Bill Cosby will face up to 5 other accusers at second trial, judge rules

Maria Puente | USA TODAY

It won't be just Andrea Constand on the stand next month accusing Bill Cosby of sexual assault. The judge presiding over Cosby's retrial ruled that up to five other accusers of the former "America's Dad" will get to tell a jury he drugged and/or raped them, too.

The ruling Thursday by Judge Steven O'Neill in Montgomery County, Pa., was a victory for District Attorney Kevin Steele, the man who has been pursuing TV icon Cosby for more than two years. But it wasn't a total victory.

"The Commonwealth shall be permitted to present evidence regarding five prior bad acts of its choosing," O'Neill's two-page order said. "The balance of the Commonwealth's motion is DENIED."

Steele and the prosecution team wanted to call 19 other accusers, some of the five-dozen women who have come forward since October 2014 to accuse Cosby of drugging and/or sexually assaulting them in episodes dating back to the mid-1960s.

Prosecutors now have to decide which five accusers it wants to put on the witness stand next month. They must let the court and Cosby's defense team know by March 19.

The judge specified prosecutors can pick accusers from the eight women whose accusations date from the 1980s, the most recent of the 19 other accusations against Cosby.

None of these other accusations resulted in criminal charges against Cosby, mostly because they're so old they fell outside the statutes of limitation. Constand's accusation is the only one prosecuted so far; Pennsylvania has an unusually long period — up to 12 years — in which to file sex-crime charges.

"We’re reviewing the Judge’s order and will be making some determinations," said Kate Delano, spokeswoman for the district attorney, in an email to USA TODAY.

"It shows (how) desperate they are and this is a very weak case," said Cosby's spokesman, Andrew Wyatt, in an email to USA TODAY.

Cosby has a new team of lawyers for his retrial and they vigorously fought the move to allow other accusers to testify. They argued prosecutors were looking to bolster a weak case with "ancient allegations" that would confuse and distract jurors in the Me Too era.

The defense team also argued that the "probative" value of other accusers' testimony would be outweighed by its prejudicial damage.

Constand, a former Temple University basketball official, says Cosby drugged and molested her at his home in Montgomery County outside Philadelphia in 2004. He says their encounter was consensual.

Steele sought other accusers to bolster Constand's accusation by establishing a pattern of alleged "prior bad acts" by Cosby. There is no physical evidence of the encounter between Cosby and Constand — she didn't report it until a year later — so the case came down to she-said-he-said.

At the first trial, O'Neill allowed only one other accuser to testify that Cosby assaulted her in Los Angeles in the 1990s.

The result: A hung jury after an 11-day first trial in June 2017. The jury deliberated for five days but failed to reach a unanimous verdict on three charges of aggravated sexual assault. At least one juror said afterward that the problem was "not enough evidence."

Now Cosby is to be retried on Constand's accusations starting April 2 in Norristown, Pa., with jury selection to begin March 29. Judge O'Neill has already ruled against Cosby on a number of his pre-trial motions to dismiss the case.