Bill Cosby’s lawyers seek new trial
At Harrisburg hearing, limits of # MeToo- era justice tested
HARRISBURG — Bill Cosby’s lawyers urged a panel of Pennsylvania appellate court judges Monday to overturn his sexual assault conviction, setting the stage for a pivotal ruling that could shape the future of the # MeToo movement’s push to hold celebrity abusers accountable in court.
For roughly an hour, attorneys jockeyed before a panel of Superior Court judges on two key issues: whether it was fair to include testimony from five additional women who accused Cosby of assault, and whether a past prosecutor had agreed never to prosecute the comedian — or even had the authority to do so.
The judges did not issue a ruling Monday and did not set a timetable for doing so. But they aimed many of their most contentious questions at attorneys for the 82- year- old comedian.
Cosby was convicted last year solely in the 2004 assault of central accuser Andrea Constand, but the jury in his case heard testimony from five other women, a small percentage of the 19 witnesses the prosecution sought to call.
While prosecutors in the Montgomery County District Attorney’s Office argued that the additional testimony was appropriate because it served as evidence of a larger pattern, Cosby’s attorneys contended that was a stretch.
“Everything is different,” Cosby attorney Kristen L. Weisenberger said, noting that some of the cases stretched back decades, the women had professions ranging from waitress to flight attendant, and one woman said she did not recall an assault.
But President Judge Emeritus John T. Bender, only moments before, had pressed her on that very point: “The reality of it is he gives them drugs, and then has sex with them. That is the pattern, is it not?”
Pennsylvania law currently allows evidence of so- called “prior bad acts” only in limited cases that show an alleged crime was part of a larger picture, not a mistake or to rebut defense claims of consent.
Whatever the court decides, its ruling is likely to have repercussions for future cases. The questions raised by Cosby’s legal team strike at an area of law that is rapidly evolving as a parade of highprofile men have found themselves
in court facing similar assault claims.
As the likes of Hollywood producer Harvey Weinstein and singer R. Kelly have been brought down by criminal assault charges in the last two years, the question has emerged again and again of what role, if any, old allegations should play in their criminal trials if the incidents fall outside the statute of limitations.
If their questioning provides any hints, the Superior Court judges may also choose to weigh in on another issue that could have sweeping effects on how future such cases are handled.
Cosby’s attorneys claim in their appeals that the comedian secured a promise from former Montgomery County District Attorney Bruce Castor that Cosby would never be charged with assaulting Ms. Constand — a vow that the comedian says prompted him to give deposition testimony in a 2005 civil suit that was used against him at trial.
While Cosby’s attorneys claim there was an oral agreement — a notion they say is supported by a deposition — both the Montgomery County District Attorney’s Office and some of the judges questioned whether there was enough proof, noting that a formal agreement was never signed and approved by a court.
Judge Bender, the Superior Court judge, asked the DA’s office whether it was commonplace to have a court approve any prosecution agreements that are meant to apply in perpetuity, meaning future elected officials would also be bound to them. The answer was a simple “Yes.”
Cosby attorney Sarah Kelly- Kilgore urged the court to focus on the effect such an agreement — or Cosby’s belief that one existed — had on his statements in the deposition.
“We can stand here today, and I think we can all agree that we would have done things differently in the past,” Ms. Kelly- Kilgore said.
Monday’s hearing unfolded without the two central players in the case present. Neither Cosby nor Ms. Constand attended. Cosby remains jailed at a state correctional facility in Montgomery County, serving the minimum three- year prison sentence he received in September.
Ms. Constand weighed in on Twitter. “The wheels of justice,” she wrote, “are again in motion today.”