Pennsylvania’s highest court questioned whether Bill Cosby’s alleged history of intoxicating and sexually assaulting young women amounted to a signature crime pattern, given studies that show as many as half of all sexual assaults involve drugs or alcohol.
Cosby, 83, hopes to overturn his 2018 sex assault conviction because the judge let prosecutors call five other accusers who said Cosby treated them the same way he did his victim, Andrea Constand.
The defence said their evidence prejudiced the jury against the actor and comedian.
“That conduct you describe — the steps, the young women — there’s literature that says that’s common to 50% of these assaults — thousands of assaults — nationwide,” Chief Justice Thomas G. Saylor said during oral arguments in the Pennsylvania Supreme Court.
“So how can that be a common scheme?”
The prosecutor, in response, offered more precise details about the relationships, saying Cosby used his fame and fortune to mentor the women and then took advantage of it.
“There was a built-in level of trust because of his status in the entertainment industry and because he held himself out as a public moralist,” said assistant district attorney Adrienne Jappe, of suburban Philadelphia’s Montgomery County, where Ms Constand says she was assaulted at Cosby’s estate in 2004.
“The signature was isolating and intoxicating young women for the purpose of sexually assaulting them,” Ms Jappe said.
Cosby, 83, has served more than two years of his three- to 10-year prison sentence for drugging and molesting Ms Constand, whom he met through the basketball programme at his alma mater, Temple University.
Courts have long wrestled with decisions about when other accusers should be allowed to give evidence in criminal cases.
The state’s high court appears eager to address the issue, and in doing so took on the first celebrity criminal case of the #MeToo era.
The court typically takes several months to issue its opinion.
Judge Steven T. O’Neill had allowed just one other accuser to testify at Cosby’s first trial in 2017, when the jury could not reach a verdict.
The #MeToo movement took hold months later with media reports about movie mogul Harvey Weinstein and other men accused of sexual misconduct.
Judge O’Neill then let five other accusers give evidence at Cosby’s retrial in 2018, when the jury convicted him of drugging and sexually assaulting Ms Constand.
Cosby’s appellate lawyer, Jennifer Bonjean, said prosecutors exploited “all of this vague testimony” about his prior behaviour and his acknowledgement that he had given women alcohol or quaaludes before sexual encounters.
“They put Mr Cosby in a position where he had no shot.
“The presumption of innocence just didn’t exist for him,” Ms Bonjean said in the arguments, which were held online because of the Covid-19 pandemic.
The seven-member court wondered aloud how many other accusers are too many in a fair trial and how far back the allegations should go.
Ms Constand went to police in 2005, about a year after the night at his home.
She had met him through her job with the basketball programme at Temple, where he was a trustee.
She said she was seeking advice about a career change.
The other women knew Cosby in the 1980s as they tried to make connections in the entertainment industry, and they did not go to police.
The defence also challenged the trial judge’s decision to let the jury hear damaging evidence Cosby gave in a lawsuit Ms Constand filed against him in 2005, after then-prosecutor Bruce Castor declined to arrest Cosby.
The evidence was sealed for nearly a decade until a federal judge was asked to release documents from the case as more Cosby accusers came forward.
The judge agreed, and Mr Castor’s successor reopened the case in 2015, just months before the statute of limitations to arrest him would have expired.
Cosby, a once-beloved comedian and actor known as America’s Dad, became the first celebrity convicted of sexual misconduct in the #MeToo era.
Ms Constand has granted permission to be identified in reports.
