NORRISTOWN, PA. — One woman said the drink Bill Cosby gave her left her feeling like she was “floating.”
Others said the sips they took at the behest of the legendary comedian made them “woozy” or “fuzzy.” There were women who said they felt “frozen,” “lightheaded” or “in a fog,” a prosecutor said Monday during a crucial hearing in advance of Cosby’s upcoming retrial on sexual assault charges.
Each of those women — 19 in all — should be allowed to appear before the jury that will decide Cosby’s fate when his retrial begins April 2, argued Montgomery County, Pa., prosecutor Adrienne Jappe. Without them, Jappe said, prosecutors would have a tougher time proving that Cosby was a “predator,” a methodical abuser who “systematically engaged in a signature pattern” of drugging and sexually assaulting young women who looked up to him.
Prosecutors have tried this approach before. Last year, in advance of a trial that ended with a hung jury, they tried to persuade the judge overseeing the case to allow testimony from 13 previous accusers. But Judge Steven O’Neill allowed only one to take the witness stand.
This time, however, prosecutors came armed with a different and potentially important argument: a legal decision related to testimony from previous accusers issued in an unrelated case after O’Neill’s ruling last year relied, in part, on a legal concept known as the “Doctrine of Chances.” The doctrine, which prosecutors cited frequently on Monday, essentially says that as the number of people reporting alleged assaults by the same person with similar sets of circumstances increases, the likelihood that the defendant was innocently involved those encounters decreases.
With Cosby watching from the defense table just a few feet away, Jappe insisted that the 80-year-old comedian assaulted women “time and time again.”
The question of fairness was raised by Judge O’Neill, who said to Jappe that “19 is a lot of numbers.”
Prosecutors have a high hurdle to cross because courts frequently frown on prosecutors presenting past allegations. They’ll have to persuade the judge that the value of testimony from past accusers outweighs the possible prejudicial impact of their appearances on the witness stand as the jury decides whether Cosby drugged and sexually assaulted Andrea Constand, a former Temple University woman’s basketball official, in 2004. Cosby has said his sexual encounter with Constand was consensual.
The previous accusers offered as possible witnesses by the prosecution represent about one-third of the women who have publicly accused Cosby of sexual harassment, sexual assault or rape. Prosecutors have not disclosed the names of the possible witnesses, though one of them — Kelley Johnson, a former assistant to Cosby’s personal appearance’s agent — testified at his trial in June last year. The alleged previous assaults span from 1965 to 1990.
On Tuesday, defense attorneys are expected to make arguments against allowing the women to testify. Besides covering legal ground, the pretrial hearings have afforded a glimpse of Cosby’s new defense team, headed by the famed Los Angeles attorney, Thomas Mesereau, who won an acquittal on child molestation charges for pop star Michael Jackson. Cosby had previously been represented by a prominent Philadelphia defense attorney, Brian McMonagle, who withdrew without explanation after the mistrial.
The new defense team and the prosecutors have already exhibited signs of tension. On Monday, lead prosecutor Kevin Steele called Mesereau and his co-counsels Becky James and Kathleen Bliss “incompetent and unethical,” and said they have “not earned the right to practice here in Pennsylvania.”
Steele was irked because of defense accusations that his prosecution team engaged in misconduct by “destroying” notes its investigators took during a meeting with a possible defense witness who wants to testify that Constand said she could falsely accuse a celebrity of sexual assault, then file a lawsuit that would generate enough of a settlement to start a business. The prosecutors said they did not keep notes because the witness, whose testimony was not allowed in the first trial, said nothing in their interview different from an affidavit she’d filed.
The defense attempt to have the case against Cosby dismissed because of their allegation of prosecutorial misconduct failed on Monday when O’Neill declined to through out the case. The judge also rejected a defense attempt to dismiss the case based on Cosby’s claim that phone and travel records prove the alleged assault could not have happened before the expiration of a 12-year statute of limitations.
Cosby was mostly impassive during the hearing, stroking his chin or rocking his chair at the head of the defense table. As the hearing was beginning, O’Neill turned to the comedian, whose 44-year-old daughter Ensa died recently after struggling with kidney problems.
“Condolences and sympathies,” the judge said.