Pennsylvania Supreme Court asked Tuesday whether Bill Cosby’s alleged history of intoxicating and sexual abuse of young women amounted to a distinctive crime pattern, given studies showing that as many as half of all sexual assaults involve drugs or alcohol.
Cosby, 83, hopes to overturn his 2018 sexual assault conviction as the judge has prosecutors call five other prosecutors who said Cosby assaulted them in the same way as his victim, Andrea Constand. The defense said their testimony biased the jury towards the actor and should not have been allowed.
“That behavior you describe – the steps, the young women – there is literature that says 50 percent of these attacks – thousands of attacks – occur across the country,” Chief Justice Thomas G Saylor asked a prosecutor during oral arguments in the Pennsylvania Supreme Court. “So how can that be a blanket plan?”
The prosecutor in response provided more precise details about the relationships, saying Cosby used his fame and fortune to mentor the women and then took advantage of it. And sometimes he befriended their mothers or families.
“There was a built-in level of confidence because of his status in the entertainment industry and because he presented himself as a public moralist,” said Deputy District Attorney Adrienne Jappe, of Montgomery County in the Philadelphia suburbs, where Constand said she had been attacked. Cosby’s estate in 2004.
“The signature was to isolate and intoxicate young women for the purpose of sexually assaulting them,” Jappe said.
Cosby has served more than two years of his three to 10 year sentence for drugging and molesting Constand, whom he met through the basketball program at his alma mater, Temple University.
Courts have long grappled with decisions about when other prosecutors may testify in criminal cases. It is generally not allowed, but state law allows for a few exceptions, including showing a distinctive crime pattern or proving someone’s identity.
The state’s supreme court seems eager to address the issue, passing the first criminal case involving #MeToo-era celebrities. It usually takes the court a few months to give its opinion.
Judge Steven T O’Neill had only one other prosecutor testify at Cosby’s first trial in 2017, when the jury was unable to reach a verdict. The #MeToo movement held up months later with media reports of movie mogul Harvey Weinstein and other men accused of sexual misconduct.
O’Neill went on to have five other prosecutors testify at Cosby’s 2018 retrial, when the jury convicted him of drugging and sexually assaulting Constand.
Cosby’s professional attorney, Jennifer Bonjean, said prosecutors exploited “all these vague testimonials” about his past behavior and his admission that he had given women alcohol or quaaludes before sexual encounters.
“They put Mr. Cosby in a position where he had no shot. The presumption of innocence simply did not exist for him, ”Bonjean said Tuesday in the arguments held online over the COVID-19 pandemic, the Associated Press news agency reported.
Constand went to the police in 2005, about a year after the night at his home. The other women knew Cosby through the entertainment industry in the 1980s and did not go to the police.
The defense also contested the judge’s decision to let the jury hear the damaging testimony that Cosby had given in a lawsuit brought against him by Constand in 2005, after then-prosecutor Bruce Castor refused to arrest Cosby.
The testimony was sealed for nearly a decade until the AP asked a federal judge to release documents from the case when more Cosby prosecutors came forward.
The judge agreed, and Castor’s successor reopened the case in 2015, just months before the statute of limitations to arrest him would expire.
Bill Cosby’s lawyers will argue on Tuesday that his 2018 sexual assault trial was marred by evidence and testimony that should have been ruled out as they ask Pennsylvania highest court to throw the conviction away. https://t.co/YOVfOUaIe6
– Action news on 6abc (@ 6abc) December 1, 2020
Cosby, a once-beloved comedian and actor known as “America’s Dad,” has said he will serve his full 10-year term rather than admit wrongdoing to the parole board.
Criminal law professor Laurie Levenson felt it was important for the court to review Cosby’s conviction, given the publicity the case raised, the legal questions it raised and the potential influence of the #MeToo movement.
However, she was less sure that there is data showing that intoxication was as common in sexual assault cases in the 1980s through 2004 as it is today.
“We have heard a lot more about doping forms of sexual assault [recently], but I’m not sure how common it occurred at the time of this violation, ”said Levenson of Loyola Law School. “I think the court is doing the right thing, which is asking, ‘Was he convicted on legitimate evidence?’ ”
The AP does not usually identify victims of sexual assault without their consent, which Constand has granted.