Days after deep-sixing Donald Trump’s latest lunge to overturn the 2020 presidential election, Pennsylvania’s Supreme Court on Tuesday took up Bill Cosby’s Hail Mary appeal of his 2018 rape conviction.
With some minor technical glitches, this morning’s about 80-minute virtual hearing came down to prior bad acts, invoking 5th amendment rights, and a 2005 press release from the prior D.A. of the Keystone State’s Montgomery County.
In a gathering that saw the likes of brisk Chief Justice Thomas Saylor staring off camera at times, the hearing started with defense attorney Jennifer Bonjean ripping into the current Montgomery County D.A.’s office for its successful prosecution two years ago of the now-imprisoned Cosby for sexually assaulting Andrea Constand.
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Her much accused client “never had a fair shot,” Bonjean declared, with emphasis on trial judge Steven O’Neill permitting five other women to take the stand in the case and tell their tales of being allegedly drugged and attacked by Cosby. “A trial on a single offense was converted into a trial on his character,” the attorney said.
That statement seemed to register to some significant degree with Justice Max Baer, who saw the inclusion of the other women as witnesses potentially “extraordinarily prejudicial.”
Assistant D.A. Adrienne Jappe painted a different canvas for the court in her stint before the cameras. “You don’t consider one prior bad act in isolation,” she noted. “This shows that there was a recurring sequence of acts by the defendant,” Jappe added in response to questions from the bench. “The case law makes clear that you must consider them all in relation to each other.”
Following Jappe before the justices, ADA Robert Fallin disputed the defense’s long-held contention that it had an ironclad deal in 2005 with former Montgomery County D.A. Bruce Castor to avoid criminal prosecution if Cosby testified in a civil action, which he did.
Since Cosby was first arrested in 2015 just before Pennsylvania’s statute of limitations on sex crimes expired, the actor has pointed to a press release Castor put out on the matter and the so-called secret deal.
However, Fallin today drew the court’s attention to a line in that release that may prove damning to aspects of the appeal effort. “District Attorney Castor cautions all parties to this matter that he will reconsider this decision should the need arise,” Fallin read out on camera. “It’s really Prosecution 101 that you don’t close cases,” he asserted.
Sentenced to up to 10 years in 2018 and now behind bars at Pennsylvania’s State Correctional Institution at Phoenix, the legally blind 83-year-old Cosby was not present via video or audio for today’s hearing. As the justices peppered both Bonjean, Jappe and Fallin with mainly finer points of the law today, the court is not expected to deliver a decision for at least three months.
Having agreed back in June to hear the appeal, if the Pennsylvania Supreme Court finds in favor of Cosby, the man once called America’s Dad could see his 2018 conviction reversed. If that occurs, Cosby would likely get a new trial, his third at this point.
Even though Cosby actually admitted in his 2005 depositions to giving former Temple University employee Constand several Benadryl pills on the night of the alleged assault in his Philadelphia-area mansion in 2004, the actor has steadfastly insisted through various investigations, two trials and the sentencing hearing that the encounter was consensual.
After striking out in every other venue over the years with appeals, defense lawyer Bonjean’s performance today at least won the approval of her client.
“This morning, people around the world witnessed a beautiful presentation by Attorney Jennifer Bonjean regarding two (2) important issues — Immunity & the misuse of a law called, 404 (b) or PBAs (Prior Bad Acts Witnesses),” Cosby said in a statement issued not long after the hearing concluded. “I’m so happy because I hope and truly believe that justice will prevail.”
In that context, more than 60 women have claimed that Cosby drugged and assaulted them over the decades with a similar combo of pills and alcohol that Constand claims was used on her. Unlike many of those women, some of whom were among the onlookers at the two trials and the sentencing hearing in the fall of 2018, Cosby paid Constand millions in a once-confidential settlement about 10 years before the criminal case was opened five years ago.
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