The judge presiding over Bill Cosby's sexual assault retrial signaled Friday that he might ban Cosby's prior testimony about obtaining Quaaludes, prescription sedatives, and using them to seduce women.
The entertainer's decade-old statements, made under oath, about his use of Quaaludes – remarks that when unsealed in 2015 led to the reopening of the criminal investigation against Cosby – were read to jurors at the first trial, which ended with a mistrial in June.
But as he wrapped up two days of pretrial hearings, Montgomery County Judge Steven T. O'Neill said he may exclude them this time, in part because he is now permitting testimony from five women who say they were victims of sexual misconduct by Cosby before Andrea Constand, the alleged victim in the case. At the first trial, prosecutors were allowed to call just one other accuser.
"The evidence has changed in this case, pure and simple," O'Neill told the lawyers during the hearing in Norristown on Friday. "And I don't know what it is going to look like."
O'Neill said he would not rule on the admissibility of the Quaalude testimony until the trial is underway.
The Cosby deposition that included statements about Quaaludes were read again to jurors as deliberations dragged on. Cosby gave the testimony as part of a civil lawsuit Constand filed against him in 2005. The case was settled out of court in 2006, and Cosby's lawyers are now seeking to include that settlement agreement as evidence at trial. O'Neill said he would rule on that issue before the trial begins.
After presiding over pretrial hearings, O'Neill retired to a private conference room with lawyers in the case Friday afternoon to discuss what is all but certain to be a contentious process. Court staff, meanwhile, began setting up a courtroom for the jury panel.
On Monday morning, 187 Montgomery County residents will be asked to appear in court as potential jurors, O'Neill said. Of that number, 120 will be questioned and could become part of the panel tasked with determining Cosby's fate. Opening arguments are scheduled to begin the following Monday, after 12 jurors and six alternates have been selected and sequestered.
Lawyers on both sides have expressed concern about tainting the jury pool; one of Cosby's lawyers on Friday went so far as to ask the judge to have a flier removed from the courthouse cafeteria that read, "Believe and support survivors."
Jury selection for the first trial lasted three days. Jurors were chosen in Allegheny County and transported across the state by bus. Cosby's lawyers did not seek to have an out-of-town jury for the retrial.
The selection process grew heated at times during the first trial, perhaps most notably when Cosby's lawyers accused prosecutors of seeking to exclude black jurors. The publicity of the first trial hangs over the retrial.
Cosby's lawyers have also said their client – who denies nonconsensual sexual contact with any women – faces an "increasingly hostile" environment and jury pool in the wake of the #MeToo movement.
The entertainer's new legal team has proposed additional questions to ask potential jurors. Though their questions were not made public, District Attorney Kevin R. Steele said in court Friday that he intended to object to some of them.
Also Friday, O'Neill heard arguments about a variety of other pretrial motions. In one, Cosby's lawyers are seeking to exclude testimony from 14 witnesses who prosecutors said could corroborate the stories of the five additional accusers. O'Neill indicated he would not rule on those issues until the trial is underway.