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Bill Cosby's appeal could dictate how trials in the #MeToo era are conducted going forward

All eyes are on Bill Cosby’s upcoming appeal in the Pennsylvania Supreme Court as it prepares to review his 2018 conviction for sexual assault.

This month marks two years since Cosby, 83, was put behind bars over a 2004 encounter with Andrea Constand, a former professional basketball player who worked for his alma mater, Temple University, in Philadelphia, Pa. He has another year to go before he can seek parole. However, he has vowed to serve the full 10-year maximum rather than show remorse for what he calls a consensual encounter.

The comedian was convicted of three counts of felony sexual assault based on charges that he drugged and molested Constand after she came to his house for career advice. The five other accusers who testified for the prosecution said they believed he also drugged and sexually assaulted them in the 1980s.

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Cosby was the first celebrity to go on trial in the #MeToo era, and his appeal could resolve lingering questions about how such cases should be tried. For starters, the high court will try to clarify when other accusers can testify against a defendant — and when the additional testimony amounts to character assassination.

Bill Cosby's appeal is coming up in a Philadelphia court.

Bill Cosby’s appeal is coming up in a Philadelphia court.
(AP Photo/Matt Rourke)

Public defenders in Philadelphia, in a friend-of-the-court brief filed in Cosby’s appeal, noted that courts have given conflicting guidance on the issue.

“Courts repeatedly fail to analyze how uncharged misconduct is relevant to prove, for example, intent or identity,” the Defender Association of Philadelphia wrote in the amicus brief, one of several filed in the case this past month.

They say the testimony should only be allowed if it’s linked to a single crime scheme, to avoid “the genuine risk that defendants will be convicted for who they are, or for what they may or may not have done before.”

Prosecutors, in a brief filed late Monday, offered several legal justifications for the accusers’ testimony, hoping at least one of them will stick. They said it’s needed to show Cosby’s pattern of behavior, to show the encounter wasn’t a one-time mistake, and to show the complaint wasn’t filed on a whim.

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“It is unusual, to say the least, that defendant has been repeatedly … accused of engaging in sexual conduct with unconscious or otherwise incapacitated young women … without any consequences,” the Montgomery County District Attorney’s Office wrote in their response to Cosby’s appeal.

Cosby won a shot at reversing his conviction earlier this year when the state Supreme Court agreed to review two central trial issues: the other accuser testimony and Cosby’s claim that a former prosecutor had promised he could never be charged in the case.

Cosby’s lawyers said they relied on that promise when they let him testify in a civil suit that Constand filed in 2005, shortly after the suburban Philadelphia prosecutor declined to arrest Cosby. A successor, Montgomery County District Attorney Kevin Steele, arrested Cosby a decade later after the comedian’s damaging deposition from the lawsuit was unsealed.

Bill Cosby departs after a sentencing hearing at the Montgomery County Courthouse in Norristown, Pa. Cosby’s trial judge is rejecting the actor's bid for a new trial or sentencing hearing and directing him to file any appeals with the state Superior Court. Cosby is serving a three- to 10-year state prison term after a jury this year convicted him of drugging and molesting a woman at his home in 2004. 

Bill Cosby departs after a sentencing hearing at the Montgomery County Courthouse in Norristown, Pa. Cosby’s trial judge is rejecting the actor’s bid for a new trial or sentencing hearing and directing him to file any appeals with the state Superior Court. Cosby is serving a three- to 10-year state prison term after a jury this year convicted him of drugging and molesting a woman at his home in 2004. 
(AP Photo/Matt Slocum, File)

The Pennsylvania Attorney General’s Office, in a brief in support of Steele, said the Cosby camp’s decision to rely on an unwritten promise before he testified in such “a grave matter…was unreasonable.”

The Supreme Court has not yet set a date for oral arguments. Other groups filing legal briefs in the appeal include the Rape, Abuse & Incest National Network, known as RAINN; the Pennsylvania Association of Criminal Defense Lawyers; and the Pennsylvania District Attorneys Association.

Pennsylvania case law suggests that judges should carefully thread the needle when it comes to testimony about “prior bad acts,” allowing it only for a few specific reasons, such as to show a “signature” crime pattern.

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Cosby’s trial judge, Montgomery County Judge Steven O’Neill, said their testimony did just that, even if it occurred a decade or two before Constand’s encounter.

The Associated Press contributed to this report.

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