Bill Cosby will return to a Norristown courtroom Monday for a pivotal hearing that will determine whether the evidence presented to jurors at his second trial on sexual assault charges will differ from that in his first.
Chief among the issues up for discussion: whether Montgomery County Judge Steven T. O’Neill will permit any more of the 80-year-old comedian’s accusers to testify than he allowed during the last proceeding, which ended in a mistrial in June.
Cosby’s new defense team also has several issues it hopes to put before the judge, including another bid to have the case thrown out before the April retrial. The lawyers – led by Michael Jackson’s former defense lawyer Tom Mesereau — argue they now have conclusive proof that the alleged assault could not have occurred within the time period alleged by the case’s central accuser, Andrea Constand.
Monday’s hearing comes only a week after the death of Cosby’s 44-year-old daughter and staunch defender, Ensa Cosby. And although he has not been seen in public since then, his lawyers have offered no suggestion to the court that he won’t show up in Norristown this week.
O’Neill has set aside two full days to hear arguments from both sides. But the biggest issue that could affect the outcome of the second trial may be one that is not on the schedule for discussion.
Since June, the cultural landscape surrounding public awareness of sexual assault by powerful men has shifted dramatically.
Powerful Hollywood icons such as Harvey Weinstein and media figures such as Matt Lauer have been brought down by accusers who say they felt empowered to come forward with their accounts of sexual assault amid a wider public reckoning with the entertainment industry’s casting-couch culture.
Lawyers in Cosby’s case have only fleetingly referenced the #MeToo movement in their court filings this year.
“The current climate in which Mr. Cosby faces this new trial is increasingly hostile, and the jury pool is likely to be infected with prejudice,” the defense team contended in court papers last month.
Montgomery County District Attorney Kevin R. Steele hit back in a filing of his own.
Cosby, he wrote, “after casting blame on everything but his own conduct and everyone but himself, now claims Harvey Weinstein is to blame for his continued prosecution.”
Still, the issues that will be debated in court this week are suffused with the same thorny questions that have complicated debate around many of the powerful men accused of sexual assault and harassment.
For instance, prosecutors maintain that it is even more important during Cosby’s second trial that they be allowed to call additional accusers to bolster Constand’s claim – so much so that they have asked O’Neill to permit testimony from 18 more women than the sole other accuser he allowed last time.
As with many of the Hollywood and media figures brought down by similar assault allegations, the sheer number of women accusing Cosby could be key to convincing jurors of Constand’s account, Steele wrote in a January filing.
“Without [this] evidence, the commonwealth would have to rely on uncorroborated testimony of the victim regarding the lack of consent,” he wrote.
Cosby’s lawyers argue — as they did in the run-up to the first trial – that the women’s allegations are too old, too vague, and too dissimilar from Constand’s story to be put before the jury hearing their client’s case.
Instead, they have focused their pretrial efforts on the only woman whose story will ultimately matter in April: Constand herself.
In a glimpse of what could be a new defense strategy they intend to deploy at trial, they have amassed a series of travel and telephone records that they say prove that Constand was mistaken about the timing of her sexual liaison with Cosby.
Although she has repeatedly maintained in police statements, depositions, and testimony over the last 13 years that Cosby drugged and assaulted her at his Cheltenham mansion during the first two weeks of January 2004, Mesereau and his team say they have proof that Cosby wasn’t even in Montgomery County at the time.
Instead, their documents show that the entertainer kept up a busy performance schedule during that period and even taped an episode of Sesame Street at studios in New York City. Constand also traveled frequently during that period in her job as an operations manager for Temple University’s women’s basketball team.
What’s more, the defense argues, Constand placed several calls to Cosby’s New York residence in that two-week window, suggesting that she knew he was staying there at the time.
Cosby, in earlier testimony, has admitted he had a sexual liaison with Constand in Cheltenham in 2004 – one that he says was consensual. But his lawyers now argue that if it occurred at a different point – and not when Constand says it did – the comedian’s purported crimes fall outside the statute of limitations.
The defense also is expected to petition O’Neill this week to reconsider his ruling on one of the most intriguing wrinkles kept from the jury’s view in the first trial: testimony from a fellow Temple employee who claims that Constand once told her that she could make up a sexual assault claim against a celebrity, file charges, and get money to go to school or open a business. Marguerite Jackson, who was working as an academic counselor for the women’s basketball team at the time, alleges that Constand made those statements while they shared a hotel room and after seeing a news report about a prominent person being accused of sexual assault.
Constand, Jackson said in an affidavit, at first said something similar had happened to her, but later changed her story to say that she was never assaulted but could make up such a story to financially benefit herself.
O’Neill barred Jackson from testifying during last year’s trial after Constand testified that she had never met Jackson.
The judge has not indicated whether he intends to rule from the bench this week on any of the new motions in the case or whether he will issue his orders at a later date.
Jury selection is scheduled to begin March 29 in Norristown.