing, but Cosby’s attorneys were challenging the outcome because Constand did not testify. Instead, a detective read a statement she gave to authorities on Jan. 22, 2005.

Cosby’s spokesman, Andrew Wyatt, immediately released a statement expressing disappointment with the ruling and vowed to appeal.

“Once again the prosecution had the opportunity and the obligation to place Mr. Cosby’s accuser under oath so that we can search for the truth but they refused,” Wyatt said. “In this courthouse and in this state, we have always protected the liberty of our citizens by requiring accusations like these to be tested by an examination under oath but not today.

“Today a man who has meant so much to so many; a man who has given so much to so many; has had his constitutional rights trampled on,” he went on. “We truly believe that our Supreme Court will right this wrong and reverse this decision so that we can finish the mission of proving Mr. Cosby’s innocence.”

On June 8, Cosby’s attorneys filed a petition asking O’Neill to order Constand, now 43, to appear in person at a new preliminary hearing – or dismiss all charges against him, saying Cosby’s constitutional rights were violated by not having her appear in person at the preliminary hearing.

“The crux of prima facie we’re addressing today is – ‘What are the limits of the commonwealth’s reliance on hearsay for a criminal case in Pennsylvania?” argued Christopher Tayback, one of Cosby’s attorneys.

“The commonwealth’s argument is that there are no limits, that it can use multiple levels of hearsay to prove any and all elements of any and all offenses and that is sufficient,” he argued. “I don’t believe that’s the law. We know there are limits.”

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Montgomery County District Attorney Kevin Steele, under questioning by O’Neill, told the judge not having a victim testify at a preliminary hearing is the practice for all sexual assault cases in his office.

“It’s our position that we’re not going to re-traumatize victims if we don’t have to,” Steele told the judge. “We have proven this case at a prima facie level. We ask the court to bind over the charges so we can proceed to trial in this case. – and do justice

Cosby’s attorneys were challenging part of Rule 542 of the Pennsylvania Codes of Criminal Procedure, which states hearsay evidence alone is enough to establish a prima facie case against an offender.

They based their argument in part on the case of Dave Ricker in West Hanover Township, Pennsylvania, who is charged with attempted murder and other offenses for allegedly shooting a state trooper in June 2012. Neither of the troopers who were present testified at his preliminary hearing; instead the prosecutor played an audio tape of the trooper who’d been wounded. Ricker argued his constitutional right to confront witnesses was violated.

The Pennsylvania Superior Court rejected this argument but the state Supreme Court has agreed to hear an appeal on the matter. For the time being, though, the Ricker case is the precedent, argued Montgomery County Deputy District Attorney Robert Falin.

“Ricker remains the binding precedent even though the Pennsylvania Supreme Court granted the petition to allow an appeal,” he said.

He also took issue with Cosby’s lawyers argument that Ricker’s appeal was only based on a defendant’s right to confront his witness – not that his due process rights were violated, which is part of their argument.

“Their fallback argument is due process,” Falin said. “That’s a bit of a shell game, Your Honor. If you don’t have a 6th Amendment right to something, it’s unlikely you’re going to have a due process right.”

Keeping an eye on the case from afar was Ricker’s attorney, William Costopoulos, who tells PEOPLE he believes the state supreme court will hold a hearing on the case in September.

His client has not yet entered a plea, he says.

He says he sees the similarities between his client’s case and Cosby’s. In his case, the troopers were “right down the street” and the prosecution refused to call them as witnesses, he says.

“The victims in each case were available to the commonwealth and these are both very serious charges,” he says. “I think both Cosby and Ricker probably get held over for trial if the witnesses are called but call them.”