Over defense objections, Cosby ordered to stand trial

Bill Cosby was ordered to stand trial Tuesday on sexual-assault charges. But the decade-in-the-making courtroom confrontation between the entertainer and his accuser was deferred for another day.

At the case's first evidentiary hearing, Montgomery County prosecutors opted not to call Andrea Constand to testify - a move Cosby's lawyers decried as "garbage."

Instead, investigators read into the record portions of statements she and Cosby gave to police in 2005, airing for the first time Constand's account of the night she says he drugged her, put his hand down her pants, and forced her in turn to touch him.

"I got scared," Constand told detectives a year after the alleged 2004 assault at Cosby's Cheltenham home. She said Cosby gave her wine and three blue pills that made her woozy.

"I had no strength in my legs. They felt rubbery and like jelly," she said. "I felt spacey. Everything was blurry or dizzy. I had no thought to call 911."

District Judge Elizabeth McHugh acknowledged that Constand's absence from the Norristown courtroom was a "risky" move by prosecutors. But she rejected defense characterizations of Constand's story as unbelievable, saying she found the statements compelling enough to move the case forward.

Her decision sets up for trial the only criminal case against the comedian, whose reputation as "America's Dad" has been tainted by allegations of sexual misconduct by more than 50 women.

Cosby, 78, signed a waiver of his formal arraignment scheduled for July, entering an automatic plea of not guilty. No trial date was set.

Dressed in a dark suit and burgundy tie, he sat quietly throughout the 3 ½-hour hearing, often with his chin in his hand, asking his lawyers to read him court documents - because, they said, he is blind.

Lawyer Brian J. McMonagle called the decision to not have Constand testify "a travesty of justice." He aggressively questioned Constand's credibility and discrepancies in three statements she gave to police.

"What we just got in this courtroom today were words typed on a paper 11 years ago," he told the judge. "A statement that was crossed-out, reworked, and re-done about an event that happened 12 years ago."

At one point, as McHugh barred McMonagle from reciting portions of Constand's statement recounting the contact she had with Cosby after the incident, his frustration boiled over.

"So should I just leave?" he asked the judge. "They could have mailed you this statement, circled what they wanted you to read, and none of us would have had to show up."

McHugh later cut him off: "Mr. McMonagle, I think you're grandstanding a little bit."

Tuesday's hearing came five months after the county District Attorney's Office charged Cosby with aggravated indecent assault, and more than a decade after Constand first came forward.

The case has attracted international attention. News satellite trucks lined a Norristown street and dozens of reporters and spectators packed the courtroom.

Gloria Allred, a lawyer who represents several of Cosby's other accusers, attended Tuesday's hearing. She declined to speculate afterward on whether her clients will have a chance to testify against Cosby at trial. She said the decision would be left to prosecutors, one of whom she greeted in the courtroom with a hug.

In not calling Constand to the stand, prosecutors took advantage of a Superior Court ruling last year that cleared the way for prosecutors to use statements to police instead of direct testimony from accusers as their sole evidence at preliminary hearings.

Constand was available to testify if needed, they said.

"There's only one person in this room that chose the path we're on today, and he's sitting right there," said Assistant District Attorney M. Stewart Ryan, pointing to Cosby.

Cosby has denied Constand's allegations since she came forward, insisting that their encounter was consensual.

After her complaint, Cosby offered to pay for Constand to attend graduate school, according to the statement he gave Cheltenham police in 2005.

"I knew she was interested in graduate school," he told detectives who went to New York to interview him about Constand's allegations, according to the statement, read in court. His offer was contingent upon her keeping a 3.0 GPA.

The offer came after Constand's mother called Cosby to confront him about the alleged assault.

"I recognized her antagonism and told her to put Andrea on the phone, because I was startled by her tone," he said.

Cosby's statement was read into the record by John Norris, chief of the Cheltenham Police Department, who was present during the interview 11 years ago.

In it, Cosby described his sexual encounter with Constand in details that often overlapped with her version. Both recalled that he gave her pills and wine. Both said that they never had intercourse but that other sexual activity occurred.

Yet their accounts differed on a key point. Constand said she was "in and out" of consciousness and unable to consent, while Cosby said their liaison was consensual.

She never told him to stop or pushed him away, Cosby said.

"We began to pet - touching, kissing with clothes on," he told police, according to his statement. "I never intended to have sexual intercourse like naked bodies with Andrea. We were petting and I enjoyed it."

Asked whether he had ever had intercourse with Constand, Cosby replied, "Never asleep or awake."

But, according to the statement, Cosby said he had other romantic encounters with Constand prior to the night of the alleged assault. He initiated, he said, but she was a willing participant.

He described one incident early in their relationship when he said Constand asked him to stop. He said he did, immediately.

District Attorney Kevin Steele argued that any prior interaction between Constand and Cosby was irrelevant. He said someone in a drugged state, as Constand was the night of the alleged assault, cannot consent to sexual acts.

"It didn't work out for [Cosby] the time before, so this time we've got drugs, we've got some wine," Steele said. "She was incapable of consent."

McMonagle, however, pointed to Constand's behavior before and after the alleged assault.

While prosecutors only introduced Constand's first in-person interview with police, the defense referred to a second interview and to her first phone call to police, in which she offered a different date for the alleged assault.

The defense lawyer also noted that Constand and Cosby exchanged gifts before and after the incident - she had given him Temple basketball T-shirts and bath salts; he gave her a stopwatch and cashmere sweaters, according to their accounts to police.

Months after she was allegedly assaulted, Constand also asked Cosby for tickets for his show in Toronto, McMonagle said. She went, and brought her family.

His repeated attacks on her credibility suggested a strategy the defense will continue if there is a trial.

"After hearing the weak, inconsistent, and incredible evidence presented, it is clear why the prosecution did not allow its witness to speak and be confronted by the person she has accused," McMonagle said after the hearing. "Mr. Cosby is not guilty of any crime."

Cosby has been free on $1 million bail since his arrest in December. He could face up to 10 years in prison if convicted.

After the ruling was announced, Cosby's personal security guards stood to guide him from the courtroom.

"Mr. Cosby, good luck to you, sir," the judge told him.

The entertainer rose quickly and replied, "Thank you."

lmccrystal@phillynews.com

610-313-8116 @Lmccrystal