(Updated with formal statement from Cosby lawyer) 3RD UPDATE, 9:59 AM: Bill Cosby will face a trial on criminal charges of allegedly drugging and sexually assaulting Andrea Constand in 2004, Judge Elizabeth McHugh has just ruled. Cosby has waived a formal arraignment appearance so the process moves straight to a trial on three felony second-degree aggravated indecent assault charges — or a plea bargain.
Outside the Norristown, PA courthouse, Cosby lawyer Brian McMonagle called the ruling a “travesty of justice.” He went on to say that what the Montgomery County D.A.’s office “presented today was evidence of nothing.” D.A. Kevin Steele says Constand will testify at the trial if necessary but her presence at the preliminary hearing today was not required.
A trial date is expected to be set by late July.
Tuesday’s hearing lasted about four hours with several short breaks. The big question mark going forward, and you can be sure the subject of many, many motions from both sides, will be if others from the over 50 women who claim that Cosby assaulted them will be allowed to testify. Cosby has spent the past six months trying to get civil cases all over the country put on pause while the criminal charges matter moved forward or was dismissed -now that a trial is happening, many of those cases may come off the bench so to speak.
(Statement from Cosby attorney Brian McMonagle, 11:53 AM: Today, in Montgomery County, Pennsylvania, 12 years after the alleged incident in question, the Commonwealth had an opportunity to put the complaining witness on the stand but refused. After hearing the weak, inconsistent and incredible evidence presented, it is clear why the prosecution did not allow its witness to speak and be confronted by the person she has accused. Instead, they chose to rely on an 11 year old hearsay statement from that witness, riddled with numerous corrections and inconsistencies.
2ND UPDATE, 9:57 AM: After hearing from three witnesses this morning a preliminary hearing, Pennsylvania Magisterial District Justice Elizabeth McHugh is now deciding if the criminal case against Bill Cosby over the alleged 2004 rape of Andrea Constand will go forward or not based on the evidence. A ruling is expected very soon.
If the Norristown, PA judge says it will move forward, an arraignment hearing is the next step in the process followed by the setting of a trial date. If found guilty on the trio of felony second-degree aggravated indecent assault charges, the 78-year old Cosby be behind bars for up to 10 years.
UPDATE, 8:16 AM: Bill Cosby’s lawyers went on the offensive fast at today’s preliminary hearing in Pennsylvania on criminal charges that could see the 78-year old actor in jail for 10 years for an alleged 2004 sexual assault of Andrea Constand. “At no point in time,” Cosby attorney Brian McMonagle asked the Montgomery County Detective Bureau’s Katharine Clark on Monday, “did she ever tell Mr. Cosby ‘no?’ ” The implication is that the occurrence between Cosby and Constand was consensual, as the actor has insisted in recent years.
Clark told Judge Elizabeth A. McHugh’s Norristown, PA courtroom that Constand did not ever say “no” because she said she was “paralyzed” by drugs Cosby had given her at his suburban Philadelphia mansion on the day in question in January 2004.
The detective then read out the original statement that the then-Temple University employee had provided 12 years ago where Constand describes Cosby giving her pills and wine, and then she felt a sense of wooziness. Constand claims Cosby then sexually assaulted her and she was unable to tell him to stop.
“I remember Mr. Cosby positioned himself behind me,” Constand told investigators in her statement. “I was unable to move my body. I was pretty much frozen… I was unable to speak. I was, like, paralyzed.”
The judge ruled that Constand herself does not testify in the preliminary hearing that could be the next step to a trial for Cosby. Instead, statements Constand gave to law enforcement can be read out in court by others on the witness stand.
Police Captain John Norris today read out a 2005 statement from Cosby where the actor told authorities he did not have any form of intercourse with Constand. “Never asleep or awake,” Cosby said.
A year after the allegedly assault, Constand reported the incident to police in Canada where she had moved back to. Canadian law enforcement passed details to the local police in Pennsylvania in early 2005, but then-D.A. Bruce Castor refused to prosecute based on what he has since said was a lack of evidence. Castor then pledged a no prosecution agreement for Cosby if the actor would waive his Fifth Amendment privileges in any civil case stemming from the matter. Constand filed a civil lawsuit against Cosby that was settled in 2006 – though the actor now wants his money back after the current Montgomery County D.A. pressed criminal charges in late 2015.
The now-unsealed deposition Cosby gave in that civil case has revealed the actor did use prescription pills to intentionally drug women and teens for sex as well as making payments through his then-agents at William Morris to women he’s been involved with – some of whom were sent over to him on set weekly by a modeling agency.
The preliminary hearing continues today.
PREVIOUS, 6;54 AM: After a last-ditch attempt to stymie today’s preliminary hearing failed, Bill Cosby arrived in court just now have to face Pennsylvania prosecutors as they seek to move towards a trial on a trio of felony second-degree aggravated indecent assault charges that could land the 78-year-old behind bars for a decade. The proceedings before Judge Elizabeth A. McHugh are expected to last at least a day as the Montgomery County D.A.’s office lays out evidence of Cosby’s alleged 2004 drugging and rape of then-Temple University employee Andrea Constand.
Walking arm-in-arm with a bodyguard, Cosby arrived at the Montgomery County Courthouse about 15 minutes before the scheduled 9:30 AM ET start of the preliminary hearing, The actor appeared to be in better shape than his last court appearances back here in early February when he unsuccessfully tried to have the whole matter stopped based on a no-conviction promise from a former D.A. Today, Cosby wasn’t noticeably limping, and smiled and waved at supporters as he entered the courthouse.
In Tuesday’s hearing, the prosecutors will present their case that there is a probable cause that Cosby committed the crimes and hence the charges are justified. Witnesses may be called, including Cosby, who has to be in attendance under PA law, and Constand. The standard in such a preliminary hearing is lower that the notion of “beyond a reasonable doubt” and if the judge decides there is enough evidence for a jury, the next step is to set a formal arraignment date and then next a trial date. For the D.A.’s office in matters such as this, the fine balance is to present just enough evidence to move the matter forward but not reveal all your cards to the defense.
Amidst all the claims and cases that Cosby is facing from over 50 women who say the actor assaulted them over the year, the PA case is the only criminal case at present. Then newly elected D.A. Kevin Steele laid the charges against Cosby right at the end of 2015 to beat the Keystone State’s 12-year statute of limitations for such crimes. Cosby was arraigned December 30 and released on $1 million bail without entering a plea. After the then D.A. declined to press criminal charges back in 2005, Constand and Cosby had come to a settlement in 2006 in a civil case — a settlement Cosby now wants back because he says Constand and her attorneys broke the confidentiality agreement of that deal. On May 13, Constand’s lawyers filed a motion to have Cosby’s case against her, her mother, her 2005 attorneys and National Enquirer owner American Media dismissed.
A team of lawyers represents Cosby from L.A., D.C. and Philadelphia led by the actor’s main attorney Christopher Tayback of Quinn Emanuel Urquhart & Sullivan LLP.
Anna Orso & Chris Krewson contributed to this report