NORRISTOWN, Pennsylvania—Five women who say Bill Cosby drugged and sexually assaulted them may testify at his upcoming Pennsylvania trial, Montgomery County Judge Steven O’Neill ruled Thursday.
The ruling may determine the result of the retrial after a jury deadlocked in the initial Cosby trial where only one woman testified in addition to accuser Andrea Constand.
Cosby’s defense attorneys and the Montgomery County District Attorney's Office had no immediate comment. Cosby has previously denied all claims of sexual misconduct.
Cosby, 80, is charged with three counts of aggravated indecent assault for allegedly drugging and sexually assaulting Constand, a former Temple University employee, at his Elkins Park, Pennsylvania mansion in January 2004. Last June, O’Neill declared a mistrial after jurors deliberated for 52 hours without being able to reach a verdict. His new trial is scheduled to begin Monday, April 2, with jury selection starting on March 29.
The two sides met in court on March 5 and 6 to argue several pre-trial motions. The most heated exchanges were over Montgomery County District Attorney Kevin Steele’s request to have 19 accusers to testify as “prior bad act” witnesses to show a “common plan, scheme or design.”
Cosby’s teams had argued allowing any of them to testify — let alone all of them — would unfairly bias the jury, especially in light of the recent #metoo movement, which has already toppled more than 100 men.
“The purpose would just be to enrage the jury this time fueled by even more prejudicial…#metoo accusations that have nothing to do with Mr. Cosby at all,” Los Angeles attorney Becky James told the court. “With that atmosphere it’s going to be hard enough to get the jury to focus on the case itself, but to bring in 19 witnesses in that environment would be extremely prejudicial.”
Montgomery County Assistant District Adrienne Jappe, however, argued that Cosby’s drugging and sexual assault of Constand was part of a “sadistic sexual script” he’d perfected over the course of four decades.
“He did the same thing to 19 other women in a strikingly similar fashion,” she said. “In other words, the defendant systemically engaged in a signature pattern of providing an intoxicant to his young female victim then sexually assaulting her once she became incapacitated. Each of these victims have come forward with harrowing accounts of drug-facilitated sexual assaults with the defendant.
“All of these instances shared…a signature for purposes of a common plan or scheme,” she said.
After the hearing, O’Neill issued an order telling both sides to file post-hearing memorandums of law by March 12.
“The Commonwealth’s argument …necessarily rests on the question of ‘what are the chances’ that so many accusers are fabricating their reports of sexual assault, “ Cosby’s defense attorneys wrote in their filing. “In this case the chances are quite high because …the accusers’ stories have all been influenced by one another and all of the accusers have motives to fabricate.”
They also continued to object to the advocacy group RAINN (Rape, Abuse & Incest National Network) trying to intervene in the case by filing an amicus brief in the case, something the prosecution mentioned repeatedly at the March 6 hearing and which the judge opposed as well.
Apparently, Steele tried to just then include their brief in his post-hearing memo filed March 12 but the judge issued an order striking it from the record and gave him an additional 24 hours to file a new one.
In the post-hearing brief, Steele proceeded to cite a multitude of rape statistics, saying allowing the women to testify “could help to mitigate the prejudice among jurors to rape victims,” especially ones that delay reporting the crime to law enforcement, as Constand did for nearly a year.
“Out of every 1,000 rapes, only 310 will be reported to law enforcement,” Steele wrote, citing statistics from RAINN. “Only a fraction of those reported will lead to a conviction. This is especially concerning given that in the United States, another individual experiences sexual assault every 98 seconds. Among the chief reasons victims cite when explaining a decision to avoid altogether or delay a report to officials: fear of being disbelieved.”
Some legal experts feel getting a conviction is an uphill battle, regardless of how many accusers testify.
“Jurors in sexual assault cases want a lot of evidence,” Rich DeSipio, a former sex crimes prosecutor in Montgomery County and Philadelphia, told The Daily Beast. “The year delay in reporting — many get it. Many do not. The legal definitions of the crimes are too vague and complex. Unconscious, reckless, unreasonable and severely impaired have different meanings to different people. The case being closed then reopened some jurors will not like. They google even though told not to.
“This case was part of an election, no matter how meritorious or not it was to reopen the case,” said DeSipio, who is now a criminal defense attorney in Philadelphia. “Mostly there will be some jurors who want to thank Bill Cosby for being part of their growing up. Even if they think he did this they will not want to hurt him at his age.”