Cosby Appeal Appears to Curry Little Favor at Top State Court

Bill Cosby’s verified Twitter account released this photo on Oct. 20, with the caption explaining that it was taken by his publicist, Andrew Wyatt, during their first virtual video conference call together last week. “We are posting this to reassure his family and supporters that he is doing ok during this pandemic,” the message continues. (Twitter via Courthouse News)

PHILADELPHIA (CN) — Labeled a sexually violent predator on the evidence of witness testimony spanning decades, Bill Cosby told Pennsylvania’s highest court on Tuesday that his trial was a sham.

The appeal comes two years after a retrial that saw the once-beloved comedian convicted of assault and given an sentence of up to 10 years in prison.

Cosby was convicted only of one woman’s assault, but prosecutors supplied the jury with a bevy of examples to show that the octogenarian defendant had drugged and assaulted Andrea Constand in the same manner recounted by dozens of other women over the years.

Arguing for a reversal Tuesday, criminal defense lawyer Jennifer Bonjean insisted that such testimony should have been barred.

“After failing to secure a conviction after Mr. Cosby’s first trial, the prosecution shifted strategy, laying waste to the presumption of innocence and telling the jury that Mr. Cosby’s claim of defense could not be believed, because ‘he had done this so many times before,’” Bonjean said. “The prosecution forced Mr. Cosby to defend not only the charged defense but five mini-trials and vague accusations from countless Jane Does dating back to the 1970s.”

But the words of multiple accusers were not the only specter of the past hanging over Cosby at trial. Prosecutors also highlighted deposition testimony from a 2005 civil trial with Constand where Cosby admitted to supplying women with quaaludes before having sex with them.

The deposition was sealed for years until comedian Hannibal Buress went viral with a stand-up bit that breathed new life into what were then nearly forgotten assault claims against Cosby.

Bonjean maintained Tuesday that her client had suffered “unquantifiable prejudice” from both the testimonies and deposition. 

“The prior-bad-act evidence overwhelmed his second trial, converting it from a trial of a single offense to a trial of his character,” Bonjean said.

When Justice Kevin Dougherty asked why Cosby didn’t invoke the Fifth Amendment during the four-hour-long deposition in 2005, Bonjean answered that Montgomery County’s then-District Attorney Bruce Castor had made assurances that he would not be prosecuted if he cooperated.

“High-profile people rely almost to their detriment on legal advice,” Bonjean said Tuesday.

But Justice Max Baer pointed out to Bonjean during the hearing Tuesday that there is no written evidence of any sort of deal with Castor. 

Bob Falin, a deputy district attorney for Montgomery County, made this point as well. He said Cosby might have cooperated so that he wouldn’t look guilty by pleading the Fifth.

“He was trying to avoid the negative consequences of invoking the Fifth in the situation, and it backfired on him,” Falin said, noting that Cosby “slipped up and made statements that came back to haunt him.”

Andrea Constand arrives at the Montgomery County courthouse in Norristown, Pennsylvania, on Sept. 24, 2018, for the sentencing of Bill Cosby, who was convicted in April of her 2004 sexual assault. (David Maialetti/Pool via Reuters)

As for the additional witnesses, Montgomery County Assistant District Attorney Adrienne Jappe noted that the state had 19 women ready to testify about Cosby’s sexually predatory behavior. The court allowed only five of them onto the stand.

“The defendant engaged in a pattern of seeking out young women,” Jappe said. “He met them through their employment or their career; he offered to mentor most of his victims. There was a built-in level of trust because of his status in the entertainment industry, and because he held himself out as a public moralist.”

Jappe also noted how the evidence showed that Cosby always controlled where he met and intoxicated the victims so he could “carry out his plan without any interrupted discovery.” 

Justice Christine Donohue asked Cosby’s counsel at the hearing why the evidence offered did not go to establish a common scheme or a “signature crime.”

Bonjean said that the prior-bad-act evidence was not part of a single, overarching plan, and that it is bad form to introduce prior-bad-act evidence in a case where a criminal’s identity is not in question. “When identity is not in dispute, the evidence simply registers with the jury as propensity evidence,” she said.

For Jappe, however, the pattern established that Cosby knew that Constand was an unwilling sexual partner. A lesbian who is 35 years Cosby’s junior, Constand testified that she could not have conceived of the grandfatherly Cosby as either a romantic partner or a threat.

“The commonwealth had to prove that the defendant engaged in nonconsensual penetration of Andrea Constand’s vagina,” Jappe said. “Thus, as I indicated the main issue became one of consent. Without this evidence the commonwealth would have had to largely rely on the uncorroborated testimony of Andrea Constand regarding the lack of consent.”

Bonjean nevertheless said Constand’s situation was different from the those of the other accusers because she had been close with Cosby. They met through Temple University where Cosby was a trustee and Constand served as director of operations for the women’s basketball team.

“This was an 18-month relationship. This was a relationship that at least by [Constand’s] own testimony was built on friendship. They exchanged gifts. They spoke regularly,” Bonjean said.

Though the defense portrayed the other accusers as chance encounters with Cosby, Jappe said there were several examples where Cosby long interacted with women he would go on to assault.

Cosby, 83, is incarcerated at a state prison near Philadelphia. As a sexually violent predator, he has been unable to use the Covid-19 pandemic to get out.

The virus also kept Cosby from attending Tuesday’s hearing which was held as a videoconference.

The court did not indicate when it intends to rule, but a spokesperson for Pennsylvania courts said the average length of time for a decision is approximately five months.

Screenshot of videoconference for Bill Cosby’s appeal heard Tuesday, by the Pennsylvania Supreme Court. (Image via Courthouse News)
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