Bill Cosby’s lawyers made plain this week the basis on which they are seeking to challenge his conviction for sexually assaulting Andrea Constand, an appeals process that could take as long as a year as the parties submit legal briefs to the Pennsylvania Superior Court.
None of the 11 issues raised in papers filed Tuesday in Montgomery County Court are new to those who have been following the case, but they set the parameters of where the defense feels it has the strongest possibility of overturning Mr. Cosby’s conviction.
The papers challenge the way the trial judge, Steven T. O’Neill, handled various parts of the case and range from the assertion that he wrongly ignored the testimony by a former district attorney who said he had promised never to prosecute Mr. Cosby to the argument that he erred by allowing testimony from five other women who had accused Mr. Cosby of drugging and sexually assaulting them.
Mr. Cosby, 81, was convicted in April and sentenced in September to three to 10 years in state prison for drugging and sexually assaulting Ms. Constand, in his home outside Philadelphia in 2004.
Mr. Cosby’s lawyers, Brian W. Perry and Kristen L. Weisenberger, will now follow up with a fuller brief arguing the specific points of law. It is also anticipated that Judge O’Neill will write an opinion that addresses his decisions during the trial and the complaints raised by the defense.
In their filing, the lawyers cited what they said were errors on Judge O’Neill’s part, including his finding that Mr. Cosby was a sexually violent predator with a risk of reoffending and his decision to allow into evidence a deposition Mr. Cosby made in a lawsuit brought by Ms. Constand. In that deposition, Mr. Cosby acknowledged obtaining quaaludes in an effort to have sex with women, a statement that prosecutors portrayed as evidence of his willingness to use drugs to incapacitate Ms. Constand.
Legal experts have said the defense’s strongest argument is its challenge to the judge’s decision to allow five additional women to testify in the case. “The trial court abused its discretion, erred and infringed on Mr. Cosby’s constitutional rights to Due Process of Law under the Constitution of the United States and of the Commonwealth of Pennsylvania in admitting five prior ‘bad act witnesses,’” Mr. Cosby’s lawyers wrote in the latest statement. The witnesses’ “allegations were too remote in time and too dissimilar to the Constand allegations.”
Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, for example, it demonstrates a signature pattern of abuse.
But its inclusion is rare, and Judge O’Neill never explained why he allowed the five to testify in the second Cosby trial after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That proceeding ended in a mistrial after the jury failed to reach a verdict.
Once Mr. Cosby’s lawyers file their full appeals brief, prosecutors have 30 days to reply, and the Superior Court can decide whether or not it wants to take up the case. If it does consider the case, the court is expected to publish a briefing schedule, which will set out a clearer timetable for the appeal process.
Mr. Cosby is incarcerated in a maximum-security state prison in Pennsylvania known as SCI Phoenix. Most inmates in the 3,830-bed prison are doubled up in cells, but Mr. Cosby, now Inmate NN7687, was given his own. There is, however, an expectation that he may eventually join the general prison population.
Andrew Wyatt, a spokesman for Mr. Cosby, said he was doing well. “He is upbeat, energetic, he is strong. He looks great. This is about his civil rights, and that is what he is focusing on.”
In a statement, Mr. Wyatt said the defense team’s “recent filing reveals the facts and truth that was not allowed in the courtroom, it emphasizes that this American Citizen [Bill Cosby] was denied the right to a fair and impartial trial.”
The Montgomery County District Attorney’s Office declined to comment on the filing.
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