As the retrial of Bill Cosby heats up, a challenge has been raised to the judge handling the case. It’s not so much that the judge has done anything wrong, although one could well argue that his latest decision to allow the testimony of five additional women at the trial of the alleged rape of Barbara Constand, is very wrong.
But even if the ruling, that this evidence is sufficiently valuable to show Cosby’s unique pattern of sexual assault rather than his propensity, is questionable, the challenge is to what might be going on in the judge’s head. It’s referred to as “the appearance of impropriety,” because it sounds less offensive an accusation than the reality of impropriety.
Judge Steven T. O’Neill of the Montgomery County Court of Common Pleas grew emotional and paused twice to compose himself as he read a statement defending his wife, Deborah V. O’Neill, a therapist at a University of Pennsylvania center where she counsels students who have been sexually assaulted. He described her as an independent woman with her own views that have no relevance to his views as a judge or the retrial of the veteran entertainer.
“It’s difficult to have her accomplishments trivialized by a partisan motion,” the judge said. “My wife’s personal beliefs and her professional activities are of no consequence. They do not influence me one iota.
Judge O’Neill may well be right. Judges understand their duty and are constantly called upon to put aside extraneous factors in their life, their world, when doing the job they’ve sworn to do. Just because his wife is an ardent supporter of “believe the victim” doesn’t make him a believer as well.
He rejected a defense motion in which Mr. Cosby’s lawyers had argued, among other things, that the judge should recuse himself because recent rulings he had made, such as his admitting additional female accusers to testify at the trial, were evidence he had been influenced by his wife’s views.
Much has changed since Cosby’s first trial. The atmosphere and attitude toward sexual assault has shifted markedly. And then there is the ruling to allow five additional women to testify, even though they are not witnesses to any occurrence with Constand.
Judge O’Neill called the motion “untimely” because it had been made on the eve of Mr. Cosby’s trial. He said Mr. Cosby’s defense team in his first trial had raised the issue of his wife’s activism but never formally pursued a recusal motion.
Moving for recusal is an extreme, risky and low-probability motion. It’s the sort of motion that tends to piss off a judge, as you’re basically calling him incapable of doing his job, biased, subject to influence, incompetent. Nobody likes to be called incompetent. And it’s even worse when the basis for the argument is a judge’s wife. Attacking a guy’s wife is not the sort of thing one does lightly. It’s not the sort of thing a judge takes lightly.
Kathleen Bliss, a lawyer for Mr. Cosby, argued that the defense had received new information about Ms. O’Neill’s activities since the issue surfaced more than a year ago. The defense had argued that Ms. O’Neill had donated “marital assets” to V-Day UPenn, a campus group that gave money to another organization that plans to demonstrate outside the courthouse when the retrial begins.
“We did not know and we could not have known that this group planned a protest,” Ms. Bliss said, referring to the planned demonstration outside the courthouse. “We have a different set of circumstances here.”
And the circumstances are certainly different this time. Protests are intended to exert influence, and the only people to be influenced here are the judge and jurors. It’s the judge’s job to assure that the jurors are not influenced by anything other than the evidence. It’s awkward at best.
It was almost a year ago that the jury hung in Cosby’s case. Much has changed since then, and selecting a jury will have its difficulties, assuring that the finders of fact aren’t biased, aren’t the sort of people who would agree with anything Deborah O’Neill believes to be true. Can that be said of the judge? Or more to the point, can that be said with absolute certainty?
This will be a big trial. High profile, tons of media attention and a flurry of hot-take commentary by very passionate people who will do everything in their power to use the Cosby trial to sell their agenda. But the trial is about Barbara Constand, and it’s the prosecution’s responsibility to prove Cosby’s guilt beyond a reasonable doubt. Whether you believe her, or whether Judge O’Neill’s wife believes her, is irrelevant. Only the jury decides.
But when a case is so high profile, so controversial that it commands this level of attention, the judge should anticipate the level of scrutiny his wife, and hence he, is receiving. The charge is sexual assault. She’s pretty radical about sexual assault. He sleeps with her every night, eats with her every day, has to look into her eyes when he comes home from work.
On the one hand, this may be the sort of trial where a judge, in the exercise of sound discretion, considers it wiser to beg off the case than have his personal life, his wife’s work and beliefs, subject to scrutiny and, in all likelihood, taint his every call.
On the other hand, the defense motion for recusal may put the judge on edge, making him acutely aware of the need to be scrupulously neutral, and serve to push him a little further away from the prosecution lest he be viewed as improperly sympathetic to his wife’s point of view.
On the third hand, this is all a sideshow to the question of whether Bill Cosby committed sexual assault against Barbara Constand, and distracts everyone from the question of whether a crime was committed to whether the judge hears a little voice in his head saying, “but he’s guilty, no matter what.” That shouldn’t be what this trial is about. Not even a little bit.