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Time hasn't run out on possible charges against Cosby in Pa.

Dozens of women have come forward this year to accuse Bill Cosby of sexual misconduct, their allegations bonded by one undisputed fact: Each claim is too old to prosecute.

Montgomery County District Attorney Risa Vetri Ferman will neither confirm nor deny whether her office is considering reopening the Bill Cosby case.
Montgomery County District Attorney Risa Vetri Ferman will neither confirm nor deny whether her office is considering reopening the Bill Cosby case.Read moreStaff file photos

Dozens of women have come forward this year to accuse Bill Cosby of sexual misconduct, their allegations bonded by one undisputed fact: Each claim is too old to prosecute.

But the clock is quietly ticking in Montgomery County on an exception.

A decade ago, Andrea Constand first reported to police that Cosby had drugged and molested her during a January 2004 dinner at his Cheltenham mansion. Under Pennsylvania's 12-year statute of limitations on felony sex crimes, prosecutors still have until January to bring charges.

And though Constand's claim was once investigated and closed, hers may be the rare allegation that has actually grown stronger with time, according to interviews with a dozen veteran sex-crimes prosecutors, defense lawyers, and criminal justice experts.

Montgomery County District Attorney Risa Vetri Ferman would neither confirm nor deny whether her office was reconsidering the case her predecessor closed a decade ago.

However, in a statement Friday, she said: "I believe prosecutors have a responsibility to review past conclusions, whether their own or a predecessor's, when current information might lead to a different decision."

Whether Constand, now 42 and living in Toronto, would agree to cooperate in such a prosecution is unclear. She and her lawyer, Dolores Troiani, did not respond to requests for comment.

Cosby and his attorneys have repeatedly declined to discuss the allegations beyond denying that he assaulted Constand or any other woman.

But the allegations this year by more than 40 women that the 78-year-old comedian drugged and assaulted them mirror Constand's claim. And Cosby's own, potentially damaging sworn statements about his sexual past were released publicly for the first time this summer.

"We now have something pretty close to an admission from Cosby," said Roger A. Canaff, a former New York deputy attorney general focused on sex-crimes cases. "We now have dozens of women reporting abuse along similar lines. Where there's that much smoke, there's usually fire."

'Modus operandi'

Back in 2005, it wasn't that simple, said Bruce L. Castor Jr., who as Montgomery County's then-district attorney spearheaded the original Constand investigation.

"The statement she gave police did not provide sufficient detail on which a criminal charge could be based," Castor said in an interview this month. "Her statement was consistent with a woman who had been drugged and couldn't remember what happened to her."

According to the court filings, Constand told investigators she met Cosby while working as the operations manager for Temple University's women's basketball team. After striking up a friendship with the entertainer - one of the university's most vocal boosters - she became a frequent visitor at his Cheltenham home, where he often offered her career advice over dinner.

Constand complained of a headache during one of those meals. After taking pills the comedian offered, she felt "dizzy and sick," she later told police. She awoke hours later to find her clothes in disarray and Cosby groping her, the report said.

Cosby, under questioning from Montgomery County detectives, said that he only gave Constand the drug Benadryl and that the two had had a consensual sexual encounter that night.

"I felt Cosby was being deceptive," Castor said, discussing the case 10 years later. "But you can't stand up in court and say, 'My gut feeling is that he did it.' "

Now, though, prosecutors could turn to Cosby's other accusers to bolster Constand's claims in court - even if their alleged assaults happened decades ago, occurred in other jurisdictions, or were never reported to police, legal veterans say.

Pennsylvania law allows accusers whose claims have not been prosecuted to testify as witnesses in sexual-assault cases - a tactic that Philadelphia assistant district attorneys used in 2012 against a high-ranking monsignor accused of ignoring or covering up decades of child sex abuse by priests.

But prosecutors must first convince a judge that the testimony isn't unfairly prejudicial to a defendant - especially if the witnesses they want to call never reported their accusations to police. And they must argue that the evidence will persuade a jury that the accused employed a common approach in committing similar crimes.

"It's not enough to say, 'The defendant assaulted me,' " said Deborah Tuerkheimer, a professor at Northwestern University School of Law. "It's got to be along the lines of what some judges refer to as modus operandi: Really, this is the way that this defendant did business."

Ferman, the two-term district attorney who would oversee any revived Constand investigation, has personal experience winning a sex-crime conviction based on testimony from accusers whose allegations fall outside of prosecutable time limits.

