It outraged the many people who were absolutely certain Bill Cosby was guilty, because they read stories in the paper and believed, that the jury hung. This was still in the early days of believe the victim, evidence be damned, and why not toss out all those legal technicalities which prevent the “survivor” from obtaining “justice.”
But Cosby has been off the radar, as others who have done terrible things, nothing, and who-knows-what have become the targets of public castigation. In the interim, Cosby retained a new defense team, headed by Tom Mesereau, and they’ve been quietly doing the work of lawyers.
Defense lawyers Thomas Mesereau Jr., Samuel W. Silver and Kathleen Bliss filed court documents Thursday contending alleged victim Andrea Constand previously testified the sexual assault occurred at Cosby’s Cheltenham home before Jan. 20, 2004, forcing prosecutors to prove that the incident occurred on an evening somewhere within a 22-day window between Dec. 30, 2003, and Jan. 20, 2004.
The statute of limitations for the crime is 12 years. Montgomery County prosecutors charged Cosby with aggravated indecent assault on Dec. 30, 2015.
Defense lawyers argued prosecutors must prove, with “reasonable certainty,” that the alleged encounter occurred more recently than 12 years before the date of the criminal complaint — that is, on or after Dec. 30, 2003, or the case must be dismissed.
Statutes of limitations are, standing alone, controversial in rape cases. And so they were lengthened to accommodate the cries for prosecution well beyond the expiration date of most people’s defense. But Bill Cosby, unlike most defendants, still had the records of phone calls, appearances, and accoutrements of a star’s life, available to him.
While his trial team obtained a hung jury, no small feat under the circumstances, his new team did the plodding work lawyers need to do to defend their client.
In 2003 and 2004, Mr. Cosby had an incredibly active career and was in high demand for performances and appearances. Mr. Cosby’s itineraries, travel records and other contemporaneous documents establish that he was not in Pennsylvania on any day between December 30, 2003, and January 20, 2004,” the defense team wrote in court documents.
Court documents filed by the defense, dissected the travel records, telephone records and work schedules of both Cosby and Constand during the three-week period of January 2004.
It was Constand’s claim that the crime occurred before January 20, 2004. The Statute of Limitations set the outside date of December 30, 2003. If the case was to be maintained, then the crime had to occur between those dates. Except Cosby had contemporaneous documentary evidence that during that period, the one place he was not was Pennsylvania.
And it wasn’t just Cosby’s records, but his accuser’s as well that proved he was not within the jurisdiction during the relative time period.
Defense lawyers argued Constand previously testified that she and Cosby spoke the day of the alleged incident to arrange their meeting for that evening and that she called Cosby when she was nearby and asked to be let into the driveway to his mansion.
“Most significantly, Ms. Constand’s own telephone records demonstrate she did not make the calls she claims to have made to Mr. Cosby to coordinate plans for the evening or secure access to his home on any of the nights in the date range,” Mesereau, Bliss and Silver wrote in court papers.
“Further, on numerous dates within the date range, she made calls during the time of evening she claims to have been unconscious,” the defense lawyers argued.
The motion to dismiss isn’t sexy. There’s no smoking gun evidence that can’t be rationalized away with some weaseling, such as, “big deal, so she got the dates wrong. That doesn’t mean she wasn’t raped by that man.” It was long ago, and mistakes can happen.
After all, aren’t there a litany of excuses to explain why the witness who gets the details right is telling the truth, and the witness who gets the details wrong is telling the truth too?
“Ms. Constand’s fabrications have boxed her, and by extension the commonwealth, into a corner,” the defense team wrote. “Her inconsistent and contradictory statements are not supported by the only objective proof in this case: the records.”
When presented with “this incontrovertible evidence,” prosecutors cannot prove the charges against Cosby and as a result, “the case must be dismissed,” the defense team wrote.
Believe the “victim”? But if the hard evidence conclusively proves her claim false, what then? It’s certainly possible that believers will forgive her for claiming the rape occurred on the wrong date. After all, everybody knows how traumatic it is to be the victim, and to expect traumatized victims to be factually accurate is to expect too much. There is an explanation for every failing.
