Bill Cosby is seeking to appeal his criminal case, arguing that his accuser should testify at a hearing before the case goes to trial.
This is his second attempt to have the criminal charges against him dismissed, if not dismissed Cosby is asking for a new preliminary hearing at which he would have the opportunity to confront his accuser, Andrea Constand.
In most cases, defendants are allowed to confront their accusers during the preliminary hearing. Cosby attorneys argued that their clients’ due process rights are too important an issue to be denied review. The current case law in Pennsylvania lets prosecutors use police statements to spare victims the ordeal of repeated court testimony.
At the May 24 preliminary hearing, Cosby’s case was sent to trial, without prosecutors calling Constand as a witness, but instead used police statements as evidence. Cosby’s lawyers said his due process rights were violated at the preliminary hearing and that Kevin Steele, the district attorney “win-at-all-costs tactics in this matter are stretching the rules past the breaking point,” at the expense of Cosby’s rights.
Steele relied on “hearsay”and detectives’ recollections about Constand’s statements. Cosby’s legal team argued allowing hearsay testimony was a denial of Cosby’s right to confront his accuser and “a complete denial of this defendant’s due process rights.” Cosby’s lawyer also argued that while Cosby should have the right to confront his accuser, Constand did not have to appear for the hearing.
But the state Supreme Court has agreed to reconsider the issue as it applies to the Ricker ruling. Cosby’s lawyers say Constand should testify in case the law is reversed.
The motion to certify mentioned that the Pennsylvania Supreme Court has taken up Commonwealth v. Ricker, which ruled that prosecutors can prove a prima facie case at a preliminary hearing based on hearsay alone. A similar issue was also raised in Commonwealth v. Dolan, the motion said, where the Bucks County Court of Common Pleas ruled that failure to have a victim testify when she was available was a due process violation.
“The issue involved in this case is one of paramount importance to the future of Pennsylvania’s criminal justice system,” the motion said, noting that the Pennsylvania Association of Criminal Defense Lawyers and the Pennsylvania District Attorneys Association have become involved in Ricker and Dolan as well.
Cosby filed his second petition for writ of habeas corpus in June, arguing that he was denied his due process right to confront his accuser at the preliminary hearing, where Constand was not called to testify.
O’Neill denied Cosby’s petition, ruling that prosecutors established a prima facie case against Cosby. O’Neill also said he did not believe it was the role of his court to contravene precedent from the Pennsylvania Superior Court in Ricker.
Kevin Steele ran his political campaign for DA against Bruce Castor stating he would charge Cosby for the crime Castor did not prosecute him on. In December 2015 moments after Steele was elected into office as the new DA he charged Cosby with three counts of aggravated indecent assaults based on Constand’s allegations that Cosby drugged and sexually assaulted her at his Pennsylvania home in 2004.
12 years ago in 2004 the former Montgomery County District Attorney Bruce Castor never charged Cosby, and still stand by his decision based on the reports and facts surrounding the alleged assault.
Cosby, 79, could face up to 10 years in prison per charge if convicted.
Cosby is out on a $1 million bail, Cosby has always insisted his sexual encounter with Constand in 2004 was consensual.