Fourteen years ago, Bill Cosby invited Andrea Constand over to his home for dinner.
She was the director of basketball operations at Temple University. He was an influential, famous, and wealthy Temple alum, adored the nation over for his seminal, barrier-breaking sitcom, The Cosby Show. As Constand would later testify, Cosby “was a Temple friend, someone I trusted, a mentor and somewhat of an older figure to me.” She arrived at his home while contemplating a career change, seeking some guidance. He offered her pills: “These three friends will help you relax.”
On the day Constand swallowed those pills (which, according to her testimony, Cosby assured her were “herbal”) she was dining with a man who, less than two weeks prior, had been honored with the Bob Hope Humanitarian Award at the Emmy Awards for “his commitment to a variety of social causes, including continued education and racial equality.”
Constand says those pills left her incapable of movement or speech. They made her “dizzy, blurry-eyed and sick to her stomach.” Her legs felt “like jelly.” She was in this state, she says, when Cosby sexually assaulted her.
A year later, Constand told her mother about the assault and reported Cosby to the police. But Montgomery County District Attorney Bruce Castor declined to pursue charges. So Constand filed a civil suit against Cosby, and they settled out of court. That might have been the end of that story — but in 2014, in what was arguably the most influential stand-up set in recent memory, Hannibal Buress riffed on Cosby’s long-ignored history of allegedly raping women.
As a video of this performance blazed across the internet, multitudes of women came forward to say Cosby had sexually assaulted them, including some Jane Doe witnesses from Constand’s civil suit who never got their chance to testify. And with just six months to go before the 12-year statue of limitations ran out under Pennsylvania law, Montgomery County district attorney Risa Vetri Ferman reopened the Constand investigation.
In December 2015, Cosby was charged with three counts of aggravated indecent assault, a felony under Pennsylvania law. Each count carries a maximum ten-year sentence.
Cosby’s criminal trial last June, held in Norristown, Pa., ended in a mistrial. The jury deliberated for 50 hours but was unable to reach a verdict on any of the three counts.
Within minutes of Judge Steven O’Neill declaring a mistrial, Montgomery County District Attorney Kevin Steele announced his plans to retry Cosby. And though Cosby has fought mightily to delay the retrial, or have it chucked out altogether, jury selection is already underway. The retrial is slated to begin on Monday, April 9.
Some key elements of the trial will remain the same at this second go-round: Judge O’Neill is still presiding (despite protests from the defense) in the same courthouse in Norristown. But the past 10 months have brought some major changes, not just to the strategies of Constand and Cosby’s respective legal teams but to bigger-picture factors that no attorneys can control: the post-#MeToo culture from which the jury will be plucked, the context in which Cosby’s case will be heard, and — perhaps — the chances that Cosby will be convicted.
The #MeToo movement
At the first trial: Cosby was tried for the first time in June 2017. In sexual assault awareness years, that’s one year after former Stanford swimmer Brock Turner’s slap-on-the-wrist sentence — he was convicted of sexual assault but not rape because he used his fingers, not his penis, to penetrate his victim; he served three months of a six-month sentence — sparked nationwide outrage; eight months after Donald Trump won the 2016 presidential election, dogged but not defeated by the many women who accused him of sexual violence and by his own admission, caught on tape, that his celebrity enabled him to sexually assault women with ease.
But Cosby’s trial was held four months before the bombshell investigations by the New York Times and the New Yorker detailed Harvey Weinstein’s reportedly rampant sexual abuse; and nearly five months before Alyssa Milano revived Tarana Burke’s “Me Too” movement from 2006 by turning the phrase into a hashtag, then a rallying cry.
It was as if somebody ran a black light over every man in public life and revealed the grime that had been there all along: On men who made and starred in the movies and television shows we watched, the jokes we laughed at, the music we heard, the plays we saw, the food we ate; on men who sought and held elected office; on the men whom millions of people had relied upon, for decades, to authoritatively report the news, to be trustworthy and honest; who dictated the coverage of the 2016 presidential election — not that anybody has any questions about how that turned out!
