Could Cosby case be dismissed?

Story highlights

  • Danny Cevallos: Court in Cosby case is at least listening to the defendant's pretrial motions
  • If it is willing to consider the defense's argument, then it may be willing to dismiss, he says

Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

(CNN)Might Bill Cosby's criminal case be dismissed before it even begins?

Here's what we know so far: The February 2 court date will not be a preliminary hearing in his criminal case. Instead, the court is first going to hear arguments on the defendant's habeas petition to dismiss the case, and the motion to disqualify the prosecution. That means the court is at least listening to the defendant's pretrial motions. And if the court is willing to consider the defense's argument, then it may be willing to dismiss.
Danny Cevallos
But even without the preliminary hearing on Tuesday, the court will have plenty to hear. The defense has moved to disqualify the district attorney's office, and it also claims that this prosecution is in violation of a valid nonprosecution agreement from years ago. The court will also consider a lesser-known, rarer basis for dismissal: pre-accusation delay.
    Just because it's less common doesn't mean it's not important. In fact, it may be the most important reason to dismiss the case against Cosby. After all, the alleged nonprosecution agreement is based on contract law principles. Pre-indictment delay, on the other hand, violates the constitutional rights of a defendant.
    In most cases, as long as a defendant is charged within the statute of limitations, pre-indictment delay isn't an issue. But sometimes, this delay deprives a defendant of "life, liberty, or property, without due process of law," and violates the Fifth Amendment.
    Here's how it works:
    A defendant does have a Sixth Amendment right to a speedy trial, but that right only requires that a defendant be tried within a certain time after he is charged, not before. That last part is key. The Sixth Amendment does not apply to any delay before that defendant is charged. For that period, statutes of limitations are the primary protection against stale criminal charges.
    These limitations laws "limit" prosecutions to a prescribed, arbitrary window of time after the alleged crime. But sometimes, statutes of limitation are not enough; in rare situations, a "legal" delay may be an unconstitutional delay. Sometimes, waiting until the last minute is just fundamentally unfair.
    Take the example of murder, which has no statute of limitations. Theoretically, a prosecutor could sit for decades on a weak case against a suspect, then, when that suspect's main alibi witness dies, the prosecution could strategically indict the defendant after he's lost most of his evidence. It is especially difficult where a suspect had no idea he was a suspect for many years, then suddenly, he's charged and left investigating what the heck he did in mid-February 2004. I mean, do any of us know where we were and what we did in mid-February 2004? Do your text messages go that far back on your iPhone? (If any contrarians out there said yes, that would be some feat, considering the iPhone didn't come out until 2007).
    It was not until 1971 that the U.S. Supreme Court first observed that a delay in charging a defendant -- even if charges are brought within the statute of limitations -- may result in a violation of due process and the Fifth Amendment.
    But to all the criminal defendants out there: Don't get too excited. While it's hard to summarize four decades worth of varying federal and state cases on this topic, for the most part, getting a case dismissed for pre-indictment delay is like winning the lottery: The test applied by the courts is just that stringent. That being said: When it comes to this particular defendant, he may have the winning ticket. This may be one of those cases that satisfies the test.
    According to the Pennsylvania Supreme Court, to show an unconstitutional pre-accusation delay, the defendant must first show "actual prejudice." That means the delay substantially impaired his ability to defend against the charges. Then, if this threshold issue is met, the prosecution has to offer justifications for the delay. If there is no proper reason for the delay, then there may be a constitutional violation. Courts have also suggested that intentional, bad faith, or reckless delay may be enough. However, courts have also suggested that if the delay was just the product of a run-of-the-mill negligent investigation, then that will not rise to the level of a due process violation.
    In the Cosby case, the defendant articulates prejudice. His prior attorney is now deceased. As with all delay cases, memories have faded, witnesses and documents have disappeared. Even his health has diminished. Expect the defense to articulate more specific prejudice at the hearing because courts generally require it. Assuming the court recognizes this prejudice, it should then ask the same question we've all been asking: why did the prosecution really wait so long? If this was a case where new evidence popped up from nowhere, then it's hard to say the delay was strategic and intentional. But did this new evidence simply pop up?
    The "new evidence" appears to be a few selected lines from a deposition. But the prosecution apparently knew about that deposition way back in 2005. Indeed, the prosecution may have entered into a deal to not prosecute Cosby specifically so Cosby would give that specific deposition testimony years ago. If the universe of facts known to the prosecutor today is exactly the same as it was years ago, then the court may demand that the district attorney's office explain exactly why it delayed in bringing charges. If the court doesn't like the answer, then the court may dismiss the case.
    Ultimately, however, just because a court should dismiss a case doesn't mean it will. Most judges are understandably reluctant to dismiss any cases, let alone high-profile ones. The prudent course of action in close-call situations is usually to let a case go to trial. Particularly in cases of pre-accusation delay, the Pennsylvania high court has assured lower courts that dismissal is an extreme sanction, which should be granted only when no valid reasons justify the delay.
    Can the prosecution come up with any valid reasons? Was the delay unintentional? If not, the judge may have to read out the defendant's winning lottery number -- and dismiss this case.