The Pennsylvania Supreme Court seemed deeply skeptical on Tuesday about whether five women should have been allowed to testify against Bill Cosby during his sexual assault trial.
Cosby is serving a three-to-10 year sentence for sexually assaulting Andrea Constand in 2004. In his appeal, his attorneys have argued that the judge should not have allowed the five other witnesses to tell jurors about their own accusations against the comedian.
The state Supreme Court heard arguments in the case on Tuesday morning. Several of the justices seemed troubled by the witnesses’ testimony, saying it may have unfairly influenced the jury.
“I tend to agree this evidence was extraordinarily prejudicial to your client,” said Justice Max Baer, speaking to Cosby’s attorney.
The case involves a key element of #MeToo trials — the use of “prior bad acts” witnesses to support the testimony of the alleged victim. Such witnesses were also used in Harvey Weinstein’s trial. Witnesses can be called to demonstrate a common pattern or “signature” crime, but cannot be used to show a mere propensity to commit crimes or to impugn the defendant’s character.
“A defendant must be tried for what he did and not who he is,” argued Cosby’s lawyer, Jennifer Bonjean. Once the jurors heard the five women’s accounts, she argued, “He had no shot. The presumption of innocence just didn’t exist for him at that point.”
Montgomery County Judge Steven O’Neill allowed just one prior bad acts witness to testify at the first trial, which ended with a hung jury. At the retrial, O’Neill allowed the five women to testify.
The prosecution argued that the women’s testimony showed a common pattern — Cosby would befriend and isolate young women, and then give them a drug to make it impossible for them to repel his sexual advances.
But the justices seemed dubious that that was enough to establish a “common pattern.” Justice Christine Donohue grilled Adrienne Jappe, the assistant district attorney who argued the case for the prosecution, urging her to spell out all the common elements in detail.
“Frankly I don’t see it,” Donohue said.
The chief justice, Thomas Saylor, also expressed doubt about the “signature,” saying that the elements of the crime are “common to 40-50% of these assaults nationwide.”
Justice Kevin Dougherty also seemed troubled that witnesses could testify about prior bad acts that occurred decades prior.
Cosby’s attorneys have also argued that the D.A.’s office should have been bound by the prior D.A.’s agreement not to prosecute him. That issue was also raised at the Supreme Court argument. Cosby’s attorneys contend that he relied on the non-prosecution agreement when he agreed to sit for a deposition in Constand’s civil case, and that the deposition thus should have been excluded from the criminal trial.
A decision is not expected for several months.