PHILADELPHIA — Bill Cosby’s new attorney has beaten Cosby’s new prosecutor before.
The trial in which Cosby will face accusations of sexual assault by Andrea Constand is a rematch between defense attorney Brian McMonagle and Kevin Steele, the new district attorney of Montgomery County, Pennsylvania. Two years ago, the two attorneys battled in court over another powerful man accused of drugging and sexually assaulting a woman under his influence.
For the past 25 years, McMonagle has defended high-profile clients like killer cops, alleged mobsters, and accused rapists—and he has won a large majority of cases thanks in part to his experience on the other side of the courtroom as a prosecutor. From 1984 to 1991, McMonagle worked in the homicide unit of the Philly DA’s office, earning admiration of colleagues and defendants alike. The public servant said he entered private practice to earn more money for his growing family, but that didn’t dull his edge.
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“I like battle, and I like competition,” he said in a TV ad for his law firm. “When you hire us, you’ve hired someone who may not guarantee you a win but will guarantee you a war.”
Arguing the government’s case against Cosby is Steele, a 20-year veteran of the DA’s office. Steele was elected to be top prosecutor in November after beating the former DA, Bruce Castor, who left but wanted his old job back. Steele used Castor’s decision in 2005 not to prosecute Cosby in order to paint Castor as soft on predators.
Now it seems the ghost of Castor’s clemency will haunt Steele as well. McMonagle has filed a motion to dismiss the charges, partly based upon a 2005 non-prosecution agreement between Cosby and Castor about which they say his successor was informed in an email.
McMonagle and Steele declined to speak to The Daily Beast for this story.
Steele is possessed by a similar drive as McMonagle, evidenced by the wristband he is said to wear every day that reads, “David Grove 11-11-2010.”
Grove was a wildlife conservation officer who was murdered and Steele was called in by another county’s DA to assist in getting a conviction thanks to his experience in trying and winning capital cases. Steele did just that, helping send send Christopher Johnson to death row in 2012.
A year later, another high-profile case landed on Steele’s desk.
Robert Kerns was the chairman of the Montgomery County Republican Party and a partner at the Kerns, Pearlstine, Onorato & Hladik law firm. In November 2013, a grand jury charged Kerns (PDF) with aggravated indecent assault (the same charge as Cosby) for allegedly drugging and raping a woman who worked for him.
With Steele standing beside her, District Attorney Rose Vetri Ferman announced Kerns’s arrest and detailed the state’s case against him in a press conference.
On Oct. 25, 2013, a 51-year-old paralegal at Kerns’s firm went to a company party at a restaurant. The woman said she had a few drinks and was concerned about driving herself to a nearby mall to go shopping with a friend. Kerns said he had to go there anyway and offered to give her a lift, saying he would also take her back to the restaurant later to retrieve her car.
Instead, according to prosecutors, Kerns gave the woman wine laced with drugs, then assaulted her in the parking lot and again in her own home. An affidavit in the criminal complaint said the woman sustained injuries that were visible six days later and internal bleeding that lasted 13 days.
The woman said she awoke the next morning alone in her own bed, nude from the waist down, covered in dried vomit; her shoulder blades and vagina were sore; scratches and bruises were present on her thighs, which she photographed with her cell phone. The woman said she found her missing pants and underwear on the kitchen counter, along with a wine glass that held a $100 bill. The woman went to the hospital, where medical staff performed a sexual-assault examination that noted the presence of a man’s DNA and genital lacerations.
The woman told detectives she had few clear memories of the night before but remembers getting into Kerns’s car and he telling her to pour two glasses of wine from an open bottle. She said she drank some but did not see Kerns do so. Kerns had laced the wine with the sleeping drug Ambien, grand jury found.
Investigators obtained a search warrant and found vomit inside his Mercedes and found in the trunk pink duct tape, an open bottle of vodka, and lubricating jelly.
Kerns told detectives the alleged victim had started vomiting in the car, and that he stayed in the mall’s parking garage while tending to her before taking her home.
Detectives also taped phone conversations between Kerns and a friend at his firm who agreed to be recorded. He denied assaulting the woman when asked directly, but when the friend told him that the woman had injuries consistent with rape and that the evidence against Kerns seemed strong, “If it is, it is,” Kerns said. “You know, that’s why I got McMonagle.”
At a preliminary hearing, the first and only time the accuser appeared in court, she testified she had only “obscure, dream-like memories of my head up against the window of the car and pushing [Kerns] away.” Once at home, she said she “knew it was happening but it was like I had no wherewithal to do anything about it.”
McMonagle pressed her to provide details of events that she had already testified occurred while she was either unconscious or incapacitated—like what time she had removed her pants and underwear. Hospital records did “depict some bruising,” McMonagle admitted, but there was no evidence indicating “that there had been intercourse of any kind in this case,” he told the judge before asking him to dismiss the charges of rape and aggravated indecent assault.
