Cosby Lawyers: #MeToo Moment Makes a Fair Trial Difficult

NORRISTOWN, Pa. — The #MeToo movement is making it tougher for Bill Cosby to get a fair trial, his lawyers asserted Tuesday, as they fought in a pretrial hearing here to prevent 19 additional accusers from testifying at his retrial on sexual assault charges.

Prosecutors say the 19 accounts would establish a pattern of predatory conduct by Cosby, 80, and help fend off defense attacks on the credibility of Andrea Constand, whose accusation that Cosby drugged and assaulted her in 2004 is the only one to lead to criminal charges. Cosby has said that the episode, which occurred at his home near here, was consensual.

“This is a 40-year, continuous pattern,” said Adrienne Jappe, an assistant district attorney in Montgomery County, where the retrial will take place.

But defense lawyers said allowing more accusers onto the stand would distract the jurors from the case at the heart of the trial. Becky S. James, one of Cosby’s lawyers, said in the pretrial hearing, “Letting in multiple mini-trials, which this would be, would end up dominating.”

“One is too many,” she said, “and 19 is far, far too many.” She noted that Cosby would be at a disadvantage battling accounts that depict events said to have occurred decades ago. “These are just ancient accusations,” she said.

But prosecutors said that each accuser’s credibility was an issue for the jury to consider and that limiting the testimony would reduce their ability to show a predatory pattern.

The defense team said the #MeToo movement had nothing to do with Cosby. Some experts, however, say #MeToo may change how people view the accusers’ credibility, and the Cosby case may be the first significant test of how a jury might be affected at trial.

Since Cosby’s first trial ended in a hung jury in June, many powerful men — starting with Harvey Weinstein in October — have faced public accusations of sexual assault. Three years earlier, Cosby experienced his own rush of accusations that he had hidden a history of mistreating women behind his comforting role as “America’s Dad.”

More than 50 women have accused Cosby — once a beloved entertainer — of drugging and sexually assaulting them. During the last trial, prosecutors sought permission for 13 more women to testify in addition to Constand, but Judge Steven T. O’Neill allowed only one more to tell her story. He did not explain his reasoning then or indicate Tuesday when he might rule on the question for the retrial.

Ordinarily, prosecutors cannot introduce evidence or accusations of prior bad behavior because such evidence is viewed as too prejudicial for a jury as it considers the facts of the single case before it. At the last trial, prosecutors relied on an exception that permits such evidence when it shows conduct so similar it can be argued that it demonstrates a common scheme or plan, a kind of unique signature of the defendant.

For the retrial, prosecutors are also relying on a new argument, the “doctrine of chances,” which essentially argues that the more times an event takes place, the less plausible it becomes that it happened by mistake.

Prosecutors and Cosby’s lawyers tussled over what parts of a civil case that Constand brought against him in 2005 could be referred to at trial. That lawsuit ended with a financial settlement and a confidentiality agreement, and the lawyers bickered over what details from those matters and the accompanying negotiations should be admitted.

And the two sides argued over whether Cosby’s team would be able to call as a witness Marguerite Jackson, a student adviser at Temple University, where Constand was employed when the episode with Cosby occurred. Jackson has said that years ago Constand told her that she had been drugged and assaulted by a famous person, then later said it had not happened, but that making such a complaint could result in a valuable lawsuit settlement.

Cosby’s lawyers said they intended to include Jackson in their opening statement at trial. Prosecutors have objected to her testimony on several grounds, including the contention that it constitutes hearsay. O’Neill did not allow her to testify at the first trial.

The judge said he might wait until the trial, on April 2, to decide both issues. He said no one could really say whether the #MeToo movement had already influenced the potential jury pool. But he said that a wide sampling of potential jurors had been sent some 3,500 notices and questionnaires as part of the effort to begin the jury selection process.