Bill Cosby thinks he was repeatedly treated unfairly by the Pennsylvania criminal court system, and he’s been given the green light to appeal multiple rulings that led up to his April 2018 conviction for the 2004 aggravated indecent assault of Andrea Constand.
In the months following that verdict, the comedian has asked Judge Steven T. O’Neill to recuse himself because of an allegedly contentious relationship with former district attorney Bruce Castor, who agreed not to prosecute Cosby back in 2005; has filed a motion to reconsider and modify his sentence; and has asked for a new trial — all of which were denied and are now being reconsidered by the Pennsylvania Superior Court, along with other decisions.
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In an almost 200-page appeal brief, Cosby’s attorneys Kristen Weisenberger, Brian Perry and Sarah Kelly-Kilgore argue the court abused its discretion on a variety of issues, including its decision to allow multiple other accusers to testify as prior bad acts witnesses. In Cosby’s first trial, only one of such witnesses was allowed. That jury couldn’t arrive at a decision, resulting in a mistrial. Before the second trial, prosecutors asked to include testimony of 19 prior bad acts witnesses and the court allowed five.
“The lower court’s decision to allow testimony from five women other than the Complainant, and a de facto sixth woman via deposition excerpts, that Cosby had non-consensual sexual contact with them between 1970 and approximately 1986 was clearly erroneous and an abuse of discretion,” states the filing. “This evidence was used to strip Cosby of his presumption of innocence and to try to establish that Cosby had the propensity to sexually assault women. This evidence never should have been admitted at trial.”
The entertainer’s attorneys argue that the facts in each of those alleged incidents were not substantially similar to Constand’s allegations and, even if they were, they happened too long before the 2004 event to be admissible. “Here, given the current political and social climate, one cannot imagine more prejudicial testimony to incite an emotional reaction by a jury than to parade a stream of other women accusing Cosby of having inappropriate sexual contact with them, contact for which he was never charged, in a case involving allegations of sexual misconduct,” states the filing, which argues a new trial is warranted. (Read the full brief below.)
These issues are likely to be similarly significant in Harvey Weinstein’s upcoming criminal trial. There, New York judge James Burke has not yet issued a public decision regarding whether prior bad acts witnesses will be allowed and in what capacity.
In addition to the bad acts testimony, Cosby is asking the Superior Court of Pennsylvania to reconsider seven other decisions made by the court that were not in his favor: the February 2016 denial of his habeas corpus petition seeking dismissal of the charges against him because of the agreement with Castor; the December 2016 denial of a motion to suppress his civil deposition testimony (the public release of which reignited interest in the Constand case and caught the attention of the Montgomery County District Attorney’s Office) on the grounds that he waived his Fifth Amendment right against self-incrimination because Castor promised not to prosecute him; the decision to grant the Commonwealth’s motion to introduce admissions of the defendant; the September 2018 denial of his motion for recusal and reconsideration of recusal; the decision allowing a misleading jury instruction and another denying a motion to excuse a juror; and the September 2018 denial of a motion for a declaration that his designation as a sexually violent predator was unconstitutional.
Cosby is asking the court to either reverse and arrest judgment or grant a new trial.
The comedian’s spokesman, Andrew Wyatt, issued a statement Tuesday that said, in part, “This filing is an important step in ensuring that Mr. Cosby receives a hearing from a fair and impartial court. The Constitution guarantees that right to Mr. Cosby — and to all Americans — and he looks forward to securing justice in the court of appeal.” In the same statement, Cosby’s wife Camille Cosby added, “America will be great when it fulfills the last four words of the revered Pledge of Allegiance … ‘and justice for all.'”