Prosecutor Samantha Cauffman, who argued the case at Kerns’s preliminary hearing, told the judge that the woman “has penetration injuries, she has tears and rips. [Violent intercourse] is the only thing that could have caused damage to her inside.” The judge ordered the case go to trial.
But then McMonagle hired two experts to analyze the toxicology report that found Ambien in the wine and they found an error in how the report had been interpreted to the grand jury. That meant the grand jury had indicted Kerns based in part on misleading testimony.
On March 17, 2014, Steele told a judge that his office was dropping the charges because of the technical error. McMonagle gave prosecutors a nod for their swift action to remedy their mistake.
“I’m confident that this was an honest mistake made by the district attorney’s office and upon learning of it they did the right thing and put an end to this horrible nightmare,” he said.
In October 2014, citing missteps in the Kerns case, DA Ferman and Steele announced they had commissioned a third party to review the prosecution and were creating two new positions to oversee trials and professional standards.
The Pennsylvania attorney general took up the case and Kerns later pleaded no contest to two misdemeanors. He was sentenced to two years probation, made to register as a sex offender, pay a fine of $500, and pay his victim $153.39 in restitution.
Steele will have a much harder time proving Cosby sexually assaulted and drugged Constand if for no other reason that there is no physical evidence this time. Instead, Steele is going to try to use Cosby’s own words against him from a 2005 deposition in Constand’s civil case. In that deposition, Cosby admitted to giving women drugs before he had sex with them (though he says it was consensual).
But there’s a catch.
McMonagle’s filing last week to dismiss the charges contained a claim that Steele’s “new” evidence from Constand’s civil suit is off limits to the prosecution, because ex-DA Castor promised that his office would never bring criminal charges against the comedian for the alleged assault in return for Cosby’s deposition.
Castor emailed Steele’s predecessor as DA a few months ago, telling her he “agreed more than a decade ago” not to use Cosby’s civil depositions in a criminal case against him, CNN reports.
“I can see no possibility that Cosby’s deposition could be used in a state criminal case, because I would have to testify as to what happened, and the deposition would be subject to suppression.”
Steele says the email doesn’t stymie his case, because Castor’s verbal promise is not legally binding for Steele’s office.
“There is a specific legal method to grant immunity. That was not done in 2005,” he told CNN.
Indeed, McMonagle’s motion does not cite any explicit agreement not to prosecute.
McMonagle’s motion also references Steele’s political campaign built around Cosby.
The motion cites Steele’s own description of TV commercials, public statements, and flyers critical of Castor’s decision to not prosecute Cosby “a crucial new phase of his campaign.” McMonagle says this should rule Steele out as an impartial broker, so the judge should disqualify him from the trying the case.
“My office does not try any case in the court of public opinion,” Steele said in a statement last week, “we try them in a court of law. We will be filing a response to their motion, and we will let our legal response to their motion speak for itself.”
Steele does not have any known physical evidence against Cosby like he did against Kerns. Instead he will try to strengthen his case against Cosby by bringing forward as many as 50 women to testify that Cosby did the same thing to them as to Constand. Pennsylvania law allows “other crimes, wrongs or acts” to be offered as “habit evidence” against defendants. Prosecutors will try to establish Cosby’s alleged pattern of seducing, drugging, and assaulting women. McMonagle, of course, will argue they shouldn’t testify.
If they do, McMonagle will not go easy on them.
For example, in 1999 McMonagle defended Philadelphia police officer Fred Gaethers, who was charged with raping a woman he had offered to pay for sex. The woman was as a health-care professional, but McMonagle forced her to admit she had once been a prostitute. When Gaethers was found not guilty, he grinned and thanked the jury. Meanwhile, his alleged victim reportedly “buried her face in her hands and began sobbing in the back row of the courtroom.”
Still, McMonagle will have his work cut out for him, says Michael Pileggi, a federal civil rights and criminal defense attorney whose clients were recently cross-examined by McMonagle.
“You have all of these women coming forward, so it’s not just the credibility of one witness,” Pileggi said. “He’s got some mountain to climb, I’ll say that. He’s going to have to attack each and every witness.”
That includes Constand.
“From a lawyer’s perspective I think you always have to tread lightly with these types of cases,” Pileggi said. “It does come into the credibility issue, it’s always a factor. But you know, with these sexual cases, you have to strike a balance, because oftentimes it can look like you’re trying to intimidate the witness and that turns juries off. On the other hand, that’s the one area of attack that he has, the credibility of the witness.”
McMonagle will have to wait for his first shot at Constand. On Feb. 2, both sides will argue over his motion to dismiss the charges. If the magistrate denies it, then Steele must still meet McMonagle again at a preliminary hearing to convince to her honor there’s enough evidence to take the case to trial.
Then the rematch will really begin.
