Bill Cosby’s attorneys took aim Tuesday at prosecutors’ plans to call 19 additional accusers at the entertainer’s April retrial, condemning it as a bid to paper over a weak case and score a victory amid a wider cultural reckoning with Hollywood’s casting couch culture.
The women’s decades-old, unproved, and ultimately irrelevant allegations, said defense lawyer Becky S. James, would unfairly stack the deck against her client and make it impossible for him to receive a fair trial.
“With the current atmosphere, it’s going to be hard enough to get the jury to focus on the trial at hand,” James said, referencing her concerns on how the #MeToo movement might affect the outcome. “But bringing in additional accusers – especially 19 of them – in that environment would be highly prejudicial.”
Her arguments came as Cosby returned to a Norristown courtroom Tuesday for a rematch on an issue that dominated debate in the run-up to the 80-year-old entertainer’s first sexual assault trial last year and promises to again be the defining question of his second:
How many of the more than 50 women who have accused Cosby of sexual misconduct in incidents dating back decades will Montgomery County Judge Steven T. O’Neill let prosecutors put before the jury?
O’Neill did not rule Tuesday, saying that deciding the issue would require “exhaustive” research. But he added that his decision could come as early as next week.
In the last trial, which ended with a hung jury in June, the judge permitted testimony from only one additional accuser – a former talent agency assistant who claimed Cosby assaulted her in the 1990s. He did not offer an explanation at the time.
Before starting anew this week, O’Neill said he did not consider himself bound by that earlier decision.
Prosecutors say that the testimony from all 19 women is crucial to establishing that Cosby has a four-decade history of predatory behavior and that his attack on the case’s central accuser, Andrea Constand, fits a pattern.
The former Temple University women’s basketball manager has alleged that Cosby offered her three blue pills during a 2004 visit to his Cheltenham residence and assaulted her after she passed out.
That account is strikingly similar to those told by each of the women singled out by prosecutors as potential witnesses, Assistant District Attorney Adrienne D. Jappe told O’Neill on Tuesday.
The oldest allegation of the group dates back to 1965. The most recent is from the 1990s – about a decade before prosecutors say Cosby assaulted Constand.
In every case, Jappe said, Cosby approached his targets as a mentor figure, later offering them drugs and taking advantage of them when they were powerless to respond.
“The conduct undertaken by the defendant in this case of intentionally intoxicating young women and then sexually assaulting them over 40 years is unprecedented,” Jappe said.
But James insisted that the similarities in the women’s stories are exactly what should give O’Neill pause.
All but one of the 19 first came forward publicly either as part of Constand’s 2005 civil suit against Cosby or in 2014, when renewed scrutiny of the comedian’s career prompted a daily drip of new stories from women who had kept their assault allegations secret for decades.
Many of the women flagged as potential witnesses by prosecutors — a list that includes several once-aspiring actresses, a former flight attendant, and supermodel Janice Dickinson – share the same lawyer, Gloria Allred, or have admitted that their memories were shaped by the stories of others they saw on TV.
“What are the chances that 19 women get assaulted and don’t report it until they hear about it on the news?” James asked.
Montgomery County District Attorney Kevin R. Steele has said that many of the women did not come forward earlier because they did not think anyone would believe their allegations against a celebrity known as “America’s Dad” and because their memories were fuzzy because of the drugs Cosby gave them.
For his part, O’Neill appeared focused Tuesday on defining the limits of his role as a gatekeeper.
Pennsylvania law allows testimony about so-called prior bad acts if it establishes a common scheme or pattern of behavior by a defendant. But judges must weigh the value of such unproved claims against the threat of unfairly turning a jury against the accused.
A miscalculation in Cosby’s case could unravel a potential conviction on appeal, as it did in perhaps the best-known recent case in which evidence of past uncharged crimes played a central role – the child endangerment trial of the Philadelphia Archdiocese’s former secretary of clergy, Msgr. William J. Lynn.
Two state appellate courts have found that the trial judge in that case overstepped by allowing jurors to hear evidence of 21 other purported decades-old incidents of sex abuse by priests that allegedly were covered up.
O’Neill nodded to that concern Tuesday, repeatedly questioning whether 19 women were necessary.
“If I said 19 is too many,” he asked at one point, “then where do we go from there?”
But whatever O’Neill decides, the number of additional accusers testifying may not be the only significant difference between Cosby’s first trial and his second.
Defense lawyer Tom Mesereau said Tuesday that he hopes to inform jurors of the financial settlement Constand received from Cosby as a result of her 2005 lawsuit – a matter the defense agreed to stay silent on during the original proceedings in June.
The details of that payout have remained secret for 13 years as a result of a confidentiality agreement both parties signed at the time. But Mesereau said the figure would be key to showing the jury during Cosby’s next trial “just how greedy” Constand was.
Prosecutors, meanwhile, said they too were eager to put the settlement negotiations under a microscope. Cosby, they have alleged, sought to insert language in the agreement that would have barred Constand from cooperating with authorities – which they say indicates that he knew he had done something illegal.
With the potential for new witnesses and evidence, both sides said Tuesday that they expect the April trial to last as long as a month – nearly twice as long as the two-week proceeding that wrapped up in June.
But O’Neill appeared certain that at least one facet of the case would remain the same – his ability to impanel a fair jury. Before adjourning court for the day, he dismissed defense concerns about the influence the #MeToo movement could have on the outcome of the trial.
“You’re saying that the 12 people that are going to be sitting here, just by being humans in 2018 and whatever is going on culturally, are going to decide this case differently?” he scoffed. “You’re saying he can’t get a fair trial at all?”