Refusal by Witness Hinders Cosby Case

The 5th Amendment, which says people cannot be forced to provide information that will get them in trouble with the law, has taken its toll on the prosecution’s case against Mikail Markhasev, the man accused of killing Bill Cosby’s son last year.

Deputy Dist. Atty. Anne Ingalls revealed in court Monday that Eli Zakaria, who was with Markhasev when 27-year-old Ennis Cosby was killed, was going to refuse to testify for fear he might incriminate himself.

The defense has said it will argue that Zakaria, not Markhasev, killed Cosby.

Ingalls shocked the defense Friday when she abruptly rested her case without calling Zakaria or his girlfriend, Sara Ann Peters, both of whom were with Markhasev on the night of the killing.

The prosecutor did not explain Friday why she did not call Zakaria and Peters to testify, but there was widespread speculation that she feared their past criminal records and pending criminal charges in an unrelated case made them too vulnerable to cross-examination by Markhasev’s lawyers.

In a hearing before Judge David D. Perez on Monday, Ingalls said Zakaria’s attorney had advised her that Zakaria would refuse to testify on 5th Amendment grounds. It was not clear why Ingalls offered that information or why she did not mention Peters. As has often been the case during the trial, most of her statements in court were inaudible.

But she apparently wanted Perez to bar the defense from mentioning Zakaria’s criminal record. Markhasev’s lawyer, Deputy Alternate Public Defender Henry J. Hall, said he would not mention it.

Zakaria is the second key prosecution witness who has refused to answer questions in court.

Last week, Michael Chang, who was expected to say that he heard Markhasev admit killing Cosby, at first tried to invoke the 5th Amendment. Even when Ingalls agreed not to prosecute him for anything Chang might say in court, he still refused to testify. Chang, who is in Orange County Jail awaiting trial on unrelated charges, implied that he was afraid someone in jail might hurt him if he testified against Markhasev. He was held in contempt of court.

Zakaria, 24, of Huntington Beach, was especially important to the prosecution’s case because his testimony could have put Markhasev at the scene of the crime.

Ingalls has said in court that Markhasev, Zakaria and Peters were using a phone at a park-and-ride lot about 450 feet away from where Cosby was changing a flat tire when Markhasev decided to rob Cosby. He ended up killing him instead, Ingalls alleges. The prosecutor has said the three then drove away and disposed of the gun in a wooded area several miles away.

Without Zakaria and Peters, the prosecution doesn’t have anyone who can say he saw Markhasev at the murder scene. Even Stephanie Crane, Cosby’s companion when he was shot, has been unable to identify Markhasev as the man she saw that night.

Nevertheless, the prosecution has presented other evidence that links him to the crime, such as testimony by Christopher So. So has said he drove Markhasev and Chang to a wooded area in an unsuccessful search for a gun a few days after the killing. Ingalls says police found the murder weapon in the same area about two months later.

So, who stands to earn a $100,000 reward from a tabloid if Markhasev is convicted, has said he heard him say: “I shot a n-----. It’s big. It’s all over the news.” So also said Markhasev vowed to return to the wooded area and search for the gun some more.

But he never did, Markhasev told Chang in a phone conversation that was secretly recorded by police with Chang’s cooperation.

On Monday, Hall, Markhasev’s lawyer, indicated that he may try to show that Markhasev was talking about another gun. He also pointed out that, in that same conversation, Markhasev said he didn’t know anything about Cosby’s killing.