NORRISTOWN, Pa. (AP) — Letting jurors hear from some of Bill Cosby’s dozens of accusers at his looming retrial would sharpen the prosecution’s he-said-she-said case into a sweeping referendum on five-decades of alleged misconduct while sending his lawyers scrambling to dent their credibility, legal experts said Tuesday after a court battle over the potential witnesses.
Prosecutors are eager to widen the scope of Cosby’s April 2 retrial as they attempt to portray the once-beloved entertainment icon as one of Hollywood’s biggest serial predators who made a sadistic habit of drugging and molesting women.
Judge Steven O’Neill barred prosecutors from mentioning Cosby’s past and allowed just one other accuser to testify at his trial last year that ended in a hung jury.
O’Neill did not immediately rule Tuesday on arguments made by prosecutors and defense lawyers on how many, if any, of Cosby’s other accusers will be allowed to take the stand. He’s also yet to rule on whether the defense can mention details of a financial settlement Cosby paid in 2006 to the accuser in his criminal case, Andrea Constand.
Cosby’s lawyers argued Tuesday that jurors should only get to hear testimony about the alleged 2004 assault that led to the criminal charges against Cosby, not “ancient allegations” that would confuse, distract and prejudice the jury against the 80-year-old comedian.
Prosecutors want as many as 19 women, including model Janice Dickinson, to testify about allegations dating as far back as 1965 and as recently as 1990 or 1996. That’s at least eight years before Constand says he assaulted her at his suburban Philadelphia home.
“It’s not about what happened 50 years ago. It’s not about what happened with other people,” Cosby lawyer Becky James told O’Neill. “The jury has to be focused on that one issue.”
For prosecutors, having several accusers tell similar stories about Cosby would give them a chance to smooth over issues with Constand’s credibility and insulate her from attacks from his lawyers, who are keen to portray her as a money-grubbing liar.
Dave Zuckerman, a former prosecutor who practices criminal defense in the Pittsburgh area, said that “might help put the case over the edge in favor of the prosecution.”
“Now it becomes more than just one accuser against Bill Cosby,” he said. “Now you have a pattern of multiple women.”
Cosby lawyer Tom Mesereau said he wants to make Cosby’s settlement with Constand a focal point of the retrial. He said jurors will learn “just how greedy” she was when they hear details about how much money she demanded from Cosby and what the star wound up paying her.
Constand sued Cosby after prosecutors in 2005 declined to press charges. Cosby testified over a decade ago as part of that lawsuit, eventually settling for an undisclosed sum. His deposition was sealed for years until a judge released parts in 2015 at the request of The Associated Press, prompting a new set of prosecutors to take a fresh look at the case and charge him.
Mesereau argued the settlement ties directly to a claim from Constand’s former co-worker who said Constand spoke about fabricating sexual assault allegations against a celebrity so she could sue and get money.
Cosby’s old legal team agreed with prosecutors to keep the settlement out of his first trial.
Dennis McAndrews, who prosecuted chemical heir John E. duPont for murder in 1997, said the new strategy could backfire.
“That settlement cuts both ways,” said McAndrews. “If it was a large settlement, why did Cosby pay such a large settlement for something that he says didn’t happen?”
Cosby has pleaded not guilty to charges he assaulted Constand, a Temple University women’s basketball administrator, while he was a powerful alumnus and trustee. He has said the encounter was consensual. He remains free on bail.
Pennsylvania allows prosecutors to present evidence of alleged past misdeeds if they demonstrate the defendant engaged in a signature pattern of crime. Prosecutors argue Cosby used his power and appeal as a beloved entertainer to befriend younger women, then plied them with drugs or alcohol before assaulting them.
If additional accusers are allowed to testify, Zuckerman said, the jury would be instructed to consider the testimony only as possible evidence of Cosby’s pattern of behavior — not conduct that they should punish him for. But, he said, all that testimony is sure to carry an emotional wallop that could push jurors to convict.
The Associated Press does not typically identify people who say they are victims of sexual assault unless they grant permission, which Constand and Dickinson have done.