Cosby lawyers urge judge not to allow 19 prior accusers to testify

Listen 5:15
Bill Cosby winks as he arrives for a pretrial hearing in his sexual assault case at the Montgomery County Courthouse, Tuesday, March 6, 2018, in Norristown, Pa. (Matt Slocum/AP Photo)

Bill Cosby winks as he arrives for a pretrial hearing in his sexual assault case at the Montgomery County Courthouse, Tuesday, March 6, 2018, in Norristown, Pa. (Matt Slocum/AP Photo)

Updated: 4:24 p.m.

Bill Cosby’s pre-trial hearing ended just after noon on Tuesday, leaving unanswered how many of the 19 prior accusers will take the stand in the comedian’s upcoming retrial.

But in the closing minutes of the hearing, a sharp back-and-forth between both sides revealed one significant way Cosby’s April trial will be distinguished from the last: how much money accuser Andrea Constand won in a closely-guarded 2006 civil settlement with Cosby may be on the table.

“We reserve the right to bring before the jury just how much money she really won … and just how greedy this person was,” said Cosby defense attorney Thomas Mesereau.

Last June, prosecutors and defense attorneys struck a deal that jurors in Cosby’s first criminal trial could not know many of the details from when Constand, the criminal complainant, faced off against Cosby in civil court. That trial ended in a hung jury.

Constand sued Cosby civilly in 2005, after then-Montgomery County District Attorney Bruce Castor declined to press criminal charges against the comedian. A judge unsealed a deposition Cosby gave during that civil case, containing bombshell testimony that ultimately led to the filing of criminal charges against Cosby in December 2015. In that deposition, Cosby said he had obtained Quaaludes to give women he wanted to have sex with, and described the nature of the sexual contact he had with Constand. During the first trial, jurors had been allowed to read parts of Cosby’s words, but not to know about their source.

Jury selection for the new trial begins March 29. The court has sent 3,500 notices out to potential jurors, who Mesereau asked be informed that the trial could take up to a month.

Allowing prior accusers to testify still an open question

Earlier on this second day of pre-trial hearings, Cosby’s defense attorneys shot back at Montgomery County prosecutors’ request to have 19 prior accusers take the witness stand in the 80-year-old comedian’s upcoming criminal retrial.

“This case is only about one thing, about what happened between Miss Constand and Mr. Cosby on one night,” not allegations from 50 years ago, said defense attorney Becky James Tuesday morning at the Montgomery County Courthouse in Norristown.

Cosby faces three counts of aggravated sexual assault stemming from one 2004 encounter at his Cheltenham mansion. Andrea Constand, then an employee of Temple University’s basketball program, said Cosby was acting as her mentor when he invited her to his house, drugged her, and sexually assaulted her on a couch.

In a civil deposition, Cosby admitted having sexual contact with Constand that night, but maintains it was consensual.

During the first day of pre-trial hearings Monday, Montgomery County Assistant District Attorney Adrienne Jappe argued that there are 19 women with similar allegations of being drugged and sexually assaulted by Cosby, and they should be allowed to share them during trial. Pennsylvania law of evidence allows for prior behavior to come into a new criminal trial if the value of that evidence to prove motive or intent outweighs its potential to unfairly bias a jury.

Along with Constand’s allegations, these women’s experiences are “sufficiently distinctive and so nearly identical so as to become the signature of the same person,” said Jappe.

At the time of the alleged assaults, the women, who are not identified in court documents, were all younger than Cosby, between the ages of 17 and 34. All used phrases like “floating,” “passed out,” “blacked out,” “felt like a mannequin,” and “arms and legs immobilized” to describe the effects of the intoxicants Cosby allegedly gave them. The majority of these alleged assaults also involved vaginal penetration.

Constand, who was 30 years old at the time, described feeling dizzy and nauseated, and her legs felt “like jelly” after then-66-year-old Cosby gave her wine and three blue pills on the night of the alleged assault.

James argued that media attention to Cosby’s alleged misdeeds prompted these prior accusers to come forward, so their stories cannot be seen as independent corroboration of a criminal pattern.

“Several of them said they only came to the realization that they had been sexually assaulted after the reports,” said James, arguing that their testimony could also sway members of the jury against Cosby.

“Their purpose and obvious effect would just be to enrage the jury,” said James, who cited the #MeToo movement as another factor outside the courtroom that could unfairly set a jury against her client.

“One is too many, but 19 is far, far too many,” she said.

More than 50 women have alleged Cosby sexually assaulted them, spanning from the 1960s to the 2000s.

Judge Steven O’Neill indicated that he would consider leaving the question of how many witnesses he may allow open until the trial begins, so he could make a decision in the moment as to whether their testimony is biasing.

On Monday during the first day of pre-trial hearings, O’Neill denied two motions from the defense to dismiss the case. Jury selection is slated to begin on March 29, and the trial is scheduled for April 2.

WHYY is your source for fact-based, in-depth journalism and information. As a nonprofit organization, we rely on financial support from readers like you. Please give today.

Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

Together we can reach 100% of WHYY’s fiscal year goal