Bill Cosby's effort to erase his conviction for sexual assault goes before a Pennsylvania appellate panel Monday for a hearing expected to focus on whether the trial judge made prejudicial errors or properly allowed testimony about Cosby's "decades-long pattern" of sexual misconduct.
There is a lot riding on this hearing for Cosby: Under Pennsylvania law, the only guaranteed appeal venue for a defendant is with the Pennsylvania Superior Court in the state capital of Harrisburg.
The hearing will be before a three-judge panel and it could be short: Typically, each side gets about 15 minutes to make its case – but that counts the questions the judges may ask. Interruptions can be expected, shortening even more the time each side has to argue.
Cosby, 82, will be represented by his appellate team, Kristen Weisenburger and Barbara Zemlock, according to his spokesman, Andrew Wyatt.
The Commonwealth, specifically Montgomery County District Attorney Kevin Steele, will be represented by Robert Falin, chief of the district attorney's appellate unit.
The judges will not issue a decision that day, and there is no telling when they will.
If the decision goes against Cosby – meaning the three-count guilty verdict and the three-to-10 year sentence is affirmed – then Cosby stays in his prison cell near Philadelphia and his lawyers can try to persuade the Pennsylvania Supreme Court to hear his appeal.
But the high court doesn't have to take the case and there is no guarantee it will.
The stakes also are high for the prosecution side, which includes #MeToo movement and anti-rape activists, who hailed Cosby's conviction as retribution for the five-dozen other women who have accused him of sexual misconduct dating back to the mid-1960s. The Rape, Abuse & Incest National Network (RAINN) filed a friend-of-the-court brief supporting the conviction.
The Cosby case is frequently referred to as the first celebrity trial of the #MeToo era: Although his first trial in June 2017 took place before the movement surged in November 2017, his second trial took place nearly a year later.
But in fact, so far Cosby is the only celebrity convicted post-MeToo: the New York sexual assault case against fallen Hollywood mogul Harvey Weinstein is still pending, as are four sets of sex-crime charges in three states against R&B star R. Kelly. And the Massachusetts groping case against Oscar winner Kevin Spacey collapsed last month.
The Cosby appeal, however, will focus on something more nuts-and-bolts legalistic, one that comes up in scores of non-celebrity criminal cases: Was his trial in Montgomery County, Pennsylvania, conducted properly or were there mistakes that produced an unfair result that should be overturned?
To recap: Cosby was convicted in April 2018 (his first trial ended in a hung jury) of three counts of drugging and molesting former Temple University employee Andrea Constand at his suburban Philadelphia home in 2004. He was sentenced in September and has been locked up in a state prison ever since, despite repeated efforts to be released while his case is on appeal.
Cosby says his encounters with Constand and with other accusers were consensual.
His appellate brief features a litany of alleged errors by trial Judge Steven O'Neill, who also presided over his first trial. Perhaps the most important: O'Neill allowed five other accusers to testify about separate and uncharged crimes they say Cosby committed against them in the past, to establish a pattern of "prior bad acts" to bolster Constand's accusations.
O'Neill, who allowed only one such accuser to testify at the first trial, also filed a brief with the appellate court in which he argued, through case law and precedent, that none of the "errors" Cosby alleged were actually errors. In an earlier opinion, he wrote that he allowed the five other accusers to testify because their accounts had "chilling similarities" that pointed to a "signature" crime.
Prior-bad-acts witnesses could be increasingly crucial in other sex-crime cases and in other states where they are allowed, as long as their probative value outweighs their prejudicial effect.
Cosby's lawyers quote case law in arguing that such testimony was "extraordinarily prejudicial," to the point that it "predisposed" jurors to believe he was guilty, thus effectively stripping him of the presumption of innocence.
In the Commonwealth's appellate brief, prosecutors echoed O'Neill's argument that such testimony is permissible under Pennsylvania law when it demonstrates a "signature" crime.
"There was no coincidence here. To the contrary, defendant's drug-facilitated sexual assault of Constand was the culmination of a decades-long pattern of behavior evidenced by his prior bad acts towards the five witnesses sufficiently 'distinctive and so nearly identical as to become the signature of the same perpetrator,' " the prosecutors wrote, quoting from case law on the issue.
Cosby's appeal also raises other issues about his trial, such as his argument that he should never have been prosecuted because of a binding agreement with a previous district attorney in 2005 that he would never be charged in the Constand case because of insufficient evidence.
He argues that O'Neill should have recused himself from the Constand case because his supposed "political feud" with former district attorney Bruce Castor meant O'Neill was "biased" against Castor when he testified as a defense witness at a pretrial hearing.
And Cosby also challenged O'Neill's decision to allow his testimony from a 2005 deposition to be introduced at the trials, in which Cosby acknowledged acquiring quaaludes in the 1970s to give to other women before sex.
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https://www.usatoday.com/story/entertainment/celebrities/2019/08/12/bill-cosbys-appeal-his-sex-crime-conviction-crucial-hearing/1958562001/
2019-08-12 10:00:00Z
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