An attorney for actor and comedian Bill Cosby argued to the Pennsylvania Supreme Court on Tuesday that five women called to testify about prior bad acts by the man led to “unquantifiable prejudice” against him.

During oral argument, Cosby’s attorney, Jennifer Bonjean, asked the court to find that the prior evidence — that he had given the women a substance and then inappropriately touched them — was improper and to throw out his conviction for aggravated indecent assault.

Cosby, 83, is serving a prison term of three to 10 years at the State Correctional Institution at Phoenix.

He was found guilty in 2018 of sexually assaulting Andrea Constand, a woman with whom he developed a mentoring relationship through Temple University in 2004. Cosby claimed he had consent to touch her.

Cosby went to trial on the same charges a year earlier, but that case ended in a hung jury. During the first trial, Montgomery County prosecutors called only one witness relative to alleged prior bad acts by the defendant.

In his second trial, the prosecution called five such women — so many, Bonjean said, that the jury was “bombarded by prior bad act evidence.”

During the trial, Bonjean said, Cosby was forced to defend himself against all of the previous allegations as well as the criminal charges.

Throughout the argument session, which occurred virtually because of the covid pandemic, it appeared that several justices were critical of the prior bad act testimony.

“I tend to agree the evidence was extraordinarily prejudicial to your client,” said Justice Max Baer.

Baer later said that the sheer weight of the testimony prohibited Cosby from having a fair trial. He wondered where the line is for how many such witnesses it takes before it becomes prejudicial.

Between the five women’s testimony and that about the use of Quaaludes, she continued, “He had no shot. The presumption of innocence just didn’t exist for him at that point.”

The prior bad act testimony, Bonjean said, was general in nature — that there was the use of an intoxicant and sexual misconduct of some type.

“They were not really identical to the charged offense,” she said. “They sexual acts themselves were very different.”

But Assistant District Attorney Adrienne Jappe said that Cosby’s signature was to isolate and intoxicate young women.

It was, she told the court, a “yearslong signature predatory pattern to intoxicate women and sexually assault them.”

Chief Justice Tom Saylor interrupted Jappe and said that isolating and then intoxicating victims occurs in 50% of sexual assault cases. How, then, he asked, could it be enough to be considered a common scheme by Cosby?

Justice Christine Donohue noted that Cosby had an 18-month relationship with Constand.

“If you’re talking about a signature, you better incorporate all the facts we have … because frankly, I don’t see it,” Donohue said.

Jappe responded by saying that in each instance with all the women who testified, Cosby formed a relationship with them — sometimes talking to family members, traveling with them and holding himself out as a mentor.

She argued that the prior bad act evidence was primarily used at trial to show that Cosby did not make a mistake in believing Constand had given consent for his conduct.

Both Donohue and Justice David Wecht said that Cosby never argued at trial that he made a mistake. Instead, the defense was that Constand had given her consent.

The idea that it was a mistake was implied in Cosby’s defense, Jappe replied.

In the time leading up to trial, Jappe told the court that the prosecution initially proffered 19 prior bad act witnesses and that Common Pleas Judge Steven T. O’Neill only permitted them to call five of the eight most recent in time.

“He believed the evidence was all relevant,” Jappe said.

Justice Debra Todd asked whether the admission of that evidence could be considered harmless error that did not impact the verdict.

Cosby’s attorney said it was not.

“The prejudice was extraordinary, and no curative instruction could have addressed it,” Bonjean said.

But Jappe said it was, and that the jury could still have found Cosby guilty without it — based on Constand’s testimony alone.

To that, Saylor countered, “If that’s true, why did you need the five witnesses?”

They were necessary, Jappe said, to corroborate the victim — especially given that the defense attempted to discredit her — and that it took so long before Constand reported the alleged crime.

During the argument, Cosby’s attorney also argued that the case should never have been charged by the Montgomery County District Attorney’s office in the first place. Bonjean said that previous District Attorney Bruce Castor Jr. said in a news release that he would not prosecute the case.

On Feb. 17, 2005, Castor issued a release saying that an investigation by his office and the Cheltenham Township police had concluded. In it, Castor said they found “insufficient, credible and admissible evidence” that would sustain a verdict beyond a reasonable doubt. The release said a conviction would be unattainable, and Castor was therefore declining to file charges.

But the release goes on to say that in a civil case, the standard of proof is much lower.

It also notes that Castor “will reconsider this decision should the need arise.”

During oral argument, Bonjean said that Cosby relied on Castor’s word in agreeing to sit for a four-day deposition in a civil case with Constand, in which he was not to invoke the Fifth Amendment.

But Deputy District Attorney Bob Falin told the state Supreme Court that there was no written immunity agreement with the DA’s office and the idea that Cosby relied on a news release is absurd.

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