Trial by Jury

IN THE COURT OF COMMON PLEAS IN AND FOR THE COUNTY OF MONTGOMERY, PENNSYLVANIA CRIMINAL DIVISION COMMONWEALTH OF PENNSYLVANIA: vs. NO. 3932-16 WILLIAM H. COSBY, JR. TRIAL BY JURY Courtroom A Monday, April 9, 2018 Commencing at 9:09 a.m. Virginia M. Womelsdorf, RPR Official Court Reporter Montgomery County Courthouse Norristown, Pennsylvania - - - BEFORE: THE HONORABLE STEVEN T. O'NEILL, JUDGE AND A JURY COUNSEL APPEARED AS FOLLOWS: KEVIN R. STEELE, ESQUIRE District Attorney M. STEWART RYAN, ESQUIRE KRISTEN GIBBONS-FEDEN, ESQUIRE Assistant District Attorneys for the Commonwealth LANE L. VINES, ESQUIRE THOMAS A. MESEREAU, JR., ESQUIRE KATHLEEN BLISS, ESQUIRE JASON HICKS, ESQUIRE BECKY S. JAMES, ESQUIRE RACHAEL ROBINSON, ESQUIRE JAYA GUPTA, ESQUIRE for the Defendant ALSO PRESENT: JONATHAN PERRONE, Computer Operations Supervisor Montgomery County District Attorney's Office 3 INDEX Page Opening Statement By Mr. Steele 219 - - - 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 4 2 (The following proceedings were 410 3 commenced in chambers with the Court, 4 Mr. Steele, Mr. Ryan, Ms. Gibbons-Feden, 5 Mr. Vines, Mr. Mesereau, Ms. Bliss, Ms. James, and the defendant being present:) 7 8 THE COURT: So with everything that 9 occurred over the weekend, hopefully at least we've 10 discerned the process I'd like to follow. 11 Now, I think we can literally start 12 that, you know, if you have these essentially 13 preliminary witnesses. They're witnesses -- I mean, if 14 we know that Potential Juror Number 9 is here, then -- 15 does the Commonwealth have any contest after everything 16 that they've put in in their supplement and 17 Mr. Mesereau's letter that at least, you know, the call 18 coming in, whatever the photographs, that at least -- 19 we don't need to start with that to have a condition 20 precedent to put 9 on. 21 If Potential Juror Number 9 is here and 22 is prepared to testify to what they've put in their 23 declaration, then we can get to that in the in -camera 24 hearing. And that's how I would have probably 25 preferred to do it in the first place, say Hey, we 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 5 2 think we have a problem with Number 9, get Number 9 in 3 here and let's just focus on 9. But if you're saying that, you know, 5 that there's something that you need to hear from these 6 other witnesses, I appreciate you flew them in, but 7 it's like anything else. We don't know how it would 8 turn out. We don't know what would happen. 9 My concerns on Friday were like, Eek, 10 it's a motion. You got to prove things. You got to 11 have full testimony. But in the end we're simply 12 looking to see did 11 say to 9 what you said she said 13 to your people which is just hearsay. She said. 14 So how's the Commonwealth feel about 15 this without going into too much detail? 16 MR. STEELE: And I won't. Your Honor, 17 we didn't respond to the motion. This is their motion 18 and, as you indicated, they have a burden of at least 19 going forward on something based upon how this was 20 done. I sent a case -- 21 THE COURT: I see it. 22 MR. STEELE: -- last night which, you 23 know, I'm trying to keep this in the vein that it is. 24 You know, whether -- and it may be getting to the end 25 on this. Whether he said it or not may not be of issue 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 6 2 because, number one, they took somebody who said they 3 had an opinion. If he hasn't -- if he doesn't have a 4 fixed opinion, well, then this is over and we move 5 through. And so -- 6 THE COURT: I'm just asking -- you're 7 making your argument. 8 MR. STEELE: Well, I don't need to. 9 THE COURT: I'm asking about -- the 10 point of it is I am going to inquire of Potential Juror 11 Number 9. Then if she says what's in her declaration 12 under oath, then I would inquire of Juror Number 11 and 13 get his under oath testimony. 