A Pennsylvania judge handed a major victory Thursday to prosecutors in the Bill Cosby sexual assault case, ruling that five accusers can be called as witnesses in an effort to establish a pattern of the star’s alleged predatory behavior.
The unusual decision by Judge Steven T. O’Neill did not specify which accusers can provide testimony at Cosby’s retrial, instead giving prosecutors the option of selecting five women from a portion of a list of 19 they’d submitted as possible witnesses. The judge’s ruling states that prosecutors can choose five women from among the eight making the most recent allegations, dating back to 1982, but cannot select women who say they were sexually assaulted before that date.
The decision represents a dramatic shift with the potential to completely reshape the case, which is set to begin with jury selection on March 29 and testimony on April 2. At Cosby’s first trial last June, which ended in a mistrial, prosecutors were hampered in their efforts to paint Cosby as a serial abuser because Judge O’Neill allowed only one previous accuser to testify. They had asked for 13.
But this time, prosecutors mounted an aggressive push to add additional accusers to the witness list, increasing their request to 19 women, and citing a legal concept known as the “doctrine of chances.” The doctrine essentially says that the more often the same person is accused of the same crime with the same set of circumstances, the less likely that the accused was innocently involved in those situations.
The doctrine played a small role in a Pennsylvania court ruling that was issued last year after O’Neill delivered his decision on previous accusers for the first trial. It was cited in a concurring opinion in a case. Cosby’s defense team vigorously argued that was not enough of a legal precedent. In a contentious hearing earlier this month, Cosby defense attorney Becky James contended that allowing a large number of previous accusers to testify would amount to creating a series of “mini-trials” that would unfairly prejudice the jury against Cosby.
Cosby, now 80, is accused of drugging and sexually assaulting Andrea Constand, a former Temple University women’s basketball official, at his suburban Philadelphia estate in 2004. A mistrial was declared last June after jurors said they were deadlocked following more than 50 hours of deliberation on three counts of felony aggravated indecent assault.
O’Neill’s two-page ruling provided scant information about his reasoning. The Montgomery County, Pa., judge noted that he had looked at the prosecution’s assertion that the previous accusers represented a “common plan, scheme and design” compared to the allegations in the Constand case, a hurdle they needed to cross to persuade him to allow testimony from the other women. At a hearing earlier this month, prosecutor Adrienne Jappe said that Cosby “systematically engaged in a signature pattern” of drugging and sexually assaulting women who looked up to him as a mentor.
Courts are often reluctant to allow such testimony because of the potential to unduly influence jurors who will be asked to focus on the specifics of the case at hand — in this instance, Constand’s assertion that Cosby gave her pills that rendered her incapable of consenting to his sexual advances. (Cosby says the relationship was consensual.)
Prosecutors will be selecting from a slate of witnesses whose allegations stretch from the 1960s to the early 1990s. Only one of the witnesses has been identified publicly—Kelley Johnson, a former assistant to Cosby’s personal appearances agent. Johnson offered tearful testimony at Cosby’s first trial, saying that the comedian intimidated her into taking a pill that made her vision go fuzzy at the swanky Bel-Air Hotel in the 1990s. However, many of the other potential witnesses are easily identifiable because they have made public statements about their allegations that precisely match the circumstances laid out by prosecutors in their requests to allow testimony from previous accusers.
Among the witness that prosecutors could call is a Harrah’s Reno bartender who says Cosby sexually assaulted her at a Nevada home in 1982 after insisting that she take two pills. The woman, according to the prosecution court filing, says she felt “woozy” and “fuzzy,” then lost consciousness only to awake to discover evidence of intercourse.
Another possible witness is described a successful model who Cosby flew to Lake Tahoe in 1982, ostensibly to offer career guidance. The woman says she became “immobilized” after taking a blue pill Cosby gave her, and awoke with “a sharp pain in her buttocks.”
At least 60 women have publicly accused Cosby of sexual harassment, sexual assault or rape. But prosecutors have focused on women whose allegations follow a pattern of mentorship, followed by drugging and sexual assault. Constand has testified that Cosby took a special interest in assisting her career.
Another possible witness was a massage therapist who says she met Cosby at a Las Vegas health club between 1982 and 1984, according to court records. The woman told prosecutors that Cosby insisted that she take a drink at a hotel resturant. Later, she said, she felt like she was in a “hypnotic dream state.” When they got to Cosby’s dressing room, the woman said, Cosby started raping her, and there was nothing she could do, but lie there “like a rag doll.”