Opinion

Opinion

Is Cosby trial already a done deal?

Posted June 5

Bill Cosby arrived today for his trial in Montgomery County, Pennsylvania, on three counts of felony aggravated indecent assault. He was accompanied by his "daughter" as he walked into court.

Not his actual, biological daughter. Keshia Knight Pulliam, 38, who played Rudy Huxtable on "The Cosby Show," walked with the comedian into the courthouse.

Bringing the 80s-adorable Rudy Huxtable with him, all grown up, isn't likely to do any harm, however, and frankly it may not matter how anyone perceives the image of them walking arm-in-arm. That's because it's likely that the outcome of this trial has already been decided -- by the hard-fought pretrial motions, which were settled back in February by Judge Steven T. O'Neill.

Judge O'Neill decided that, of the 13 other accusers that the prosecution wanted to testify against Cosby, only one would be allowed. This was a big victory for the defense, because it will dramatically limit what the jury will hear and be able to consider about Cosby's much-discussed, alleged past behavior with women.

Evidence of prior bad things a defendant has done -- bad "character evidence"-- is usually not admissible to show that a person did the bad thing for which he is on trial.

In this case, however, the prosecution sought to admit testimony of all these other women -- alleged crimes that he would never, ever be prosecuted for either lack of evidence or the elapsing of the statute of limitations -- as evidence against Cosby under a different rule. It's called "404(b)" evidence, and can be a devastating tactic, a prosecutorial thumb to the scales of justice.

The prosecution argued -- unsuccessfully -- that it wanted to hear from Cosby's other accusers not to prove whether or not he assaulted Constand but to show that his alleged modus operandi was to get women drunk or high and allegedly have sex with them, as he is accused of doing to Constand.

Can you imagine if this evidence had come in? Over a dozen witnesses testifying about similar incidents with Cosby? Jurors don't make distinctions between 404(b) evidence and improper criminal character evidence. Heck, I'm a defense lawyer and sometimes I don't get the distinction. Who wouldn't convict Cosby after a parade of similar stories? As it is, just one witness testifying as to the similarity of one prior alleged assault may be the prosecution's strongest piece of evidence; evidence that is unproven, uncharged, and unrelated to the alleged crime.

Although Judge O'Neill didn't provide much explanation for his order, the alleged assaults of the 12 excluded females allegedly occurred in the 1970s and 1980s. The accusation that has been admitted, from a woman known in the proceedings as prior alleged victim number six, happened closer in time, in 1996 -- when she claims that Cosby gave her a pill and violated her sexually. Her story still had to be similar and not overly prejudicial, in the judge's opinion, in order for it to be allowed in.

When police investigate sex crimes, the first thing they don't do is ask: "what was this suspect doing ten years ago (somewhere) across the country?" Police first investigate the victim's specific allegations. It's prosecutors that mostly compile 404(b) evidence -- after the case is charged, after they've already decided that the defendant is guilty, and specifically to "pile on" the evidence. And the prosecution doesn't track down prior bad-acts evidence in all cases; they definitely don't seek it when there's surveillance video of an assault and a busload of eyewitnesses. They don't need it in an airtight case. Almost by definition, 404(b) evidence comes in when the prosecution is just a little bit nervous about its case. That's why it always feels inherently unfair; it seems to violate the fundamental notion that we should only be forced to defend the charged crimes -- not everything we've ever done wrong in life.

As such, Cosby's defense attorneys won the battle that may have already decided the war. In the end, all it really means is that the prosecution's case largely has to stand on its own -- with a little help from one prior bad-act witness. Ultimately, it's hard to say how a jury might take in this prior bad-act evidence. After all, they may think, if Rudy Huxtable is still supporting him in the courtroom, how bad can Dr. Huxtable be?

A previous version of this article incorrectly indicated that the members of the jury are from Philadelphia. Jury selection took place at Allegheny County Courthouse in Pittsburgh.

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