Bill Cosby goes back to court in April, but his retrial on sexual assault charges will unfold in a very different America than his first.
Since then, the #MeToo movement has established that women who individually once feared their accusations would be discounted or dismissed can find corroboration and power when they come forward as a group.
Though more than 50 women have accused Mr. Cosby, once among America’s most beloved entertainers, of drugging and sexually assaulting them, only two were permitted to to tell their stories in a Pennsylvania court in the first trial, which ended last summer with a hung jury.
But prosecutors on Thursday asked the judge handling the case to reconsider his limits on such testimony in the hope that the accounts of 18 more women would help support the accusations by Andrea Constand, the former Temple University staff member who says Mr. Cosby assaulted her at his home outside Philadelphia in 2004.
It is unclear how Judge Steven T. O’Neill will rule on this request, but it is near axiomatic that if the jury, still processing the recent unmasking of so many men as sexual predators, is able to hear the multiple accounts, Mr. Cosby’s prospects at trial will dim.
“This is playing out in a different era,” said Deborah Tuerkheimer, a law professor at Northwestern University. “How we judge credibility may have shifted culturally. We now realize women are not generally lying when they speak about sexual violence. That would definitely be a big deal, if the default was no longer to doubt when women come forward.”
The American judicial system is not supposed to sway with the political winds, and Judge O’Neill of the Montgomery County Court of Common Pleas in Norristown, has shown himself to be a resolute and measured jurist who legal colleagues suggest will lock in on the law involved, and remain unaffected by events outside his courtroom.
There has long been a debate on just how much judges are, or should be, swayed by public opinion. Justice Stephen G. Breyer of the United States Supreme Court said that listening to public opinion is “a road to perdition” for judges.
“We’re not there to be popular,” he added in a video that was posted on a public policy website, bigthink.com “We’re not there to decide according to the majority; we’re not there to decide according to what the press is going to write.”
Others, such as the Harvard law professor Michael Klarman have argued that certain landmark rulings like Brown v. Board of Education would never have been possible if judges had not been reflecting shifting social mores.
In some ways, Mr. Cosby paved the way for the #MeToo moment as he battled accusations for years that he had hidden a history of mistreating women behind his comforting pose as America’s Dad.
Last week he acknowledged the ubiquity of the #MeToo moment — though not his place in it — during an appearance with publicists at an Italian restaurant in Philadelphia.
After shaking a reporter’s hand, according to the Philadelphia Inquirer, he said, “Please, don’t put me on #MeToo.”
A spokesman for Mr. Cosby declined to comment on the motion filed Thursday and on any possible effect the #MeToo moment may have on the trial. But it’s clear that his lawyers will argue strenuously, as they did last time, against the inclusion of additional accusers — this time probably suggesting that the potential prejudicial effect has only worsened with the recent downfall of so many men.
“This is the #MeToo moment of the Cosby trial,” said Lynne M. Abraham, a former Philadelphia judge and prosecutor. “What the prosecutor is doing is saying all these people have come forward and the rules have changed.”
In a pretrial request last year, prosecutors asked Judge O’Neill to allow testimony from 13 other female accusers. The judge would only allow one of them to join Ms. Constand in testifying. On Thursday, the prosecutors, citing a fresh legal argument, asked him to reconsider and allow testimony from all those women, plus accounts from six more.
Ordinarily, prosecutors cannot introduce evidence or accusations of prior bad behavior from other cases because a jury is supposed to focus on the facts of the case before it. But Pennsylvania, like other states, allows for corroboratory statements if they show intent or conduct so similar it can be argued that it demonstrates a common scheme or plan, a kind of unique signature of the defendant. In this case, prosecutors say the various accounts match Ms. Constand’s in that all the women say they too were given an incapacitating substance and then assaulted.
During the first trial, the defense hammered at Ms. Constand’s credibility and argued the sex had been consensual. The other woman who testified, Kelly Johnson, said Mr. Cosby had attacked her in a hotel bungalow in Los Angeles in 1996 after having her swallow a large white pill, but she seemed hesitant on the stand.
Once deliberations began, jurors asked for a definition of several terms like “unconscious” as they sought to parse Ms. Constand’s testimony, in which she said she had woken intermittently during what she called Mr. Cosby’s assault.
Prosecutors seemed to take note of that issue Thursday as they argued for the introduction of additional witness testimony, saying it would “establish that an individual who, over the course of decades, intentionally intoxicated women in a signature fashion and then sexually assaulted them while they were incapacitated, could not have been mistaken about whether or not Ms. Constand was conscious enough to consent to the sexual contact.”
Kevin R. Steele, the Montgomery County district attorney also pointed in the filing to a recent appellate ruling in Pennsylvania that cited the “doctrine of chances,” which holds that as the number of victims reporting a crime increases, the likelihood that a suspect’s conduct was unintentional decreases. It is “extraordinarily improbable,” he argued, that 20 women would fabricate reports of drug-facilitated assaults.
Experts said the new argument could allow Judge O’Neill to revisit his decision to exclude most of the women. The judge never disclosed his reasoning and so would not be bound by the need to be consistent with his earlier ruling.
Valerie Hans, a professor at Cornell Law School who studies juror behavior, said the tenor of the times could certainly make Mr. Cosby’s defense more complicated.
“The #Metoo movement,” she said in an interview by email, “and the highly visible cases that are similar to Cosby (powerful men, similar patterns of behavior, multiple victims) make the environment one that is more supportive of the prosecution’s case.”
In addition, she said that since Judge O’Neill had presided over a mistrial, he may be more open to allowing additional testimony from women that more convincingly shows a pattern of conduct.
But Ms. Abraham said Judge O’Neill would be unlikely to reverse himself and allow more testimony, especially since the defense could argue that in adding so many witnesses, he had prejudiced the case. “I think he is going to be wary,” she said.
Patrick Egan, a politics professor at New York University who is an expert on public opinion, said it is only logical to understand that judges, like everyone else, may be affected by society-wide discussions on topics like sexual harassment.
“I think it would be really quite impossible for any American to be walking around and not somehow exposed to this debate and thinking about it and perhaps thinking about it in new ways that they weren’t exposed to before,” Professor Egan said, adding: “Judges inhabit the same world ordinary humans do.”
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