The motion to dismiss appears to be conclusive. The defense has presented incontrovertible evidence. The prosecution can respond with rhetoric and excuses, but beyond Constand’s testimony, it’s got nothing. Excuses are not a substitute for proof, no matter how much you want them to be.
The dismissal of the charges against Cosby on the basis of this motion may be unsatisfying to those certain of his guilt. It will be called a technicality, even though it goes to truthfulness and accuracy of Constand’s accusations. Falsus in uno, falsus in omnibus covers the rest, as her claims fall apart.
But it will convince no one of Bill Cosby’s innocence. America’s Dad, that black man that even white folks liked, who spent a great deal of his career trying to help others to overcome the stigma of racism, all destroyed when women came forward, who at one time sought to bask in the glow of his star, until later when their anger served them better, is done. Gone. There is nothing to be done that will ever return Bill Cosby to his former status.
Even so, the hard work of plodding through his itinerary from 2003-04 by his legal team conclusively proved that no matter what he did, what he was, he wasn’t in Pennsylvania, and Andrea Constand’s accusation was false. Unsatisfying though it may be, this is a great legal work. Dismiss the charges. Bill Cosby is innocent.
H/T Bruce McLeod
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Excellent! Unfortunately, not all of us defendants are successful in obtaining competent, diligent legal assistance the way some famous, well-heeled defendants can. My lady judge in New Haven instructed the jury: “Date and time are not an element of the crime.” [Verbatim from the transcript.] What! Are you kidding me? Date and time are elements of any and all crimes. How could it be otherwise. They don’t teach this in law school anymore?
If it were otherwise, “the state could charge anyone with any crime anywhere, anytime, without warrant or probable cause and get a conviction in real time.” That is exactly what I told the 2nd Circuit Court at my own oral hearing on Federal appeal, pro se, Foley Square. Or was it Folly Sq.? Wore a Brooks Brothers suit too, and a silk tie! I’mma handsome dude standing there before three robed-ones?!? The 2nd Circuit was not moved, in an unpublished opinion. They and the CT judiciary can k!$$ my everlovin’ ass in Macy’s window. Nuff said.
And you thought the Legislative branch was dysfunctional and incompetent?!? George Soros may be correct: Our Western experiment in representative government may be collapsing before our eyes. And I wish they (mainly the fake-news press) would stop calling “victims”, *survivors*. There is most certainly a difference with a distinction. My family made certain that their children and grandchildren could read and write, clearly and correctly. These abilities seem to be in short supply these days, even on the legal *benches* of Amerika.
Bill. Have we not discussed your being the first comment with a deep dive into your personal rabbit hole? Do I need to send you to time out?
Couldn’t wait for Patrick or B. McCloudy Day. It’s raining here, and am not walking the dog this morning. He will have to wait. Sundays are different; rules don’t apply.
Okay all the rest of you, get up and start piling on! Maybe Fubar will submit a creative poem or limerick. Cannot wait!
Perhaps in Pennsylvania “Here’s proof that I’m not guilty as charged” is a basis for getting a court to dismiss criminal charges. Not so in Ohio where, as the courts like to point out, testing that proof is what trials are for and we don’t have no summary judgment in criminal cases.
As far as the courts are concerned, the prosecutors, once they’ve got that indictment, are free to put the legally (and perhaps factually) innocent guy through the turmoil and risk of a trial if they’re so inclined.
The challenge is to the statute of limitations, as Constand gave a time range for the accusation and was incapable of providing an actual date. If, by irrefutable documentary evidence, the only period of time remaining within the statute is precluded, then it falls outside the statute if at all.
Except that whether the documentary evidence is irrefutable is, at least in Ohio, an issue to be resolved at trial (unless the prosecutor can be convinced to drop the charges).
