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Cosby retrial: Judge to let prosecutors call 5 more accusers to testify

The ruling could transform Cosby's retrial from a he-said-she-said case to one about a pattern of sexual misconduct spanning decades.

Bill Cosby exits the Montgomery County Courthouse, after a pretrial hearing in the sexual assault case in Norristown, PA, Tuesday, March 6, 2018. JESSICA GRIFFIN / Staff Photographer.
Bill Cosby exits the Montgomery County Courthouse, after a pretrial hearing in the sexual assault case in Norristown, PA, Tuesday, March 6, 2018. JESSICA GRIFFIN / Staff Photographer.Read moreJESSICA GRIFFIN

In a move likely to broaden the scope and extend the length of Bill Cosby's upcoming retrial, a judge ruled Thursday that prosecutors can call as witnesses five women who have accused him of sexual misconduct in years past.

At last June's trial, which ended with a hung jury, only one woman was permitted to testify in addition to Andrea Constand, the central accuser.

But the ruling by Judge Steven T. O'Neill could transform the April 2 retrial from a he-said-she-said case to one about a pattern of sexual misconduct spanning decades by the celebrity once revered as "America's Dad."

More than 50 women have accused Cosby of sexual assault or misconduct, citing alleged incidents that stretch from 1965 through the 1990s. Several have sued him, but Constand's assertion — that he drugged and molested her in his Cheltenham home in 2004 — is the only one to lead to criminal charges.

Before the trial last year, O'Neill had rejected Montgomery County District Attorney Kevin R. Steele's request to present a parade of 13 accusers to the jury in a bid to show that what happened to Constand followed a pattern of predatory behavior by Cosby.

Instead, the judge allowed testimony from just one, Kelly Johnson, who said the entertainer drugged and sexually assaulted her in Los Angeles in the 1990s. Defense lawyers attacked her credibility on cross-examination and focused on inconsistencies in her story.

This time, Steele not only renewed his witness request but expanded it to 19 women, pointing to the way the defense attacked Constand and Johnson at the trial.

At a hearing last week, Cosby's lawyers asked O'Neill to block the witnesses. They said testimony from additional women, along with the #MeToo movement, could create unfair prejudice against Cosby.

O'Neill's ruling did not specify which of the 19 women can take the witness stand, but said the prosecution can use evidence of "five prior bad acts of its choosing."

Prosecutors must notify the court and defense lawyers by Monday whom they will call to testify.

"We're reviewing the judge's order and will be making some determinations," Kate Delano, a spokeswoman for Steele, said in a statement Thursday afternoon.

While the judge will instruct the jury about the legal purpose of the "prior bad acts" witnesses, the jurors themselves will determine how — or whether — the other accusers' testimony factors into their deliberations. After the deadlock in June, some jurors in that case said Johnson's testimony played little or no role in their deliberations.

"I didn't really think anything of her," juror Bobby Dugan told the Inquirer and Daily News days after the mistrial. "I didn't really see that as being part of this case."

The five women who testify can also expect grueling cross-examinations from Cosby's defense team as it seeks to discredit their allegations. Tom Mesereau, Cosby's new lead defense attorney, has said he plans to share details of Constand's confidential settlement of a civil lawsuit against Cosby to show "just how greedy" she was.

After the ruling, Cosby's spokesman, Andrew Wyatt, said in an email that prosecutors' attempts to include more accusers "shows [they] are desperate and this is a very weak case."

Cosby, 80, faces three counts of aggravated indecent assault, charges that could send him to prison for a decade. Jury selection is scheduled to begin March 29.