With less than two weeks before the scheduled start of jury selection in the sexual-assault retrial of Bill Cosby, attorneys for the legendary comedian have asked that Montgomery County Judge Steven O’Neill recuse himself.
Citing various prejudicial judgments and a conflicts of interest, Cosby’s attorneys, led by famed lawyer Tom Mesereau, said they filed the motion under the Pennsylvania Code of Judicial Conduct addressing the appearance of partiality.
“The Pennsylvania legal system is founded upon the principle that an independent, fair, impartial, and competent judiciary, composed of persons of integrity, will interpret and apply the law that governs our society based on the fundamental precept that an independent fair, honorable and impartial judiciary is indispensable to our system of justice,” Cosby’s attorneys wrote in a motion filed Wednesday.
They cited several judicial conduct rules including Rule 2.3 (A) which notes that “A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute.”
Even if a judge does not hold any actual prejudice, he or she nevertheless must avoid conduct that may reasonably be perceived as prejudiced or biased, the lawyers said.
“Here, there is a clear appearance of partiality that results from the marital relationship between Judge Stephen T. O’Neill, and his spouse, Dr. Deborah V. O’Neill,” Cosby’s lawyers said. “More specifically, the appearance of partiality stems from Dr. O’Neill’s statements, positions, opinions and actions with respect to the topic of sexual assault, along with her relationship with various activist groups.”
The judge’s wife is employed by the University of Pennsylvania’s Office of Counseling and Psychological Services where she’s a certified social worker and the coordinator of the Sexual Trauma Treatment Outreach and Prevention team.
According to the university’s counseling and psychological services website, the team comprises of multidisciplinary clinicians dedicated to providing confidential care, support and advocacy to students who have experienced sexual trauma during their academic career.
The team’s official stance on sexual assault is that the “culture of silence surrounding sexual assault and rape on campus and within our culture as a whole deters reporting, isolates victim-survivors, and undermines the safety and public health of all members of a community.”
A specific objection raised by Cosby’s attorneys stems from Dr. O’Neill’s 2012 dissertation on the issue of acquaintance rape in connection with her doctorate in social work at the University of Pennsylvania.
In her acknowledgements in the dissertation, she referenced support of her husband, Judge O’Neill.
“I could not have done this without you,” she said.
In the dissertation, O’Neill, a self-styled activist and advocate for assault victims, offered her personal views on acquaintance rape.
“I feel not only compassion for the victim but anger towards whoever has reacted to victim disclosure in a judgmental or shaming way … responding to victim disclosure with anything less than compassion is an additional betrayal and another layer of trauma,” she said. “I am aware that I move toward feeling protective towards the victim of sexual assault and wary of the perceptions the interview respondents will share concerning the victims.”
Directly related to Cosby, Dr. O’Neill often speaks publicly on the issue of sexual assault and is a frequent speaker at “Take Back the Night, which is sponsored by the activist group Abuse and Sexual Assault Prevention (ASAP).
Shortly after Cosby was charged with assaulting Andrea Constand, ASAP spoke out against the comedian and advocated for the University of Pennsylvania to rescind the honorary degree it awarded Cosby in 1990.
After continued pressure from ASAP, the school last month rescinded Cosby’s degree and O’Neill repeatedly speaks about acquaintance rape and has been quoted in articles regarding alleged victims’ failure to timely report or to report at all.
Prosecutors allege Cosby fostered a platonic mentoring relationship with Constand over the course of several months — that they were acquaintances.
In 2017, Dr. O’Neill donated to groups such as Women Organized Against Rape, or WOAR, and the National Organization for Women (NOW), which is scheduled to hold a public protest in front of the Norristown courthouse on April 2 when Cosby arrives to begin his retrial.
Cosby’s attorneys also argue that certain rulings by Judge O’Neill underscores Cosby’s concerns that an appearance of partiality has been met, requiring the recusal of the judge.
First, the attorneys note, the judge abruptly changed his own ruling and issued an order on March 15 favorable to the prosecution that will allow multiple accusers to testify about misconduct they claim occurred more than three decades ago.
By contrast, the judge ruled last year to allow just one accuser who was most recent in time, yet still over two decades past.
The March 18 ruling comes against a backdrop of social media movements like #MeToo, attorneys argued.
They also noted that Judge O’Neill refused to allow the testimony of Margo Jackson in the first trial, despite a “compelling proffer” by the defense, supported by Jackson’s statement, that Jackson would completely contradict Constand’s testimony and further provide admissions by Constand to the jury about Constand’s accusations which include the alleged victim lying about Cosby for her own financial gain.
And most recently, despite evidence that Constand’s accusations could not have possibly occurred within the 12-year statute of limitations which would bar prosecution, Judge O’Neill nonetheless allowed the case to go forward.
“While Mr. Cosby does not suggest that this court has taken a side here, the appearance of partiality because of strong familial ties should move this court to recuse itself,” Cosby’s attorneys said.