December 1, 2020
Maria Puente
USA Today

The Pennsylvania Supreme Court heard conflicting arguments at a virtual hearing on Tuesday about whether Bill Cosby was fairly convicted of sex crimes in 2018, but many of the seven justices seemed doubtful of the prosecution's assertions.
The high court heard oral arguments from Cosby's appellate lawyer, Jennifer Bonjean, and from two prosecutors from the office of District Attorney Kevin Steele of Montgomery County, Pennsylvania, about whether Cosby's 2018 trial was flawed by evidence and testimony that should have been excluded, and thus should be thrown out.
The court is not expected to issue a ruling for some months.
Cosby was convicted in April 2018 on three counts of aggravated sexual assault of his former friend, Andrea Constand, in 2004, and is serving a three-to-10-year sentence in a state prison.
The oral arguments hearing on Cosby's appeal, which was livestreamed on YouTube due to the coronavirus pandemic, was narrowly focused on two issues:
Was the trial judge's decision to allow other accusers to testify about alleged, uncharged "prior bad acts" by Cosby so prejudicial as to deprive him of a fair trial?
And did another decision by the trial judge deprive Cosby of his constitutional right against self-incrimination? By allowing testimony about a civil deposition Cosby gave after he said he was promised by an earlier county district attorney that he would not be prosecuted, was Cosby thus induced to make self-incriminating statements later used against him at the trial?
Bonjean argued that allowing five other women to testify to alleged acts by Cosby dating back decades forced Cosby to defend against "five mini trials," while providing no useful "probative" information as required by law.
She said a defendant in an American criminal court "must be tried for what he did and not for who he is," but prosecutors "made no secret" they intended to present Cosby to the jury as a defendant who had a "propensity" for drugging and raping women.
"None of the prior bad acts testimony served a legitimate non-propensity purpose," she said. "A trial on a single offense was converted into a trial on his character."
Justice Max Baer said he tended to agree that such evidence could be "extraordinarily prejudicial," and wondered how many such witnesses are too many, and how old is too old.
Justice Christine Donohue said prior bad acts testimony is often used to establish identity of a perpetrator, but identity was never at issue in the Cosby case.
"When identity is not in dispute, (such evidence) registers with the jury as propensity evidence," Donohue said. "The prosecution is asking the court to sanction propensity evidence."
Other justices, including Chief Justice Sam Taylor, later quizzed Deputy District Attorney Adrienne Jappe on why prosecutors even needed prior bad acts witnesses if they already had Constand and other witnesses to testify.
Jappe said prosecutors needed to corroborate Constand's testimony that she did not consent to being drugged or molested by Cosby.
Jappe cited multiple cases in Pennsylvania when courts allowed such testimony in cases involving different kinds of serious crimes, arguing that such evidence is necessary to demonstrate a "pattern" of behavior by a defendant. But several justices raised questions about whether the details of the other accusers' stories matched that well with Constand's story.
When Jappe said they needed the other accusers' testimony because prosecutors knew Cosby's legal team would "relentlessly and cruelly" attack Constand at the trial, Taylor said her response was off the subject of his question, cut her off and moved on to the issue of the deposition.
On that, Bonjean said it should never have been allowed at the trial because Cosby "relied" on the previous district attorney's promise not to prosecute if he agreed to sit for a deposition in 2006 - and not invoke his 5th Amendment rights - in a civil suit Constand filed against him.
"The fact that he sat for a deposition for four days leads to a reasonable inference that he believed he had to do this in order to not be prosecuted: This was the agreement and he complied with it," on advice of his then-legal team, Bonjean said.
Deputy District Attorney Robert Falin, who argued the deposition issue before the court, said there is no written record of this "promise" Cosby received from a predecessor district attorney, only a press release. (Cosby's lawyer at the time is now dead.)
But, Falin said, the same press release also says the prosecutor reserved the right to reconsider a prosecution of Cosby on Constand's accusation if new evidence was discovered.
"Prosecutors never just say they will never prosecute just for the sake of (cooperation in) a civil case, ," Falin said. "No (defendant) should rely on a press release for transactional immunity...That is not fair to the commonwealth and unreasonable for defendant to expect."
Cosby, 83, was not at the hearing nor did he have access to it at the state prison near his home in the suburbs of Philadelphia. His spokesman, Andrew Wyatt, told USA TODAY Cosby would not be able to see it since he's blind.
In a statement to USA TODAY, Cosby called Bonjean's presentation at the court "beautiful."
"This was not just an historic day for me, but it became a beacon of hope for those countless American citizens of the Keystone State in Pennsylvania Correctional Facilities, whose constitutional rights might have been grossly abused because they lacked resources and means to fight prosecutorial corruption," the Cosby statement said. "I’m so happy because I hope and truly believe that justice will prevail."
For Cosby and his legal team, the hearing was crucial as a chance to press for a reversal of his conviction after a second trial (his first trial the year before ended in a hung jury) before Montgomery County Judge Steven O'Neill.
If the Supreme Court decides the trial was flawed in some serious way, it could potentially justify reversing his conviction and ordering a new trial.
When the high court accepted Cosby's appeal in June, it was a major surprise: A state appellate court had already turned him down in full, with all of his many objections rejected. Most legal observers, including Cosby's prosecutors, expected the same fate for Cosby's appeal at the Pennsylvania Supreme Court.
But the confused state of rulings on the use of prior bad acts testimony in other cases may be one of the reasons the state high court accepted Cosby's appeal: as a means of clearing up the question – at least in Pennsylvania – about when and what juries can hear about a defendant's alleged past acts.
Such testimony is already a feature of some #MeToo criminal trials, raising questions, at least among criminal defense attorneys, about whether expansive use of such testimony violates a defendant's right to the presumption of innocence.
Cosby was found guilty of three counts of aggravated sexual assault of Constand, a former Temple University staffer, in 2004 at his home in the suburbs of Philadelphia. She accused him of drugging her and molesting her when she was incapacitated.
Steele, who was elected district attorney in 2015 after a campaign in which he promised to prosecute Cosby in the then decade-old case, filed charges against him in December 2015, just a few weeks before he would have been barred under Pennsylvania's statute of limitations.
Cosby's first trial before Judge O'Neill took place in June 2017 and ended with a mistrial after the jury failed to reach a unanimous verdict. The second trial followed 10 months later, with the most significant difference being the number of prior-bad-acts accusers: In the first trial, O'Neill allowed only one other accuser to testify; in the second he allowed five.

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