Bill Cosby’s lawyers gave a blistering preview of the questions the actor’s accuser will face at trial, as a judge refused to dismiss the sex-assault case at a preliminary hearing.
The defense Tuesday attacked the consistency of Andrea Constand’s police statements; offered context to her friendship with Cosby; and insisted she gave consent to the sex acts that occurred at his home near Philadelphia in early 2004.
Constand did not testify, a decision meant to spare her from being cross-examined before trial. Under a recent state law, prosecutors can instead have witness statements read into the record.
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The defense objected to Constand’s absence during the half-day hearing, which marked the first time that police statements from either Constand or Cosby, 78, have been aired in public. Defense lawyer Brian McMonagle complained that he could not challenge her account.
“They chose not to present a witness to make an accusation against Mr. Cosby. So you’re left with what’s on that paper,” McMonagle argued referring to the statement.
No trial date has been set, and lawyers are expected to spend months arguing over what evidence can be used – most notably, whether other accusers can testify and whether Cosby’s deposition from Constand’s civil lawsuit can be used.
McMonagle on Tuesday suggested that Constand was having a relationship with a married man and that the pair had engaged in “petting” during a few earlier visits to his home. Constand, in her statement, said she had brushed off his advances.
On the night in question, she said that Cosby urged her to take three blue pills “to take the edge off” her stress and to wash them down with wine he had poured. Twenty minutes later, her legs turned to “jelly.”
“Everything was blurry and dizzy,” Constand told police. “I told him, ‘I can’t even talk, Mr. Cosby.’ I started to panic.”
McMonagle argued that Constand “voluntarily” took the pills and perhaps had a bad reaction. He said she was “incapacitated by her own hand, by her own drinking.” And he questioned her continued contact with Cosby in the year between their encounter and her first call to police.
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“After this incident, Ms. Constand stayed in touch with the defendant, met with the defendant, … accepted a dinner invitation, spoke to him on the phone, … and visited him in Canada at a concert,” McMonagle said in asking the judge to dismiss the case. “I know this is a preliminary hearing, but you have to look at it all.”
His arguments largely mirror those raised by former District Attorney Bruce L. Castor Jr. when he declined to press charges when Constand came forward in 2005. Castor has since become a defense witness of sorts, testifying that he had a binding agreement with Cosby’s lawyers that the case would never be prosecuted.
“It should have been stopped. It was stopped,” McMonagle argued Tuesday.
The defense also seized on discrepancies in the three police statements that Constand gave, including her shifting memory of precisely when the encounter occurred. As for the alleged crime, she said the comedian penetrated her with his fingers and fondled her after giving her what he said was herbal medication. She said she later awoke with her bra askew and did not remember undoing it.
District Attorney Kevin Steele described Constand as “paralyzed, incapable of consent.” He believes that makes one part of Cosby’s police statement especially odd.
Asked if he had sexual intercourse with Constand, Cosby said he had not – “neither asleep nor awake.”
Dozens of other women have come forward since 2005 to accuse Cosby of molesting them over the past 50 years. Some said they passed out after drinking something he gave them.
In his police statement, Cosby said that Constand never said “no” as he put his hand down her pants. He told police the pills were over-the-counter Benadryl that he takes to help him sleep.
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Cosby settled with Constand for an undisclosed sum in 2006 after testifying behind closed doors about his extramarital affairs, his use of quaaludes to seduce women and his efforts to hide payments to former lovers from his wife.
But prosecutors reopened the criminal case last year after dozens of women leveled similar allegations and after Cosby’s sealed testimony in Constand’s lawsuit was made public.
Cosby is also fighting defamation lawsuits across the country for allegedly branding his accusers liars and is trying to get his homeowner insurance to pay his legal bills.
The Associated Press does not normally identify people who say they were victims of sex crimes unless they agree to be named publicly, which Constand has done.