1:21pm PT by Eriq Gardner
How Bill Cosby's Appeal Could Become a #MeToo Test Case
The conviction of Bill Cosby on Thursday was certainly a historic moment, as the entertainer once known as "America's Dad" was found guilty by a Pennsylvania jury of sexually assaulting a woman he once mentored. For Cosby's many other female accusers, it was a relief, and for others, there was a high degree of rejoicing upon the vision of a once-powerful man being held responsible for what looks to be a heinous pattern of drugging and raping women over many decades.
That said, Cosby might stand a better than typical shot of overturning his conviction. That doesn't mean he will get this result and even the prospect of a reversal of the conviction might not be something that people wish to entertain. But many legal experts agree that the retrial of the comedian and actor was atypical in many ways and that his coming appeal sets up tremendously important issues that will give appellate authorities plenty to contemplate. The outcome won't just impact Cosby; it could shape the future trials of others in the #MeToo era.
"I've never seen a retrial that was as different from the initial trial," says Dennis McAndrews, who once served as a prosecutor in the Philadelphia area and tried such notables as Jerry Sandusky and John du Pont.
Before discussing what precisely Cosby might challenge on appeal, realize that the 80-year-old comedian could spend time behind bars during the process nonetheless. His sentencing will come within the next two months, and until then, he's out free after convincing the trial judge he's no flight risk. Once Judge Steven O'Neill imposes a sentence — Cosby was convicted of three felony counts and each carries a maximum of 10 years with the sentences potentially running concurrently — the comedian may be taken into custody. His lawyers could point to his advanced age and attempt to argue for his freedom during the appeal, but most often, convicted defendants aren't granted such motions. It'll be the judge's call.
As for the appeal, this won't be the equivalent of a new trial. To the extent that appellate judges look at what happened during trial proceedings to see if the weight of evidence supports a conviction, those types of appeals tend to be weak. Higher courts generally don't second-guess the conclusions of a jury.
Instead, Cosby's appeal is likely to focus on whether his constitutional rights were violated and whether he got a fair trial. There are at least three points that could generate significant discussion moving forward.
First, let's look at the circumstances of the trial. His prosecution by District Attorney Kevin Steele came in part because of Pennsylvania's lengthy 12-year statute of limitations, but that might not be the final word on the timeliness of the prosecution. After all, the Sixth Amendment to the U.S. Constitution guarantees citizens a right to a trial "without unnecessary delay." Much of the evidence was collected by law enforcement officials not too long after the 2004 incident between Cosby and Andrea Constand. In the early days of the criminal case, Cosby pointed to the prejudice he allegedly suffered as a result of the delay in charging him: His former lawyer (a potential witness) died, memories faded, even his slipping eyesight made it tough to review documents.
Is it enough? Perhaps not, but as states around the country lengthen the statute of limitations for sexual assaults (some in direct response to the Cosby scandal), it will be interesting to watch this potential Sixth Amendment issue being presented on appeal.
"While I don't think this will result in reversal, this could be a good test case where we get guideposts on what is meant by the right to a speedy trial," says Michelle Dempsey, who once worked as a domestic violence prosecutor and now teaches law at Villanova University.
Second, was Cosby promised he wouldn't be prosecuted? If so, was there a substantial error made in the way that O'Neill allowed the jury to hear Cosby's old deposition testimony?
Cosby, after all, also argued in the early days of the criminal case that he got a nonprosecution agreement from Bruce Castor, the former Montgomery County DA. In 2005, Castor characterized the Cosby case as "weak," and while perhaps not formalizing any written agreement (Dempsey says any immunity promise should have been signed), he put out a press release announcing the decision not to prosecute. Castor would later explain that he thought Constand was credible, but didn't think the evidence was strong enough and that he wanted to give Constand a better chance of justice in a civil lawsuit by removing a potential barrier for Cosby's testimony.
The alleged assurance that Cosby wouldn't be prosecuted convinced him to give a deposition in Constand's lawsuit instead of invoking a Fifth Amendment right. At his deposition, Cosby admitted to procuring drugs for the purpose of sex with women. After the Associated Press successfully petitioned a judge to unseal this material (a decision the 3rd Circuit Court of Appeals would later deem to be an error), Castor's successor Steele cited Cosby's admission as one of the primary pieces of new evidence that allowed him to file charges.
At trial, Cosby didn't take the witness stand, but was his right against self-incrimination undercut by the introduction of the old deposition he might not have given but for what he was told? On appeal, Cosby could argue that prosecutors essentially duped him into giving up his Fifth Amendment rights.
Third, what about all those other accusers who testified against Cosby?
At the retrial, five women who accuse the comedian of drugging and assaulting them were allowed to testify as "prior bad acts" witnesses in an effort for prosecutors to prove the behavior was a pattern. Last time, only one of the women was allowed to take the stand. "i think that the inclusion of the additional victims was the critical factor," says McAndrews.
While Pennsylvania law allows for "prior bad acts" witnesses, prosecutors must prove the elements of the charged crime and the relevance of additional conduct must outweigh any prejudice from forcing a defendant to confront historical misbehavior. The fact that O'Neil would only allow one accuser at trial No. 1 and then five accusers at trial No .2 not only demonstrates inconsistency, it perhaps showcases the lack of legal precedent and clear guidelines on what a judge must do.
This judge has pushed discretion to the limits by throwing out the first trial's rulebook, and McAndrews says he expects this issue to be "front and center" during the appeal. He adds his belief that appellate courts afford trial judges with enough latitude on decision-making to affirm the verdict, but the question of evidentiary inclusion in sexual assault cases, ones that tend to turn on credibility, provides yet another reason why Cosby isn't quite done setting due-process standards in the #MeToo era. His advanced age could provide some urgency to the appeals process, and his wealth will give him access to the kinds of lawyers that most felons can't hire.
After years of Cosby sexual misconduct scandal, the trial might be perceived as an endpoint by many exhausted by the topic. It's not. Some of the most intriguing legal drama lies ahead.