Cosby’s defense fights using testimony from 19 accusers

The defense said Cosby cannot get a fair trial if the 19 accusers take the witness stand.

Jury selection for Bill Cosby's sexual assault retrial is delayed to April 2, a Montgomery County Judge ruled on March 6. | KELLY BRENNAN / FILE PHOTO

NORRISTOWN, Pa. — Bill Cosby appeared in a Montgomery County courthouse for a second consecutive day of pretrial hearings on Tuesday. His defense argued against allowing accusations from 19 women into evidence for Cosby’s upcoming retrial.

Cosby’s defense attorney Becky James argued that because of the Me Too movement and a shift in the national dialogue about sexual assault, jurors will inevitably be biased and Cosby will not get a fair trial.

“This time with more prejudice from what goes on outside the courtroom with Me Too and the media barrage…that has nothing to with Mr. Cosby at all,” James told the court.

Montgomery County Court of Common Pleas Judge Steven T. O’Neill quickly shot down the defense’s argument, stating jurors are chosen for their impartiality.

“The climate you’re about to talk about is behind you,” O’Neill told James. “You can’t speak to the climate of the 12 [jurors] who will have to decide this case.”

The defense presented its argument for nearly an hour and a half, refuting the prosecution’s reasons to allow the 19 accusers to testify in the upcoming trial. From the beginning of James’ argument, she questioned their credibility and emphasized that the trial is only about an incident between Cosby and Andrea Constand, a former Temple employee who alleged Cosby sexually assaulted her in his Montgomery County home in 2004.

On Monday, the prosecution alleged Cosby has a distinct, uninterrupted pattern of drugging and assaulting young women.

But James refuted that claim, insisting the use of drugs and alcohol is too generic to be a pattern.  

“It’s not a crime for there to be intoxicants involved,” she said. “Intoxicants are involved…in most romantic encounters.”

James advocated for a pretrial hearing where O’Neill would act as a “gatekeeper” and determine if each of the 19 accusations are substantiated. She warned O’Neill that the defense may need more time to prepare its arguments if all 19 accusers are “tossed up on the witness stand.”

“I’m telling you: Prepare as if there are 19 women,” O’Neill responded.

O’Neill will not decide whether he will allow the interviews and one deposition from the women until it’s closer to the trial’s start on April 2. He seemed to agree with accepting the 19 “prior bad acts” — as  Assistant District Attorney Adrienne Jappe called them that the prosecution submitted on Monday into evidence.

The prosecution offered O’Neill to use his discretion during the trial to decide whether the testimonies have an unfair prejudicial impact.

Before Cosby’s first trial in June, the prosecution filed a motion to include 13 women who accused Cosby of similar acts. O’Neill only allowed one: Kelly Johnson, who alleged Cosby drugged and sexually assaulted her in 1996. The first trial ended in a hung jury and mistrial.

“Their case is so weak they need these 19 women to sure it up,” James said.

On Monday, O’Neill asked the prosecution to provide a Pennsylvania criminal court case that set precedent for its motion to submit all 19 accusations as prior bad acts.

“This case is unprecedented,” Jappe told the court on Tuesday. “The conduct undertaken by the defendant…is in fact unprecedented in this commonwealth. You’re not going to find a case where 19 prior bad acts were submitted.”

Montgomery County District Attorney Kevin Steele and Cosby’s defense attorney Kathleen Bliss are working to settle a plan on how they will use information from Constand and Cosby’s 2005 civil suit, in which Temple’s Board of Trustees Chairman Patrick O’Connor defended Cosby who was also a board member at the time.

Unlike Cosby’s former defense team, his new representation does not oppose the court allowing the use of the 2005 civil suit.

Los Angeles attorney Tom Mesereau told the court the defense hopes to use the money Constand received from the 2005 settlement and how much she asked for to show “just how greedy this person was.” The amount of money that Constand received and requested has not been released to the public.

Prosecutors told the court they will object the defense’s attempt to use testimony from Marguerite Jackson, a Boyer School of Music and Dance academic adviser who said Constand told her she could falsely accuse a person of sexual assault to extort money.  

All parties agreed at the end of Tuesday’s hearing that Cosby’s upcoming retrial will likely last a month. Jury selection will be held March 29 through April 5, and 3,500 jury notices were sent out in the last few days, O’Neill said.

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