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The trial isn’t over, but as prosecutors in Pennsylvania take a second shot at trying to convict Bill Cosby of sexually assaulting Andrea Constand back in 2004, Judge Steven O’Neill has made a series of decisions that could prime an extraordinary appeal should Cosby lose.
Cosby escaped conviction back in June 2017 when jurors ended up deadlocked. The retrial is now happening in Montgomery County before O’Neill, who has lived up to his pledge to re-examine all of his past rulings from the first trial.
Perhaps most significantly, O’Neill has allowed prosecutors to call to the witness stand five women who accuse Cosby of perpetrating a drugging and assault. At the last trial, only one additional accuser, Kelley Johnson, was permitted to testify about a pattern of sexual misconduct. This time, the judge has been much more lenient in permitting prosecutors to introduce so-called “prior bad acts,” and so witnesses like model Janice Dickinson were allowed to testify how she once allegedly found “America’s Dad” on top of her. The result of this testimony could transform the case from the type of he-said-she-said proceeding that split jurors during the last trial into one that more closely resembles the court of public opinion, where doubts on Cosby’s innocence has been sharply influenced by the dozens of accusers with similar stories.
O’Neill’s decision to let the jury hear from more accusers isn’t the only notable departure from the first trial.
For example, the judge permitted introduction of how Cosby once spent $3.4 million to settle a civil lawsuit from Constand. That evidence was precluded from the trial last year.
And not all reconsiderations have gone the way of prosecutors. Cosby is being allowed to call to the witness stand a former Temple University colleague of Constand‘s, who wasn’t allowed to speak at the first trial about an old conversation where Constand allegedly indicated she was out to get money.
All of this inconsistency raises a fundamental question about jurisprudence: Does the law dictate a right and wrong way to hold a trial? Or do judges really have such extraordinary discretion that they can even depart from their own precedent? Perhaps making this situation even more confusing is how O’Neill is issuing short orders on motions in lieu of explaining in detailed opinions the legal basis and reasoning behind his rethinking.
To be sure, if Cosby is convicted, his appeal will likely be premised on a violation of due process.
Almost since day one of the Constand case, the comedian has been holding up his Fifth Amendment rights. One of his earliest motions dealt with the lengthy time it took prosecutors to bring the criminal case, a proceeding that he argued violated a non-prosecution agreement made in 2005. Back then, Cosby says the previous occupant of the D.A.’s office elected not to bring charges and Cosby was given assurances so he could testify in Constand’s civil lawsuit.
And Cosby did so testify during the civil lawsuit.
During Cosby’s deposition, he admitted receiving Quaaludes to use on young women that he wanted to have sex with. On Tuesday, Judge O’Neill allowed those deposition statements into the trial over objections from Cosby’s legal team.
Prosecutors successfully argued that since the judge had ruled admissible the testimony of five prior bad act witnesses, it was wholly consistent to also allow evidence related to Cosby’s criminal “signature,” that is, further evidence having critical bearing on Cosby’s motive and intent.
Cosby’s lawyers urged the judge to preclude the deposition comments with the argument that a prescription for Quaaludes in the 1970s has nothing to do with the “three blue pills” that Constand allegedly received from him on the night in question.
“A criminal trial does not provide the forum for a prosecution to trot out any bad or untoward conduct it believes a defendant may have engaged in and hold him accountable for that,” stated the defense motion. “Yet that is precisely what the Commonwealth attempts to do as it seeks to introduce additional irrelevant and ancient ‘other act’ evidence. Contrary to the Commonwealth’s efforts, it is constitutionally impermissible to relieve the Commonwealth of its burden to prove every element of the charged offense beyond a reasonable doubt. Here, the Commonwealth has presented absolutely no evidence that Ms. Constand took any drug other than Benadryl on the night of the alleged incident.”
Judge O’Neill wasn’t swayed. He issued a cursory order granting a motion to introduce Cosby’s admissions.
With a criminal conviction perhaps at hand against someone who most people feel is guilty, few are going to be too concerned about Cosby’s civil liberties. Many may feel this retrial is the more fair of the two Cosby trials, given fewer limitations on what can be introduced. But as the trial heads into its final stretches, it might be wise to be mindful that this case has hardly been typical. If Cosby is declared guilty, the retrial is setting up an appeal with a lot to discuss and mammoth stakes.