In the 1997 prosecution of Cheltenham schoolteacher John Carroll, Ferman, then an assistant district attorney called three victims as witnesses who detailed decades-old assaults to show a jury his molestation of a middle-school boy followed a pattern of behavior.

Los Angeles police have adopted a similar approach in investigating a 24-year-old woman whose allegations against Cosby may fall within the statute of limitations in that state. Prosecutors there have not said if or how they will proceed.

Several of Cosby's accusers have said they were aspiring actresses or models who turned to the comedian for career advice and then were attacked. Nearly all allege he used some form of drug that rendered them unable to resist.

"The more similarities you have, the better you are," said John Clune, a Denver lawyer who represented an accuser of basketball player Kobe Bryant in a 2004 sexual-assault civil suit that was ultimately settled out of court. "Even with just the facts that there was always some sort or power imbalance - along with an alleged use of drugs to overcome a victim's will - that would potentially be enough to make a pretty strong argument."

Castor's office heard from other Cosby accusers besides Constand during the 2005 investigation. But, the former district attorney said, he never felt confident a judge would let them testify.

"If you pull the trigger on a case that requires that testimony and the judge doesn't let it in," Castor said, "you end up looking like the biggest chump in the country."

His own words

Cosby's own words could end up helping prosecutors fill in the gaps - and could even prompt more serious charges against him, experts say.

Constand sued Cosby within a month of Castor's decision not to prosecute. The parties settled out of court in 2006.

This summer, the transcript of Cosby's four-day deposition in that case was released for the first time.

In it, Cosby acknowledged sexual relationships with Constand and multiple women, including some who have come forward publicly to accuse him of assault.

He testified that he had used quaaludes to elicit consensual sex in the past. And he said he had previously paid off women who had threatened to report him for sexual misconduct.

Cosby maintained throughout the deposition that he never sexually assaulted anyone.

Prosecutors could use his statements against him in court, said Karen Steinhauser, a University of Denver law professor and former sex-crimes prosecutor.

"Even though they decided at that time not to press charges, the bottom line is it is still incriminating evidence," she said.

Cosby's own descriptions of the January 2004 encounter with Constand might also help investigators fill in previously unclear details from that night.

Because she was unconscious at the time, Constand only recalled Cosby groping her when she made her initial report to police. As a result, Castor's office was looking primarily at misdemeanor charges, which carry a two-year statute of limitations.

In the newly released deposition excerpts, however, Cosby described more advanced sexual activity with Constand that night. According to the transcript, Cosby recalled a phone conversation some time after the alleged attack in which he said of his contact with her: "It was digital penetration."

If true, such a statement could form the basis for a more serious felony charge, such as aggravated indecent assault, legal experts said.

Cosby's lawyers are likely to fight any effort to introduce that deposition transcript at a trial. They have argued in separate legal proceedings that it was improperly released and remains subject to a confidentiality agreement the comedian signed with Constand in settling the civil suit.

But defense lawyers would face a challenge in trying to bar it in a criminal case, said Lisae C. Jordan, director of the Sexual Assault Legal Institute in Maryland.

"Even if you can make that argument, a judge will have to decide whether it would be unfair," she said. "That's going to be a hotly contested issue between the prosecution and the defense."

A decision looms

Despite the new claims, it is unclear if Constand wants to reopen her case.

Since settling with Cosby almost a decade ago, she has been barred from speaking publicly about her allegations. That restriction, however, is unlikely to prevent her participation in a possible prosecution, said Clune, the Denver lawyer.

"You can't reach a private agreement between parties that would prevent somebody from testifying if they're given a lawful subpoena," he said.

And in recent court filings, Constand has signaled a desire to speak out. In July, she asked a federal judge in Philadelphia to void the terms of her confidentiality agreement with Cosby.

For his part, Castor remains skeptical about the success of any new prosecution.

"Even today, if I had all the stories that have now accumulated, I'd have to look long and hard before I brought charges," he said.

His comments are more than speculation. He is running in November to regain the seat as district attorney.

But it is Ferman who must ultimately decide - with just four months until Constand's time runs out. That span coincides with the end of her tenure as prosecutor, and her attempt to win a judgeship.

For now, she's keeping quiet on where she stands.

"While it takes tremendous courage for a victim of a sexual assault to stand up and speak out, charging decisions are not made based on our respect for the courage of a witness," she said. "Rather, they are made based upon a review of the factual information available at the time and a prosecutor's analysis of whether allegations of criminal conduct can be proven beyond a reasonable doubt."

215-854-2608 @jeremyrroebuck