Now, if you can prove that the indictment issued after the SOL from the date charged in the indictment expired, that’s a pretrial dismissal because the indictment is facially invalid. (I had a case where the indictment wasn’t returned until after the SOL had run.)
If the documentary evidence, which appears to consist of evidence from both sides of the case, is irrefutable, the prosecution will no doubt offer its refutation in its opposition, in which case it will be factual issue to be resolved at trial. It’s now up to the prosecution to raise an issue of fact to be resolved, if such an issue exists.
Even assuming that Tom and his team have enough, is it too little too late? In civil cases, the statute of limitations can be waived if not timely raised. But not being a CDL, I don’t know whether the same rule applies to criminal cases. (Not having reviewed the full court proceedings, I’m assuming for this question that the S/L defense was not timely raised and then preserved.)
It’s jurisdictional. No waiver.
That’s good, regular lawyering..
I don’t know anyone on the original team, but Tom is a great, regular lawyer. Greatness doesn’t take brilliance (though he is brilliant), but hard work.
“She got the dates wrong” seems to be the only weaseling available. Googling says that they tried to get the charges dismissed on this basis pre-trial. According to that motion, the complaintant gave dates ranging from second week of January, to Mid-January to Mid-February and March 16th in various statements.
I can’t find the present motion online. I assume it’s a motion for judgment of acquittal or state law equivalent. If that was the ONLY evidence presented of the date of offense during trial, then Cosby wins. If the other possible dates were put into evidence properly, and there isn’t the same definitiveness on those alternative dates, then the court should deny the motion.
I assume at trial, she had to give an answer.
I assume “before January 20, 2014” was her direct testimony at trial as well. It is still possible that evidence of an alternative date was submitted into the record as well. For example, a police report saying she said it happened in February which the court ruled was an excited utterance and therefore not hearsay.
If that alternative is not in the trial record, Cosby wins. So it’s not enough for the prosecution to weasel that she got the date wrong. The weaseling would have to be supported by an alternative date properly submitted into evidence. Impossible to know without combing the trial record, but I would expect that Cosby wins this.
I would assume that, if there was a different time period to be addressed, Tom Mesereau would have addressed it. That’s the thing about good lawyers. They do good work.
“Outside the statute of limitations” is not equal to “innocent.” Even though it entitles you to an acquittal.
The presumption of innocence remains intact until conviction. If there’s no conviction, than innocent it is. Non-lawyers typically fail to grasp this foundational point.
Mainstream media channels did a poor job of explaining this filing last week when it hit. I had to sift through a couple of accounts to see what the story was about, and to realize that this is a solidly worked and potentially case-ending motion. Instead of simply assuming that the first defense trial team would have fact-checked the limitations issues, Cosby’s new team went back to basics to do the tedious, step-by-step research needed to develop this defense and present it to the court in a compelling manner. Basic, nuts-and-bolts careful practice that shows the importance of remembering to check each premise that has to be met for the Commonwealth to proceed against the client.
Once again, not in Ohio.
If your reporting of PA law is correct, Ohio takes a completely different (and noticeably worse) view of these things than does its neighbor to the east.
OK, that was supposed to be a reply to SHG’s statement that the SOL is jurisdictional. Capcha made me send it three times and it apparently ended up in the wrong spot.
[Ed. Note: I figured. You old men and your technology.]
Had this been a post about Ohio, this would be an illuminating comment. But it’s not.
I view it as my job to spread the darkness.
I thought that was my job.
We few, we happy few, we band of brothers.
And now, I must return my attention to editing the brief in which I argue that my client didn’t really kill that dude – or at least that the State didn’t prove he did.
Mine too. Captcha is a pain. First and last comment of the day. Gotcha! We luv Ohio too, Jeffrey. Nice state to travel thru on the way to Chicago. Flatter than PA. Statutes of limitation are apparently impotent and routinely ignored in the legal arena. They’re rather arbitrary, and jurisdictional considerations make them tricky. Maybe they should be abolished and banned to the dustbin of *jurisprudence*? Over and Out, stop-watch-breath.