On the way out to Bill Cosby‘s preliminary hearing at Montgomery County Courthouse early on Tuesday morning, my Uber driver Clarence made it pretty clear how he felt about the dozens of women who have come forward to accuse Cosby of sexual assault and other crimes.
Why did they wait so long to report it?
They got something out of it, too.
Did you know that Andrea Constand was Cosby’s girlfriend?
Did you know that she lied to the police?
Well, Clarence appears to have taken a page right of out the playbook of Brian McMonagle, Cosby’s lead defense attorney in the only criminal case against him. McMonagle exploited every opportunity to tear apart Constand’s credibility during the hearing, a proceeding she did not attend.
A preliminary hearing such as the one Cosby lost yesterday is not a trial and no guilt or innocence is determined. It is simply a hearing at which the prosecution offers some of its evidence, the defense has a chance to rebut and present its own case, and the judge decides if there is probable cause to move forward to trial. There’s no “beyond a reasonable doubt” standard at a preliminary hearing — more like, Yeah, that probably happened.
While the issue of credibility can make or break a case during trial, credibility is not to be considered during the preliminary hearing. The evidence is presented, but the judge does not consider whom to believe or not believe, and the attorneys are not allowed to delve into the credibility of witnesses and accusers.
But that’s exactly what McMonagle did time and time again. And in doing so, he evoked the most common myths and tropes in rape culture: She was drinking? Then it was her fault. She socialized with him after the incident? Then it never happened. She changed her story? It’s all fabricated. These were exactly the implications of McMonagle’s entire defense.
After former Montgomery County Detective Katharine Hart testified about the statement that Constand gave her in 2005, describing in detail Constand’s allegations that Cosby drugged her and put his fingers inside of her vagina and groped her breasts without her consent, McMonagle asked Hart whether Constand said she had been drinking on the night of the incident.
He continuously questioned Hart about handwritten changes that Constand made to her typewritten statement immediately after speaking with police, as if he didn’t know that complainants are typically given a chance to review and revise their statements and that making such changes is common.
The prosecution, under the direction of Montgomery County District Attorney Kevin Steele, objected over and over again to McMonagle’s line of questioning throughout the hearing, arguing that he was trying to go after Constand’s credibility at a hearing at which it was not an issue, which of course he was.
When McMonagle asked Hart about the promptness of Constand’s complaint to police, pointing out that she waited approximately a year to file her statement with the Montgomery County detectives, the prosecution was quick to object there as well.
“So I should just leave?” McMonagle asked Judge Elizabeth McHugh. “How could that not be relevant?”
After McMonagle questioned Hart about whether Constand ever told Cosby to stop during the incident in question — she didn’t — Steele countered that telling Cosby no would have been kind of hard to do, since she said very clearly in her statement that she was unable to speak in her drugged condition.
Once the prosecution rested, McMonagle called to the stand Richard Schaffer, a Montgomery County cop who was with Hart when Constand gave her statement. Schaffer actually spoke with Constand over the phone prior to her giving her official statement, and he memorialized that conversation on paper.
Under repeated objections from the prosecution, McMonagle attempted to use Schaffer to pick apart discrepancies between the phone conversation, the statement Constand gave to Hart and Schaffer, and a subsequent statement she gave to police, because of course if a woman changes details in a case like this, a year after an incident in which she was allegedly drugged, it must mean that she’s lying about the whole thing, right?
McMonagle also wanted to know why Constand would have gone to dinner with Cosby or asked him for tickets for her family to one of his shows, after he allegedly drugged and sexually assaulted her, both things that she appears to have done.
“You’re not supposed to leave your common sense outside,” McMonagle instructed the judge in his closing statement before suggesting that Andrea Constand didn’t act like a victim. “There’s not a way in this world that somebody who was incapacitated by her own hand, by her own drinking, by her own ingestion of pills, then after that talks to the guy, goes out to dinner with him, asks for tickets.”
McMonagle was right about one thing: Judge McHugh isn’t supposed to leave her common sense outside. And, based on her ruling that Cosby’s guilt or innocence should be decided at trial, she didn’t.
Follow @VictorFiorillo on Twitter.
Source URL: https://www.phillymag.com/news/2016/05/25/bill-cosby-rape-culture/
Copyright ©2019 Philadelphia Magazine unless otherwise noted.