Judges on the Pennsylvania Supreme Court questioned and expressed skepticism about the use of five “prior bad acts” witnesses in Bill Cosby’s criminal trial during an appeal hearing on Tuesday.
Cosby, 83, is more than two years into a 3-to-10-year sentence at a prison outside Philadelphia for drugging and sexually assaulting Andrea Constand, a former Temple University employee, at Cosby’s home in 2004.
The three assault charges in the case centered on Constand’s testimony. But at his criminal trial, Montgomery County Judge Steven O’Neill allowed five other women, including supermodel Janice Dickinson, to testify as “prior bad act” witnesses who said that Cosby had similarly drugged them with the intent of assaulting them in previous incidents.
Cosby’s attorney Jennifer Bonjean argued Tuesday in the virtual hearing that these witnesses unfairly prejudiced the jury — and some judges suggested they agreed.
“I tend to agree that this evidence was extraordinarily prejudicial to your client,” Justice Max Baer said to Bonjean.
The state Supreme Court is made up of seven members, and at least four sharply questioned Assistant District Attorney Adrienne Jappe, who argued for the prosecution. She argued that the prior bad acts witnesses showed Cosby had a common scheme or plan in his assault. She also said their testimony showed Cosby did not make a mistake or accident in his actions.
However, Justice Kevin M. Dougherty questioned whether the witness accounts, which dated to incidents in the 1980s, were too distant to be appropriate. In addition, Justice Christine Donohue questioned whether the prior bad acts witnesses were too dissimilar from Constand’s allegations.
“Frankly, I don’t see it,” Donohue said.
The sharp questions open the possibility that Cosby’s conviction could be overturned on appeal. A ruling on the case is not expected for months.
The judges appeared less convinced by a second argument made by Cosby’s attorney: that Cosby sat for a civil deposition only because the prior district attorney Bruce Castor had promised he would not prosecute him criminally. In that deposition, Cosby admitted that he procured Quaaludes for women he wanted to have sex with.
Deputy District Attorney Robert Falin argued Tuesday that Castor had simply issued a press release declining to prosecute. The press release was not legally binding, he argued, and left open the possibility that future evidence could change his decision.
Indeed, Cosby’s attorney admitted Tuesday that Cosby’s deposition may have been a mistake.
“In hindsight, we would have preferred to have seen a written agreement,” Bonjean said.