NORRISTOWN, Pa. _ Bill Cosby's attorneys urged a judge Thursday to throw out their client's sexual assault charges, saying prosecutors' decision not to call accuser Andrea Constand to testify at a preliminary hearing earlier this year irreparably damaged his rights.
"You have to have some meaningful opportunity to ask questions of the witness whose statement is really the basis of the prosecution," Cosby attorney Christopher Tayback said.
He urged Montgomery County Court Judge Steven T. O'Neill to dismiss the case or require Constand to testify at a new hearing, saying Cosby had a right to confront her in court before trial.
But prosecutors defended their decision at the May hearing to rely instead on Constand's 11-year-old statement to police to persuade a lower court to clear the case to proceed to trial.
District Attorney Kevin R. Steele maintained that the right to confront witnesses in court does not apply to pretrial hearings, where prosecutors need only show that they had enough evidence to present a plausible case at trial. What's more, he accused Cosby's legal team of using the hearing to try to discredit Constand.
"It's our position that we are not going to re-traumatize victims at preliminary hearings," District Attorney Kevin R. Steele said. "They had their shot at (Constand)."
The hearing, which continued Thursday afternoon in a Norristown courtroom, is the latest effort from the 78-year-old entertainer's legal team to fight off the sole criminal case to emerge from allegations from dozens of women who say Cosby drugged and sexually assaulted them.
O'Neill asked pointed questions as both sides made their arguments. Should he rule in favor of Cosby, he could dismiss the case entirely or send it back to magistrate court for a new preliminary hearing and require Constand to testify.
"We're having an argument that's really going to affect how this case proceeds," he said.
Pennsylvania law on the matter remains unsettled.
Prosecutors typically seek to limit testimony from accusers at preliminary hearings because if they say anything under oath that differs from testimony they offer at trial, defense attorneys can use the discrepancies to attack their credibility. For that reason, defense lawyers value the opportunity to probe accusers' stories before a case heads to trial for inconsistencies.
Earlier this year, the Pennsylvania Supreme Court agreed to review a lower-court ruling in a separate case that approved the use of police statements instead of direct testimony from accusers as prosecutors' sole evidence at preliminary hearings.
Unless the state high court says otherwise, Steele argued in court filings last month, that ruling remains the guiding authority in the state.
At the May hearing in the Cosby case, District Judge Elizabeth McHugh acknowledged Constand's absence from the hearing was a "risky" move for prosecutors, but still approved the case for trial based on lengthy excerpts from her police statements that prosecutors read into the record.
In them, Constand alleged that Cosby drugged and assaulted her in 2004 during a visit to his Cheltenham mansion.
Cosby has repeatedly denied Constand's allegations. While he described a sexual encounter with her in his own statement to police _ which was also read into the record at the hearing _ he described it as consensual. He paid her an undisclosed amount to settle a civil suit.