410 14 Then depending on where we are at that 15 stage, I either need to use 9, 10 and 12 as 16 did -they -hear -it witnesses before I get to them as if 17 you heard it, did it affect your ability to be. 18 So I still need to get to the process. 19 I mean, there's no reason to say that she didn't say it 20 if she's willing to be here, put a declaration out and 21 put it. Then we'll get to the argument. 22 MR. STEELE: Okay. Well, no, I think 23 that presents a different issue. 24 THE COURT: What? 0 25 MR. STEELE: If you're going to bring 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 7 2 her in and she's going to say these things, well, then 3 I get to cross-examine her. 4 THE COURT: Well, I'd prefer you just 5 tell me what you need to ask her. I mean, again, I 6 guess it's in a motion form and she is not a seated 7 juror. I mean, that was what I wanted to avoid was 8 you, you know, the defense having to stand for the 9 juror. 10 MR. STEELE: The defense has already 11 stood for them. They've met with her. They've 12 indicated all these things. 13 THE COURT: Mr. Steele, this has all 411 14 been said while we all should have been preparing for a 15 case over the weekend. I've expressed how I feel. 16 Okay? I'm just saying I don't know if that's -- I'm 17 still trying to avoid and keep it to the way the Court 18 would have done it, which is simply bring her back in 19 an in -camera hearing, let me ask her the questions. 20 You know, cross-examination -- you know, 21 I don't know if it needs to get all the way over to 22 like did you make this phone call, what time did you 23 make this phone call? You know, again, we cannot - 24 you don't have any cases to say the way in which they 411 25 did it was against a rule. It was just, you know, how 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 8 2 I would have liked to have kept it a little closer. 3 Why do you have to cross-examine? 4 MR. STEELE: Because they're presenting 5 a witness that they have a burden on and, you know, and 6 I get to question that witness in regard to, you know, 7 how this happened and whether -- 8 THE COURT: Whether 11 said it. 9 MR. STEELE: And whether. 10 THE COURT: Whether 11 said it. That's 11 all we're doing here. 12 MR. STEELE: No, but that's a 13 credibility determination. 14 MR. MESEREAU: Your Honor, if he's going 15 to cross-examine her, it should be in open court. 16 THE COURT: I hear you. Do you want to 17 do that, everybody? 18 MR. MESEREAU: I think he should 19 cross-examine her in open court. If he wants to 20 cross-examine her like that, she's here. She's here 21 with counsel. Let him do it in open court. 22 THE COURT: I just really -- I mean, 23 getting to the fact that she would say this is what -- 24 you know, because I was the only one that at least had 25 a view of how they were in that room. I mean, I would 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR. 9 2 come in occasionally -- 3 MR. STEELE: I don't know those 4 circumstances. 5 THE COURT: I hear you. But the two 6 times I came in, you know, they were to say Hang in with us. We're getting there. And I remember where 8 she was sitting. I had no recollection of where 11 was 9 sitting. 10 But I at least -- in talking to her, 11 I'll say Hi, remember me, I came in a couple times, 12 just like I'd ask her when was it said and, you know, 13 who do you remember being in there. 411 14 But, I mean, I guess at this stage both 15 parties want to question it. If you want to go ahead 16 and just take over, I was hoping we didn't have to do 17 this. But if you're insisting on your right to 18 cross-examine somebody that at least you brought to the 19 attention, then we can do it in open court. 20 MR. STEELE: Look, this is the way I 21 started out. And I'm not making argument on this at 22 this point. But, you know, to me, the analysis is much 23 simpler, you know. Can this juror be fair and 24 impartial no matter what was said in whatever 25 circumstances. And I think that case shows that -- 1 COMMONWEALTH vs. WILLIAM H. COSBY, JR.

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