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"Chilling similarities" in Cosby accusers' testimony points to "signature crime," judge says

#MeToo movement's impact on Cosby case

The judge who presided over Bill Cosby's criminal case said he let five other accusers testify at the sex-assault trial because their accounts had "chilling similarities" that pointed to a "signature" crime. A Pennsylvania jury last year convicted Cosby of drugging and sexually assaulting Andrea Constand in 2004, after hearing from her and five others. 

Cosby, 81, is appealing his conviction based on the women's testimony and other key rulings by Montgomery County Judge Stephen O'Neill. Prosecutors used the testimony of the women, whose allegations weren't included in the criminal indictment, in an attempt to establish a pattern of prior misconduct.

Cosby began serving a three- to 10-year prison term in September at a state prison near Philadelphia.

Cosby's lawyers have cited what they believe to be 11 errors made by O'Neill, including allowing the testimony of five women, whose allegations they said were too remote in time and too dissimilar from Constand's account to be allowed at trial. But O'Neill, in a lengthy opinion filed Tuesday, said he found "chilling similarities" in the women's descriptions of their encounters with the comedian long considered to be "America's Dad." 

"The defendant's actions were so distinctive as to become a signature.The striking similarities between the assaults were not confined to insignificant details," the judge wrote. "In each instance, (he) met a substantially younger woman, gained her trust, invited her to a place where he was alone with her, provided her with a drink or drug, and sexually assaulted her once she was rendered incapacitated."

Each woman, the judge said, was substantially younger than Cosby and physically fit. O'Neill said Cosby initiated contact with the women primarily through their employment and that most believed Cosby sincerely desired to mentor them prior to the assaults, during which they were given an intoxicant while in a place Cosby controlled. Each was incapable of consent when they were assaulted, the judge said.

O'Neill noted that prosecutors asked to call 19 witnesses, but he allowed only five to mitigate any prejudicial effect against Cosby.

Bill Cosby
Andrea Constand arrives at the sentencing hearing for the sexual assault trial of Bill Cosby at the Montgomery County Courthouse in Norristown, Pa., Monday, Sept. 24, 2018.  David Maialetti/AP

Cosby was retried in April 2018, months after the #MeToo movement burst into view with sexual assault accusations against producer Harvey Weinstein and other powerful men in Hollywood and beyond. Prosecutors in the criminal case against Weinstein in New York have also asked a judge to allow women who are not included in the criminal indictment to testify about uncharged allegations against the movie producer at his September trial. Weinstein prosecutors may also be attempting to establish a pattern of behavior, however, hearings and motions related to the request have been sealed, so their strategy remains unclear. Weinstein has pleaded not guilty.

O'Neill had allowed just one other accuser to testify at Cosby's first trial in June 2017, when a jury deadlock led to a mistrial. In the ruling Tuesday, O'Neill said the new defense team that handled Cosby's retrial never directly challenged him on the difference in his two trial rulings about the other accusers' testimony. At any rate, he said, judges are not bound by their prior decisions.

The defense, in outlining their appeal issues, have also argued that Cosby had a binding agreement with a former prosecutor, Bruce Castor, that he would never be charged in the case. O'Neill again rejected the claim Tuesday, finding the signed press release from Castor — used to bolster the claim — falls short of an immunity agreement.

Castor had investigated Constand's complaint for about a month in 2005 before deciding not to bring a case, questioning why she waited a year to contact police. Before the year was out, 13 other accusers had come forward to support the lawsuit Constand filed against Cosby. He settled the case for $3.4 million.

When Cosby's deposition testimony from the lawsuit became public in 2015, and the criminal case was reopened, Castor for the first time told his successor about the supposed "non-prosecution" agreement. He forwarded their correspondence to Cosby's defense lawyer and testified as a defense witness at a 2016 hearing, O'Neill noted.

Bill Cosby
Bill Cosby accuser Janice Dickinson walks through Montgomery County Courthouse during a break in Cosby's sexual assault retrial on Thursday, April 12, 2018, in Norristown, Pa.  Mark Makela / AP

O'Neill also rejected defense efforts to have him step down from the case because of his alleged bias, and outlined the four-year legal process that led up to Cosby's conviction and sentencing. Cosby's lawyers also claimed that O'Neill erred by allowing Cosby's civil deposition testimony to be heard at trial and by designating Cosby a sexually violent predator, but O'Neill also dismissed those arguments.

Cosby's latest team of lawyers has been awaiting the opinion so they can proceed with the appeal in Pennsylvania courts. Cosby spokesman Andrew Wyatt, in a statement, said "O'Neill has a habitual habit of always trying to cover his many errors, which continues to show his hatred towards Mr. Cosby."

In a statement released Wednesday, Cosby's wife Camille Cosby, who has compared her husband to black men who have been treated unfairly by the justice system, blasted the judge's opinion and media coverage of the case. 

"My husband has been severely redefined by Judge O'Neill, despite having zero proof. Judge O'Neill, with a great deal of help from the media, has tried to turn Bill Cosby into one of the most insidious stereotypes of African American men…the brutal, black buck," the statement said.

Bill Cosby also released a statement saying he stands "firmly with my wife on the foundation of solidarity and truth."

"She's not afraid of this unethical judge, nor am I afraid of O'Neill's grossly immoral tactics," Cosby said.