In a move that would set up a dramatic courtroom showdown between Bill Cosby and his accusers, 13 women who say the entertainer sexually assaulted them could be allowed to take the stand against him in a criminal trial.
Cosby has been charged with three counts of sexual assault stemming from a 2004 encounter with former Temple University basketball player Andrea Constand. But hours before a pretrial conference Tuesday, Montgomery County Dist. Atty. Kevin Steele, who is trying the case, filed a motion that would seek to have 13 additional women testify to establish Cosby’s alleged pattern of conduct.
Steele has not named the alleged victims, though he has informed the defense of their identities.
“We spent a lot of time talking to people all over the country and outside the country,” Steele told reporters. “They have indicated they are willing to testify.”
Outside the courthouse, lead defense attorneys Brian McMonagle and Angela Agrusa said that the issue of civil rights cut both ways and that the prosecution of Cosby amounted to discriminatory treatment.
The judge, Steven T. O’Neill, said at the pretrial conference he would consider Steele’s request at a future hearing. He also set a trial date of June 5. O’Neill said he’d like the trial to begin sooner, but was accommodating both a series of pretrial admissibility hearings as well as McMonagle’s busy schedule on other cases. The judge said he would “work aggressively” to facilitate an earlier date.
The case centers on whether Constand, under the influence of wine and pills, gave Cosby consent before he digitally penetrated her at his home in Cheltenham, Pa.
Though witnesses from unrelated incidents are not often allowed to testify at a criminal trial, Steele is seeking to call the women under Pennsylvania’s Evidence of Prior Bad Acts rule, which allows for such testimony if it demonstrates a “pertinent trait” on the defendant’s part.
“An individual who, over the course of decades, intentionally intoxicates women in a singular fashion with the intention of sexually assaulting them cannot also be mistaken about whether or not those women are consenting to the sexual abuse,” the motion said.
The defense is likely to argue that the accounts of those women are not relevant to the case at hand, especially since the statute of limitations is likely to have expired on all of them, and could prejudice the jury.
The number of women who’ve stepped forward to say Cosby assaulted them has now reached 60, by many estimates, with most of the incidents past the statute of limitations. It is unclear how many of the remaining women were not deemed necessary by the prosecution for its case versus those who simply did not want to take the stand.
Many of the women who’ve gone public described a similar narrative of unwanted sexual contact after promises of career advancement or other benefits; in a large number of cases the women have reported feeling drugged after the interaction.
If the Evidence of Prior Bad Acts motion is granted, it would bring to a legal forum what until now has played out predominantly in the media. The women’s testimony is likely to be welcomed by victims’ groups: Long arguing that the Constand case amounts to a vicarious day in court for all of Cosby’s alleged victims, they would see in the testimony a more concrete realization of that hope.
Cosby’s defenders have said these accusations amount to a kind of vendetta against the comedian. The idea of 13 unrelated accusers taking the stand will certainly be used to buttress their argument.
Anticipating a media frenzy in the wake of the motion, O’Neill expressed doubts that an anonymous filing would remain that way if the witnesses’ names were revealed.
“I don’t know the names and right now I don’t need to know the names,” the judge said. But, he added, “the elephant is in the room. We now have 13 unnamed [alleged victims]. We have a courtroom full of the press. … I don’t know the identities can be protected.”
The motion lists details, often graphic, of the alleged encounters, beginning with the name “Prior Victim Number One” and going through all 13. Many of the specifics can be cross-referenced with published accounts.
Cosby, wearing a long seersucker jacket, was in court for the pretrial conference. He did not speak. But his voice could be heard on a recording of a 2004 phone call between himself and Constand’s mother, Gianna, in what became an at-times surreal debate involving Canadians and a parrot.
McMonagle argued that the recording should be suppressed because, while Canadian law allows for recording a conversation without all parties’ explicit permission, Pennsylvania law does not, and Pennsylvania has the overriding interest in this case. Cosby was in California and Gianna Constand in Canada when the conversation took place.
“It’s all nice and warm and fuzzy because it’s Canada,” said McMonagle. “But don’t make it Canada for a second. Make it Iraq or North Korea. Do we want Pennsylvania to apply the law of a foreign country?”
McMonagle also argued that Cosby did not know he was being recorded, because the comedian was not clear that a beeping sound signaled a recording device. Instead, Cosby thought, per his exchange with Gianna Constand, that the sound might be a parrot.
Steele said that Cosby had already waived his privacy rights because he knew he was being recorded and had only been joking about the parrot.
Later in the day the recording was played in court, offering a rare window into Cosby’s interactions with his accusers. On the recording, a negotiation of sorts could be heard between Cosby and Gianna Constand about how he would pay for her daughter’s education in a manner that would placate the alleged victim and her mother.
Cosby did not appear to be joking about the parrot — it was Gianna Constand who brought it up — and did not seem to know he was being recorded.
Still, the recording could be admissible if the judge determines that because it was made in Canada local law shouldn’t apply.
Also Tuesday, McMonagle said he aimed to file a change-of-venue request to move the trial elsewhere in Pennsylvania. The idea was met with skepticism by O’Neill, who cited the case’s national profile, which meant a jury anywhere would have access to the same information.
“Where would you go?” he asked.
4:30 p.m.: This article has been revised throughout for additional reporting.
1:30 p.m.: This article was updated with staff reporting.
This article was originally published at 7:15 a.m.