January 27, 2022

Cosby again seeks dismissal of charges

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Actor and comedian Bill Cosby, right, arrives for a court appearance Wednesday, Feb. 3, 2016, in Norristown, Pa.  Cosby was arrested and charged with drugging and sexually assaulting a woman at his home in January 2004.  A judge will decide whether to dismiss a sexual assault case against the comedian over an unwritten promise of immunity that a former prosecutor says he gave Cosby's now-deceased lawyer. (AP Photo/Mel Evans)

Actor and comedian Bill Cosby, right, arrives for a court appearance Wednesday, Feb. 3, 2016, in Norristown, Pa. Cosby was arrested and charged with drugging and sexually assaulting a woman at his home in January 2004. A judge will decide whether to dismiss a sexual assault case against the comedian over an unwritten promise of immunity that a former prosecutor says he gave Cosby’s now-deceased lawyer. (AP Photo/Mel Evans)

By Lizzy McLellan, From The Legal Intelligencer

Bill Cosby has launched a new effort to get the criminal charges against him dismissed in the Montgomery County Court of Common Pleas, filing a second petition for writ of habeas corpus.

In his petition, filed Wednesday, Cosby requested that the charges against him be dismissed, or in the alternative, that he be granted a new preliminary hearing at which his accuser, Andrea Constand, would be required to testify.

In a memorandum accompanying the petition, Cosby said his due process rights were violated at the preliminary hearing May 24. At that hearing, the felony sexual assault charges against him were held over for trial. Cosby was charged in December based on Constand’s allegations that Cosby drugged and assaulted her in 2004.

“The district attorney’s win-at-all-costs tactics in this matter are stretching the rules past the breaking point,” Cosby’s attorneys said in the memo.

At the preliminary hearing, Montgomery County District Attorney Kevin Steele requested that he be allowed to present the prosecution’s prima facie case based on hearsay, namely Constand and Cosby’s 2005 statements to law enforcement. Magisterial District Judge Elizabeth A. McHugh allowed it, but acknowledged that it may have been “a risky move.”

McHugh explained that she allowed the prosecution’s request because of the Pennsylvania Superior Court’s 2015 decision in Commonwealth v. Ricker, which held that hearsay can be the sole evidence in proving a prima facie case. Steele had argued that decision was “the law of the land.”

However, the Ricker decision has been taken up by the Pennsylvania Supreme Court for review.

“And now, despite the fact that the issue of whether the commonwealth can establish a prima facie case using hearsay alone is currently before the Supreme Court of Pennsylvania, the district attorney insisted on shielding Mr. Cosby’s accuser from cross-examination at the preliminary hearing, relying instead on hearsay alone, further violating Mr. Cosby’s constitutional rights,” Cosby’s memo said.

Cosby’s attorneys noted that the Ricker decision did not address the same due process questions at issue in Cosby’s case, and argued that Cosby had a due process right to confront his accuser. They said the Pennsylvania Supreme Court has never permitted hearsay as the sole evidence in a preliminary hearing.

Cosby’s memo also mentioned that the charges were not filed until just before the 12-year statute of limitations had expired. It said this was “an unconstitutional delay that will be raised in due course.”

The Montgomery County District Attorney’s Office declined to comment Wednesday.

Cosby filed a petition for writ of habeas corpus in January, less than two weeks after Steele announced the charges. In that petition, he argued that the charges should be dismissed because former Montgomery County District Attorney Bruce L. Castor Jr. promised in 2005 that Cosby would never be prosecuted in connection with Constand’s allegations.

After a two-day hearing on the matter, at which Castor and attorneys for Constand testified, Montgomery County Court of Common Pleas Judge Steven T. O’Neill denied Cosby’s petition, noting that a credibility determination was inherent in the ruling. Cosby appealed to the Superior Court, which quashed his appeal, and last month he asked the Pennsylvania Supreme Court for review.

IMAGE: Actor and comedian Bill Cosby, right, arrives for a court appearance Feb. 3, 2016, in Norristown. AP photo by Mel Evans

For more on this story go to: http://www.thelegalintelligencer.com/id=1202759605170/Cosby-Again-Seeks-Dismissal-of-Charges#ixzz4B5fsW8cw

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