Before announcing his decision, O’Neill passionately defended his spouse.
“She is an independent woman and has the right to be involved in anything she believes in,” he said during the first of two days of pre-trial motions hearings. “In the early years of our marriage she was dedicated to raising our children, then to raising herself up. It’s difficult to have her accomplishments trivialized.”
Dr. Deborah O’Neill is a psychotherapist at the University of Pennsylvania in Philadelphia and coordinates a team that cares for and advocates for student sexual-assault survivors. She dedicated her dissertation on college-acquaintance rape to her husband, which the defense used to say claim had discussed sexual assault issues.
Her name was also on a $100 donation in February 2017 that ultimately went to Women Organized Against Rape, a group that recently said it would be staging a protest outside the courthouse during Cosby’s trial.
O’Neill said that it was a donation from his wife’s employer, not her.
Cosby, 80, is charged with three counts of aggravated indecent assault for allegedly drugging and sexually assaulting former Temple employee Andrea Constand at his Elkins Park, Pennsylvania mansion in January 2004. Last June, Judge O’Neill declared a mistrial after jurors were unable to come to a unanimous decision after 52 hours of deliberations. Jury selection for his retrial is currently scheduled on Monday, April 2. O’Neill has said he expects the trial to last a month. Cosby has denied Constand’s allegations as well as similar ones from more than 60 women.
Montgomery County Assistant District Attorney Stewart Ryan said the defense was trying to “create” an appearance of bias on the judge’s part.
“This type of smoke machine tactic should not be tolerated,” he told the judge.
Defense attorney Tom Mesereau bristled at that description.
“This is hardly a creation of smoke,” he said. “Our motion has factual material…It still appears to us your wife was responsible for the donation. We live in a very complex, volatile period of time in our society where, from a defense lawyer’s point of view, things like this assume a level of importance. Maybe ten years ago we wouldn’t be concerned about what was happening outside the courtroom but..it’s a very important issue to us.”
O’Neill submitted a letter into the record that verified the $100 donation was from his wife’s employer, not his wife, before denying the defense motions to recuse himself.
“My wife and I share the love of each other and most of all our children and grandchildren,” he said. “What we not share are unified views on social and legal issues…I can be fair and impartial in this case.”
He then heard arguments from the defense and prosecution about whether the testimony of Temple University employee Marguerite Jackson should be allowed at trial. Jackson claims Constand spoke to her about wanting to set up a “high profile” person for drugging and sexually assaulting her the year before she went to police.
“The jury had a right to hear from this witness,” argued Becky James, one of Cosby’s defense attorneys. “Ms. Constand expressly reveals to Miss Jackson her own mindset.This evidence goes directly to her [Constand’s] credibility.”
Not so, said co-prosecutor Kristen Feden, who left the DA’s office last summer but came back to help retry the Cosby case. She said Jackson’s statements do not meet the strict standards required to allow hearsay testimony.
“We do not concede this happened,” she added. “Quite frankly the circumstances suggest that it never happened. I do not want the court to think for a moment that we are conceding that this statement was made.”
O’Neill did not allow Jackson to testify at the first trial after Constand said she did not remember the woman, arguing it was hearsay.
Other items on the agenda for the two days of hearings include whether the details of Constand’s civil lawsuit against Cosby, which he settled with a confidentiality agreement and an undisclosed sum in late 2006, will be part of the trial and whether anything about former Montgomery County District Attorney Bruce L. Castor Jr.’s decision not to prosecute Cosby in 2005 could be mentioned.