Bill Cosby was denied bail after being sentenced to up to 10 years in prison for his 2004 assault of Andrea Constand. Constand embraced supporters as she left court.
More than two years after a Pennsylvania jury found him guilty of three sex crimes, Bill Cosby’s lawyers will try to persuade the state Supreme Court this week to overturn his conviction based in part on constitutional grounds or on alleged procedural irregularities at his trials.
Cosby’s legal team, led by appellate lawyer Jennifer Bonjean,will go up against prosecutors for Montgomery County, Pa., led by District Attorney Kevin Steele, for virtual oral arguments Tuesday morning before the high court, appearing via YouTube from Harrisburg, Pa.
Cosby, 83, who is serving a three-to-10-year sentence at a state prison near his home outside Philadelphia, will not be able to watch, because he is blind due to glaucoma, nor listen, because he won’t have access, says his longtime spokesperson Andrew Wyatt.
“Mr. Cosby will be updated by me during and after oral arguments,” Wyatt told USA TODAY.
Bill Cosby arrives for a sentencing hearing following his sexual assault conviction in Norristown Pa., in September 2018. (Photo: Matt Rourke/ AP)
But Wyatt on Friday began urging Cosby’s supporters to tune in and watch the oral argument hearing, posting a video on Cosby’s social media accounts.
“In this 21st century, we have witnessed the senseless murders of black men and women at the hands of a few bad law enforcement officers — but not all,” Wyatt said as video images played.
“We have witnessed the unjust conviction and incarceration of a true American treasure and citizen, actor-comedian Bill Cosby, and we are witnessing a pandemic unlike anything we have seen in our lifetime,” Wyatt proclaimed.
A live-streamed oral argument before a state high court may be illuminating and rare (until the pandemic forced courts to adapt to new technology to cope) but it hardly counts as entertainment of the sort that fallen TV icon, actor/comedian Cosby, used to produce as “America’s Dad” long before he was convicted of sexually assaulting accuser Andrea Constand.
This hearing will be about high-octane legal concepts, some of which might zoom over the heads of non-lawyers. Nor will this hearing be lengthy; lawyers on both sides have to keep within strict time limits in their arguments.
Bill Cosby in prison on Sept. 4, 2020, in photo provided by the Pennsylvania Department of Corrections. (Photo: Pennsylvania Dept of Corrections via AP)
But for Cosby and his legal team, the hearing is crucial: It will focus on whether Cosby received a fair trial in April 2018 (his first trial the year before ended in a hung jury) before Montgomery County Judge Steven O’Neill, and if not, did that justify reversing his conviction.
When the high court accepted Cosby’s appeal in June, it was a major surprise: A state appellate court had already turned him down in full, with all of his many objections rejected. Most legal observers, including Cosby’s prosecutors, expected the same fate for Cosby’s appeal at the Supreme Court.
Instead, the court issued a one-page order saying it would review the appellate panel’s decision on Cosby’s case based first on whether O’Neill’s decision to allow other accusers to testify about alleged, uncharged “prior bad acts” by Cosby was prejudicial as opposed to probative, a standard used to allow or disallow testimony.
During the trial, Cosby’s lawyers, and his wife Camille, assailed the other accusers’ testimony as lies that were never charged. Prosecutors argued their accounts were too similar to the charges at issue in the trial to be coincidence, and thus were relevant.
“It is unusual, to say the least, that defendant has been repeatedly… accused of engaging in sexual conduct with unconscious or otherwise incapacitated young women,” prosecutors wrote in their brief on the appeal.
But the confused state of rulings on the use of prior bad acts testimony in other cases may be one of the reasons the state high court accepted Cosby’s appeal: as a means of clearing up the question – at least in Pennsylvania – about when and what juries can hear about a defendant’s alleged past acts.
The other issue the court is reviewing has to do with whether O’Neill improperly allowed testimony about a civil deposition Cosby gave after he said he was promised by an earlier county district attorney that he would not be prosecuted. By relying on that promise, was Cosby induced to make self-incriminating statements later used against him, and does that violate his constitutional rights against self-incrimination?
Bill Cosby accuser Andrea Constand with Montgomery County District Attorney Kevin Steele on April 28, 2018, after Cosby was convicted of drugging and sexually assaulting her in 2004. (Photo: Dominick Reuter/AFP/Getty Images)
Steele, who prosecuted Cosby at both trials, remains confident the Supreme Court will reject Cosby’s appeal. In June, he issued a statement, noting that the high court narrowed the issues on appeal.
“We look forward to briefing and arguing these issues and remain confident in the Trial Court and Superior Court’s previous decisions,” Steele said at the time.
One of the key differences between the two trials was that in the first, O’Neill allowed only one prior-bad-acts accuser to testify; at the second, he allowed five other accusers to testify.
The high court said it would review whether such testimony was too old, whether the details of the accusations differed too much from those alleged at the trial, whether that was more prejudicial than probative, and whether allowing such testimony constituted “nothing but improper propensity evidence.”
Cosby’s lawyer, Bonjean, told USA TODAY that it’s a foundational principle of American criminal law that just because a defendant “might have done something in the past does not make it more likely he’s done something now.”
“We’ve been swept up in a time when there’s a lot of emotion and so much #MeToo momentum that it was considered unheard of to question women,” Bonjean said. “We should take women (accusers) seriously but not accept everything hook, line and sinker without any sort of vetting.”
Cosby was found guilty of three counts of aggravated sexual assault of his friend Constand, a former Temple University staffer, in 2004 at his home in the suburbs of Philadelphia.
Constand, who now lives in Canada and is an advocate for sexual assault victims, reacted to the court’s acceptance of Cosby’s appeal with a lengthy tweet “respectfully” asking the court to “consider the enormous prospect of putting my perpetrator back into the community after being labeled a convicted sexually violent predator.”
While even convicted criminals have the right to appeal, Constand said the “true heroes” are the women who testified as prior bad acts witnesses against Cosby, and their rights matter most, she said.
A ruling on the appeal is not expected for several months.
Contributing: The Associated Press
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