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Bill Cosby was denied bail after being sentenced to up to 10 years in prison for his 2004 assault of Andrea Constand. Constand embraced supporters as she left court.

USA TODAY

The Pennsylvania Supreme Court said Tuesday it has accepted convicted sex offender Bill Cosby’s appeal of his 2018 conviction, thus raising the possibility it might be overturned in the future. 

The court limited its review to two key issues from Cosby’s appeal, which were raised during his two trials on charges of drugging and raping a woman at his Pennsylvania home in January 2004.  

Under Pennsylvania law, the high court did not have to accept Cosby’s nearly 300-page appeal in which he raised multiple issues objecting to the conduct of his two trials. 

Andrew Wyatt, a spokesman for Cosby, 82 and now serving a three-to-10 year sentence in a state prison, said the former TV icon is “extremely thankful.”

“As we have all stated, the false conviction of Bill Cosby is so much bigger than him — it’s about the destruction of ALL Black people and people of color in America,” Wyatt said in a statement to USA TODAY. “We’re extremely thankful to our attorneys for their tenacious efforts in fighting for the vindication of Mr. Cosby.”

Cosby’s appeal had already been turned down in full by an appellate court, with all of his objections rejected. 

In its one-page order, the Supreme Court said it will review the appellate panel’s decision on Cosby’s case based first on whether the trial judge’s decision to allow other accusers to testify about alleged, uncharged “prior bad acts” by Cosby was prejudicial as opposed to probative, a standard used to allow or disallow testimony. 

The other issue the court will review is whether the trial judge improperly allowed testimony about a civil deposition Cosby gave after he said he was promised by an earlier district attorney that he would not be prosecuted. By relying on that promise, was Cosby induced to make self-incriminating statements later used against him, and does that violate his constitutional rights against self-incrimination?

Under the usual timeline, the high court would next set a briefing schedule and eventually a date for oral arguments before the court. 

“The Pennsylvania Supreme Court has narrowed the issues on appeal, limiting them to prior bad acts and the sovereign edict,” said Montgomery County District Attorney Kevin Steele in response to the news. “We look forward to briefing and arguing these issues and remain confident in the Trial Court and Superior Court’s previous decisions.”

Steele prosecuted Cosby at his two trials, both presided over by Judge Steven O’Neill.

The first trial, in June 2017, ended in a mistrial after the jury was unable to reach a verdict. The second trial was in April 2018, when the jury voted to convict on three counts of aggravated sexual assault of Cosby’s friend, former Temple University staffer Andrea Constand, at his home in the suburbs of Philadelphia.

One of the only differences between the two trials was that in the first, O’Neill allowed only one prior bad acts accuser to testify; at the second, he allowed five accusers to testify. 

The high court said it would review whether such testimony was too old, whether the details of the accusations differed too much from those alleged at the trial, whether that was more prejudicial than probative, and whether allowing such testimony constituted “nothing but improper propensity evidence.”

Jennifer Bonjean, one of Cosby’s appellate lawyers, said the granting of the Cosby appeal is “extraordinary” because it’s “so rare” for state high courts to accept appeals. 

She said the court’s willingness to reexamine the use of testimony about old and uncharged crimes against Cosby could affect other cases in Pennsylvania and elsewhere, especially #MeToo cases such as the conviction of ex-Hollywood mogul Harvey Weinstein on sex-crime charges in New York in February. 

Bonjean said it’s a foundational principle of American criminal law that just because a defendant “might have done something in the past does not make it more likely he’s done something now.” 

“It’s a matter of law that you can’t introduce propensity evidence,” Bonjean said. “We’ve been swept up in a time when there’s a lot of emotion and so much #MeToo momentum that it was considered unheard of to question women. We should take women (accusers) seriously but not accept everything hook, line and sinker without any sort of vetting.”

Constand, who now lives in Canada and is an advocate for sexual assault victims, posted a lengthy tweet in response, “respectfully” asking the court to “consider the enormous prospect of putting my perpetrator back into the community after being labeled a convicted sexually violent predator.”   

While even convicted criminals have the right to appeal, Constand said the “true heroes” are the women who testified as prior bad acts witnesses against Cosby, and their rights matter most, she said. 

If the court were to overturn Cosby’s conviction, then prosecutors would have to decide whether to retry him again at a third trial.

Depending on how it rules, the high court could also issue instructions that preclude prior bad acts witnesses from testifying at a third trial, Bonjean said. 

For now, Cosby remains in prison, and is not eligible for release due to the coronavirus pandemic, which has affected many state and federal prisons. His legal team is considering whether to seek his release, on grounds of age and blindness, pending the high court’s review of his appeal.

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