At the retrial: As you might expect, the defense has raised concerns about the effect of the #MeToo movement on a jury. But Judge O’Neill “scoffed” at the notion that the groundswell of women speaking publicly about their experiences with sexual violence would undermine Cosby’s right to a fair trial. “You’re saying that the 12 people that are going to be sitting here, just by being humans in 2018 and whatever is going on culturally, are going to decide this case differently? You’re saying he can’t get a fair trial at all?”
On the first day of jury selection, only one of the 120 potential jurors screened said he was unfamiliar with #MeToo.
Women testifying against Cosby
At the first trial: Over 60 women have publicly accused Cosby of sexual harassment, assault, or rape. The prosecution selected 13 of those women and asked that Judge O’Neill allow them to testify as what’s known as “prior bad acts” witnesses. O’Neill allowed only one: Kelly Johnson. She testified on the first day of the trial, telling the jury that she was working as an assistant for Cosby’s William Morris agent when Cosby drugged and assaulted her.
She thought of Cosby as a “father figure or favorite uncle.” During a one-on-one meeting at the Bel Air Hotel — Cosby, she says, told her they would be talking about her professional future — Cosby made her take a “large white pill” to “relax.” She woke up in bed next to him. He was only wearing a bathrobe.
It is rare for evidence like this to be admitted in criminal cases. But the prosecution aims to demonstrate that Cosby’s encounter with Constand fits a larger pattern, in that these women describe such strikingly similar experiences with Cosby: he won them over with the promise of mentorship and career advancement, lured them into a private place with him, drugged them, then sexually assaulted them once they were incapacitated or unconscious. The goal of the prosecution is to show that Cosby is a serial predator with a modus operandi, a signature crime of which Constand was merely one of many victims.
At the retrial: The prosecution asked for even more women to be allowed to testify, putting forward 19 names whose allegations cover a 50-year span. Judge O’Neill is allowing up to five women to take the stand, selected from the eight whose accusations are most recent, dating back to the early 1980s.
The five women who could testify are:
- Heidi Thomas, who was a 24-year-old aspiring actress and model when she says Cosby drugged and raped her in 1984.
- Chelan Lasha, who said at a press conference in 2015 that she was 17 years old and working at the Las Vegas Hilton in 1986 when Cosby drugged her, gave her alcohol, and fondled her, at which point she blacked out.
- Lise-Lotte Lublin, who says she believes Cosby drugged her drinks and sexually assaulted her when she was 23 years old in 1989 (the last thing she remembers is feeling dizzy and Cosby “stroking her hair”).
- Supermodel Janice Dickinson, who went public in 2014 and alleges Cosby drugged and raped her in 1982.
- Janice Baker-Kinney, who says she met Cosby in the 1980s while she was 24 years old and working in a casino. He gave her two pills, she said when she spoke out in 2015, and she regained consciousness to find her jeans unzipped and her blouse open and, the next morning, she awoke to find Cosby naked beside her.
At the first trial: At the request of Cosby’s legal team, the jury was selected from Pittsburgh. Cosby’s team argued that the local juror pool would be biased against Cosby because, in 2016, both candidates in the heated race for Montgomery County District Attorney used Cosby — and their vows to bring him to justice — as a centerpiece in their campaigns.
In the battle between Bruce Castor (who while serving at the D.A. declined to bring charges against Cosby in 2005) and Kevin Steele (who asked MoCo voters: Are you really going to re-elect the guy who “didn’t even try” to get Cosby into a courtroom?), Steele won out.
