DECISION PENDING
Judge weighing if 19 other Bill Cosby accusers can testify at retrial
A judge has taken under advisement a prosecutor’s request to call 19 additional women, who accuse Bill Cosby of sexual misconduct, to testify at the actor’s upcoming retrial on charges he sexually assaulted one woman at his Cheltenham mansion in 2004.
“I really don’t know what my ruling is,” Montgomery County Judge Steven T. O’Neill said on Tuesday, advising prosecutors and defense lawyers his ruling will come after he carefully weighs the issue but before jury selection begins March 29 for Cosby’s retrial. Cosby faces charges he had inappropriate sexual contact with Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home after ply-
“Let’s be clear, I didn’t pick the 19. The defendant picked the 19.” — Montgomery County Assistant District Attorney Adrienne Jappe “These are just ancient accusations which make them far less relevant. The prejudice that would come from allowing any of these 19 to come in would be extremely unfair.” — Becky James, defense lawyer for Bill Cosby
ing her with blue pills and wine sometime between mid-January and mid-February 2004.
A second day of pretrial hearings concluded with defense lawyers presenting arguments against allowing the 19 women to testify about alleged incidents that occurred between 1965 and 1996.
“These are just ancient accusations which make them far less relevant. The prejudice that would come from allowing any of these 19 to come in would be extremely unfair,” defense lawyer Becky James argued to the judge. “Even one would be prejudicial. The fact they want to put in 19, that is clearly too many. Letting in multiple minitrials, which is what this would be, would just dominate the trial.”
James also suggested allowing 19 other alleged accusers to testify at a time when the current #MeToo movement against sexual harassment is sweeping the social climate would be unfair to Cosby.
“If anything, they are more prejudicial because of the environment today,” James argued.
James suggested the prosecution’s case “is so weak” that prosecutors are desperate to salvage it with the testimony of 19 other alleged accusers. The other accusations are not corroborated, James argued, claiming the women also have shared their stories with one another to the point their recollections are tainted or manipulated and are not reliable.
Many of the women, according to defense lawyers, did not come forward until more than a decade after the prosecution’s highly publicized 2005 investigation of Constand’s allegations.
“All we have here are accusations that have been influenced. These stories have been influenced by one another,” argued James, part of Cosby’s legal team that also includes Thomas Mesereau Jr., Kathleen Bliss, and Lane L. Vines.
On Monday, Assistant District Attorney Adrienne Jappe argued the testimony of the 19 women is “strikingly similar” to Constand’s claims and should be admissible as evidence against Cosby.
Jappe argued the testimony of the other accusers is relevant “to establish a common plan, scheme or design” for the jury and “to establish that an individual, who over the course of decades intentionally intoxicated women in a signature fashion and then sexually assaulted them while they were incapacitated, could not have been mistaken about whether or not Ms. Constand was conscious enough to consent to the sexual abuse.”
When defense lawyers continued to deride prosecutors for choosing 19 other women to testify against Cosby, Jappe shot back, “Let’s be clear, I didn’t pick the 19. The defendant picked the 19.”
O’Neill’s ruling is considered one of the major pretrial legal decisions in the Cosby case. Legal insiders believe the key to the prosecution’s case against Cosby is the admissibility of evidence involving alleged accusers who came forward after Constand’s allegations came to light.
During Cosby’s first trial last June on charges he sexually assaulted Constand, O’Neill allowed prosecutors to present the testimony of only one other accuser, or “prior alleged victim,” Kelley Johnson.
Johnson, 55, accused Cosby of engaging in sexual misconduct with her in 1996. Johnson testified she met Cosby around 1990 through her employment working as an assistant to Cosby’s personal appearance agent at the William Morris Agency.
At that time, District Attorney Kevin R. Steele had asked the judge to allow a total of 13 other alleged Cosby accusers to testify at the first trial, but the judge ruled in February 2017 that 12 of the women could not testify.
After Cosby’s first trial ended in a mistrial last June, Steele sought a retrial and now is asking O’Neill to reconsider his earlier ruling and allow 19 other accusers to testify. Steele and Jappe argued a decision by a state court in a homicide case, “that was decided after” O’Neill’s February 2017 ruling, determined that certain “prior bad acts evidence” is admissible at a trial.
But the new defense team led by Mesereau has argued O’Neill “recognized the impropriety” of such testimony when he excluded 12 other alleged accusers from the first trial. The defense lawyers argued that since then nothing has changed to make their testimony any more relevant or any less prejudicial.
William Henry Cosby Jr., as his name appears on charging documents, faces three counts of aggravated indecent assault in connection with allegations he had inappropriate sexual contact with Constand. Cosby has maintained his contact with Constand was consensual.
Cosby, 80, remains free on 10 percent of $1 million bail, pending the retrial.
Cosby faces a possible maximum sentence of 15 to 30 years in prison if convicted of the charges.
Cosby’s first trial ended in a mistrial last June 17 after a jury of seven men and five women selected from Allegheny County individually told the judge they were hopelessly deadlocked “on all counts” after deliberating more than 52 hours over six days.
Steele immediately vowed to seek a retrial.
The case represents the first time Cosby, who played Dr. Cliff Huxtable on “The Cosby Show” from 1984 to 1992, has been charged with a crime despite allegations from dozens of women, some of whom have filed civil suits, who claimed they were assaulted by the entertainer.
The newspaper does not normally identify victims of sex crimes without their consent but is using Constand’s name because she has publicly identified herself.