NORRISTOWN, Pennsylvania—None of Bill Cosby’s 19 accusers prosecutors want to testify at his trial should be allowed because it’s going to be difficult enough to get an unbiased jury in light of the #MeToo movement, one of Cosby’s defense attorneys argued Tuesday morning.
“The purpose would just be to enrage the jury this time fueled by even more prejudicial… ‘Me Too’ accusations that have nothing to do with Mr. Cosby at all,” 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,” she said. “Today we live in an environment where accusations rage out there…many, many accusations against many, many celebrities, not only Mr. Cosby,” she said.
The attorney for Cosby’s alleged victim, Andrea Constand, told The Daily Beast previously she feared about a “backlash” to #MeToo.
Montgomery County District Attorney Kevin Steele has asked the court Monday to allow 19 women who say Cosby drugged and sexually assaulted them over a 40-year period be allowed to testify at trial as evidence of “prior bad acts. James spent 90 minutes arguing why that shouldn’t be allowed.
Cosby, 80, is charged with three counts of aggravated indecent assault for allegedly drugging and sexually assaulting former Temple employee Andrea Constand, now 44, at his Philadelphia-area mansion in January 2004. Last June, Montgomery County Judge Steven O’Neill declared a mistrial after a jury deliberated for 52 hours without being able to reach a verdict. Cosby’s new trial is scheduled to begin April 2, with jury selection starting on March 29.
Cosby has denied Constand’s allegations as well as similar ones from more than 60 women. He was in court Monday and Tuesday for arguments on various pre-trial motions.
James’s arguments on his behalf went on for so long the court blew past the usual mid-morning court break.
“If nobody here is squirming, let’s keep going,” O’Neill said at one point.
Suddenly Cosby piped up, “I was squirming,” which brought a burst of laughter from the courtroom.
Cosby’s attorneys have said they will ask to delay the start of the trial if any or all of the 19 women are allowed to testify, saying it would be like having to prepare for 19 “mini trials.” O’Neill made it clear Tuesday he wouldn’t grant such a request.
“You already said you know all of their names,” O’Neill said to James. My ruling, whatever it is, will not delay the trial… you’ve had two-and-a-half months to prepare.”
It was also clear he is torn about allowing the other women to testify, grilling both sides on what the legal precedent is and whether any courts have issued rulings about how many “prior bad act” witnesses is too many.
Montgomery County Assistant District Attorney Adrienne Jappe helpfully offered him a possible solution, saying while there is no “bright line” rule as far as the number goes, there is precedent for the judge permitting all of the witnesses to testify then stopping them during the trial if he believes the “cumulative value” is too prejudicial to Cosby.
“The conduct of the defendant of deliberately intoxicating young women and then sexually assaulting them is unprecedented in this commonwealth,” she said. “So I would submit you’re not going to find a case where 19 prior bad acts have been admitted…but that should have no bearing on this court’s decision.”
O’Neill seemed to like this idea, but James vehemently objected.
The prosecution only wants other women to testify due to their “weak” case against the defendant, she said.
“I don’t disagree with the commonwealth that this case is weak [but] …these fatal weaknesses in the commonwealth’s case do not justify them being able to bring in 19 additional witnesses with unprovable, uncharged accusations,” she said.
O’Neill said he will do “exhaustive” research before issuing his ruling, which will likely be next week.
The two sides also continued to bicker over the proposed testimony of defense witness Marguerite Jackson, a Temple University employee who said Constand told her she was going to make up sexual assault allegations against a “high profile” person about a year before she went to police.
O’Neill barred her from testifying at the first trial but said Monday the defense could mention her in their opening arguments in this trial. After the prosecution objected, he said Tuesday he’d rule on the matter before trial.
Tension between the two sides escalated over what aspects of the civil suit Constand settled with Cosby in November 2006 could be mentioned at trial. They couldn’t agree on that for the first trial so it wasn’t mentioned at all. This time, the defense is removing its objections.
“We reserve the right to use it and in fact the civil settlement very tightly connects with Ms. Jackson’s testimony,” Tom Mesereau, Cosby’s high-profile new lead defense attorney, told the judge.
Montgomery County Assistant District Attorney Stewart Ryan argued that if the civil suit is mentioned then the fact Cosby settled it should be mentioned as well.
“If they do that obviously we reserve the right to bring before the jury how much money she got...just how greedy this person was,” said Mesereau, who previously represented Michael Jackson, Mike Tyson, and Robert Blake.
“No one over here,” said Ryan, turning and pointing to his colleagues, “knows what the settlement was.”
“I believe your witness does,” the judge said.
“But she can’t tell us,” Ryan shot back, referencing the confidentiality agreement Constand signed when she settled the lawsuit with Cosby.
O’Neill said he would rule on the issue before trial. He also repeatedly refused to allow the advocacy group RAINN (Rape, Abuse & Incest National Network) to file an amicus brief in the case, something the prosecution mentioned more than once.
“I don’t need outsiders in an issue that is solely for this judge to decide,” O’Neill said before adjourning for the day at 12:20 p.m. “RAINN’s pleading won’t come into this court.”