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Key question in Cosby appeal: Does defendant’s past matter?

Maryclaire Dale
Associated Press

Philadelphia — In 2016, as Bill Cosby’s legal team prepared for trial in his stunning sexual assault case in Pennsylvania, the state Supreme Court quietly heard a death row inmate’s appeal.

Lawyers for Charles Hicks questioned whether three women who said he had beaten and choked them in Texas should have testified at his trial in a fourth woman’s death in the Pocono Mountains.

Prosecutors hoped to show a pattern of “strikingly similar” conduct, even if only one woman died. The seven Supreme Court justices issued five separate opinions on the use of the “prior bad act” testimony.

In this Sept. 25, 2018, file photo, Bill Cosby arrives for a sentencing hearing following his sexual assault conviction at the Montgomery County Courthouse in Norristown Pa.

That may explain why they are hearing Cosby’s appeal of his conviction on Tuesday.

In taking the case, the justices appear eager to clear up the law on one of the murkiest questions plaguing criminal trials: When should a jury hear about someone’s past?

Investigators say it can be crucial to show a signature crime pattern, but defense lawyers say it often amounts to character assassination.

The debate has been central to the high-profile prosecutions of actor and comedian Cosby, movie mogul Harvey Weinstein and a Roman Catholic Church official in Philadelphia charged with protecting predator priests. But it also comes into play for lesser-known people like Hicks, who remains on Pennsylvania’s death row.

“The issue is really intriguing because it forces defendants to spend time fighting shadows of uncharged, sometimes unrelated accusations that never really became formal criminal charges,” said Philadelphia defense lawyer William J. Brennan, who was involved in the church trial. “It’s very distracting. You should focus on what you’re criminally charged with.”

Cosby has long complained that Montgomery County Judge Steven T. O’Neill let five other accusers testify at his 2018 retrial, when he became the first celebrity convicted of sexual assault in the #MeToo era. His lawyers, and his wife, Camille, have called the women gold diggers and their testimony lies.

But District Attorney Kevin Steele believes the similarities in their accounts were no mere coincidence.

“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,” his office wrote in a Supreme Court brief this year.

Cosby, 83, has spent more than two years in prison since he was convicted of drugging and sexually assaulting Andrea Constand, a Temple University employee he had taken under his wing, at his suburban Philadelphia estate in 2004.

By the time her case went to trial in 2017, after a judge unsealed Cosby’s long-buried testimony in her 2005 sexual battery lawsuit, dozens of women had come forward to say the star of “The Cosby Show” had mentored and then betrayed them.

O’Neill allowed just one of them to testify at the first trial, in which the jury could not reach a verdict.

But the following year, at the 2018 retrial, the judge let five other accusers take the stand to describe encounters with Cosby in the 1980s. Each believed they had been drugged and sexually assaulted.

The Cosby appeal could decide whether courts allow the expansive use of “prior bad act” witnesses that many judges have adopted in recent years or rein it in to preserve the presumption of innocence.

The testimony is often referred to as “404(b) evidence,” a reference to the legal rule that governs it.

“I think the Supreme Court probably wants to tighten up some of the 404(b) issues that certainly are ripe for tightening,” said Brennan, who sat through weeks of testimony from priest-abuse victims in the 2012 church trial. “It pollutes the air for the jury.”

Cosby does not have the right to attend the appellate arguments

The Supreme Court is not expected to rule for several months.