Steele was propelled to victory in part by a 30-second TV spot, “Tough,” that tore Castor apart for his failure to use the testimony of other Cosby accusers to put Cosby away. Castor fired back with an ad of his own, “Trust,” that directly responded to Steele’s charges and, in doing so, also mentioned the multitudes of women who came forward to accuse Cosby of sexual violence. So you can imagine why Cosby’s team did not want jurors to be selected from the local population, which had been pummeled with ads from two men competing against one another on the basis of who’d be better at putting their client behind bars.
At the retrial: There will be no out-of-town jurors this time around. The jury is being selected from Montgomery County. And if you’re wondering, “How is it possible to find a dozen sentient adults who have not heard a single thing about one of the biggest news stories of the past three years?” well, you’re not alone. On the first day of jury selection, more than half of the potential jurors said not only that they’d heard about the Cosby case but had already made up their minds.
Quaaludes, payouts, and other explosive evidence
At the first trial: The most explosive piece of evidence at the trial — which the defense tried, and failed, to keep out of the courtroom — was a 2005 deposition in which Cosby admitted to procuring drugs for women with whom he wanted to have sex.
At the retrial: Judge O’Neill has suggested that the deposition might not be allowed in this time. At a pretrial hearing, he said he would not be ruling on that testimony until it arises during the retrial itself. “This defendant is not on trial for what he said in his deposition,” O’Neill said.
Both the defense and the prosecution want to bring up details of the financial settlement Constand received from Cosby from her 2005 lawsuit. At the time of the payout, Constand and Cosby signed a confidentiality agreement; the details of the settlement have been private for 13 years and were not disclosed during the initial trial.
The defense hopes the amount of money Constand got from Cosby will demonstrate “just how greedy” Constand was. As for the prosecution, they allege that Cosby included “language in the agreement that would have barred Constand from cooperating with authorities – which they say indicates that he knew he had done something illegal,” the Philadelphia Inquirer reports.
On Tuesday, Judge O’Neill ruled that the settlement, which Cosby paid Constand in 2006, would be revealed at the retrial. However, he went on to rule that certain details of the settlement that the prosecution sought to include would not be publicly disclosed.
Cosby’s legal team
At the first trial: Before Cosby even went to trial, he burned through three lawyers, two of whom he fired (Marty Singer and Christopher Tayback) and one (Monique Pressley) who quit. When he finally made it to the courtroom in Norristown, he was represented by Brian J. McMonagle.
At the retrial: Three months before the retrial was initially slated to begin last November, McMonagle quit, reportedly over his distaste for how Cosby spokesman Andrew Wyatt conducted himself at the trial, speaking to the media without going through McMonagle first.
Cosby’s new lawyer: Thomas Mesereau, the attorney best known for winning Michael Jackson’s acquittal in his 2005 child molestation trial. As ThinkProgress noted at the time of the announcement, Mesereau has represented a number of famous clients, but their cases ended in decidedly less triumphant ways:
He defended Mike Tyson in his 2001 rape case (but the charges were later dropped), Suge Knight in his murder case (ongoing, but Mesereau left that team in 2016), and Robert Blake in his 2004 murder case (he resigned citing “irreconcilable differences” before the trial began).
At the first trial: Cosby’s team described Constand’s encounter with Cosby as consensual — romantic, actually — and painted Constand as unreliable, pointing to inconsistencies in her police reports. “Why are we running away from the truth of this relationship?” McMonagle asked during closing arguments. (That Constand is a lesbian was neither raised by the defense nor the prosecution at the trial.)
At the retrial: Cosby’s new legal team has their own game plan: To paint Constand as a a money-hungry liar. To this end, the defense intends to call Marguerite Jackson, who worked with the Temple University women’s basketball team at the same time as Constand did, as a witness who will testify that “Constand planned to fabricate a claim of sexual assault in order to get a big payout,” NPR reports.
On Tuesday, O’Neill ruled that the defense could call Jackson as a witness though, as the Philadelphia Inquirer reports, that “ruling is subject to change based on Constand’s testimony.” At the first trial, Constand testified that she did not know Jackson.