NORRISTOWN >> Entertainer Bill Cosby lost his latest bid to have sexual assault charges dismissed against him and a judge began considering whether 19 other alleged accusers can testify at the actor’s upcoming retrial.
Montgomery County Judge Steven T. O’Neill on Monday denied two requests from Cosby’s defense team for a dismissal of the charges against the actor. Defense lawyers Thomas Mesereau Jr., Kathleen Bliss, Becky S. James and Lane L. Vines argued for the dismissal on grounds of prosecutorial misconduct and argued prosecutors can’t prove the alleged sexual assault occurred within the statute of limitations for the alleged crime.
O’Neill’s ruling clears the way for Cosby’s retrial to begin with jury selection on March 29. Testimony is slated to begin April 2.
At the start of Monday’s hearing, the judge offered his condolences to Cosby, whose 44-year-old daughter, Ensa, died of renal disease late last month.
“Mr. Cosby, the court does extend its sympathies,” O’Neill said to the actor, to which Cosby responded, “Thank you.”
Meanwhile, prosecutors began their quest to call 19 additional women who accuse the actor of sexual misconduct to testify at his upcoming retrial on charges he sexually assaulted one woman, Andrea Constand, at his Cheltenham mansion in 2004.
“Over the course of decades, he did this same thing to 19 other women in strikingly similar fashion,” Assistant District Attorney Adrienne Jappe argued to the judge. “This evidence is not only relevant, it is admissible.”
Prosecutors argued the testimony of the other accusers is relevant “to establish a common plan, scheme or design” for the jury and “to establish that an individual, who over the course of decades intentionally intoxicated women in a signature fashion and then sexually assaulted them while they were incapacitated, could not have been mistaken about whether or not Ms. Constand was conscious enough to consent to the sexual abuse.”
“He did it 19 times before he did it to Andrea Constand. It’s not an accident. He knew the debilitating effects these drugs would have on his victim,” Jappe argued.
When the pretrial hearing reconvenes on Tuesday, defense lawyers will deliver their arguments against allowing the 19 other alleged accusers to testify. In court papers, the defense team previously argued admitting evidence of even just one of the “uncharged and unproven accusations would be highly prejudicial.”
Judge O’Neill indicated he likely would not rule on the admissibility of the testimony of the 19 other alleged accusers on Tuesday and that his decision would come at a later date.
“It’s an extremely weighty issue. This is a big issue,” O’Neill told the lawyers.
O’Neill’s ruling is considered one of the major pretrial legal decisions in the Cosby case. Legal insiders believe the key to the prosecution’s case against Cosby is the admissibility of evidence involving alleged accusers who came forward after Constand’s allegations came to light.
During Cosby’s first trial last June on charges he sexually assaulted Constand, a former Temple University athletic department employee in January 2004, O’Neill allowed prosecutors to present the testimony of only one other accuser, or “prior alleged victim,” Kelley Johnson.
Johnson, 55, accused Cosby of engaging in sexual misconduct with her in 1996. Johnson testified she met Cosby around 1990 through her employment working as an assistant to Cosby’s personal appearance agent at the William Morris Agency.
District Attorney Kevin R. Steele had asked the judge to allow a total of 13 other alleged Cosby accusers to testify at the first trial, but the judge ruled in February 2017 that 12 of the women could not testify.
After Cosby’s first trial ended in a mistrial Steele sought a retrial and now is asking O’Neill to reconsider his earlier ruling and allow 19 other accusers to testify. Steele and Jappe argued a decision by a state court in a homicide case, “that was decided after” O’Neill’s February 2017 ruling, determined that certain “prior bad acts evidence” is admissible at a trial.
Before the hearing began, Steele surprised everyone in the courtroom when he asked the judge to prohibit Cosby’s new defense team from remaining in the case. Steele, who previously didn’t challenge the out-of-town defense team’s appearance in a Pennsylvania courtroom, argued defense lawyers made “reckless and false” statements about prosecutors in pretrial court filings and should not be permitted to continue in the case.
In those pretrial papers defense lawyers accused prosecutors of misconduct for allegedly failing to disclose they interviewed Marguerite Jackson, a potential trial witness who reportedly worked with Constand at Temple University and who claimed Constand once told her that she “had not been sexually assaulted but she could say that she had, file charges and get money.”
But Steele argued Cosby’s previous lawyer Brian J. McMonagle acknowledged that he was fully aware that prosecutors met with Jackson prior to Cosby’s first trial last June.
The new defense team subsequently filed a supplemental motion, backing off the claim, acknowledging that Cosby’s previous lawyer did learn about the prosecution’s interview of Jackson before the first trial in June 2017.
“These folks come as guests of the court. They have not earned the right to practice here in Pennsylvania,” Steele said at one point regarding the defense team members from California and Nevada who previously were granted special permission to practice in Pennsylvania for Cosby’s trial.
The judge called Steele’s request to oust the defense team “a big deal,” adding if he granted it Cosby would not have the lawyers of his choice. The judge ultimately ruled Mesereau and his team could stay in the case.
When defense lawyers sought a dismissal of the charges on the grounds prosecutors can’t prove the alleged incident occurred within the statute of limitations, they argued Constand previously testified the sexual assault occurred at Cosby’s Cheltenham home before Jan. 20, 2004, forcing prosecutors to prove that the incident occurred on an evening somewhere within a 22-day window between Dec. 30, 2003, and Jan. 20, 2004.
The statute of limitations for the crime is 12 years. County prosecutors charged Cosby, 80, with aggravated indecent assault on Dec. 30, 2015.
But prosecutors argued the criminal complaint lodged against Cosby clearly identified the relevant timeframe. Assistant District Attorney Robert Falin suggested Cosby’s claim was premature and more a challenge to the sufficiency of the evidence and not a pretrial issue. Falin suggested at trial Cosby will be free to present any admissible evidence he believes supports his statute of limitations defense.
