Bill Cosby swears all he gave Andrea Constand was Benadryl.
An incendiary exchange from a 2005 deposition does not contradict that point. But it does offer the closest thing to a confession from Cosby that the prosecution is likely to get: Cosby’s admission that he obtained Quaaludes with the intent of giving them to young women with whom he wanted to have sex.
Cosby’s criminal retrial, expected to last at least a month, is heading into its second week. Constand alleges that Cosby drugged and sexually assaulted her. Cosby maintains that their encounter was consensual. He has been charged with three counts of aggravated indecent assault, each of which carries a maximum sentence of ten years.
On Tuesday morning, Judge Steven T. O’Neill ruled that prosecutors could introduce evidence about Cosby’s prior statements about Quaaludes, “though he cautions that he may still block some references in the moment,” the Philadelphia Inquirer reports.
The ruling is a blow for the defense and for Cosby personally, who has spent over a decade trying — and, lately, failing — to keep the deposition hidden from the public.
‘…you were going to use these Quaaludes for young women that you wanted to have sex with?’
Back in 2005, then-district attorney Bruce Castor declined to bring charges against Cosby, citing both a lack of evidence as well as Constand’s delay in reporting (she went to the police one year after the alleged assault), so Constand filed a civil suit against Cosby instead.
Dolores Troiani, Constand’s attorney at the time, grilled Cosby for four days in a Philadelphia hotel. During those days of questioning, Cosby confessed to a multitude of ethically questionable actions. As the New York Times, which later obtained the full transcript, reported:
He was not above seducing a young model by showing interest in her father’s cancer. He promised other women his mentorship and career advice before pushing them for sex acts. And he tried to use financial sleight of hand to keep his wife from finding out about his serial philandering.
When detectives asked — not for the first time — whether Cosby had ever had sex with Constand, Cosby answered, “Never asleep or awake.”
Cosby and Constand settled out of court for $3.38 million, an amount that both parties kept secret, per a confidentiality clause, until the defense revealed it at the retrial. And excerpts from this deposition, with all its potentially damning revelations, remained sealed for ten years.
Does a ‘public moralist’ have a right to privacy?
On July 6, 2015, Judge Eduardo Robreno, who’d presided over Constand’s case since it began, released excerpts from the 2005 deposition along with other court papers from the case. Their ultimate publication is a credit to the hustle of Associated Press reporter Maryclaire Dale, who spent ten years unsuccessfully petitioning Robreno to unseal them and who, as dozens of new Cosby accusers came forward in late 2014 and early 2015, petitioned Robreno again.
Cosby’s attorneys battled to keep the deposition sealed, citing Cosby’s right to privacy. To publish the documents, they argued, would divulge to the masses “intimate knowledge about his sex life,” embarrass Cosby, and violate the confidentiality agreement both Cosby and Constand signed.
But Robreno contended that by asserting his status as a role model — one who frequently spoke about what did and did not constitute acceptable behavior — Cosby essentially relinquished that right.
Roberno specifically pointed to one infamous address, which came to be known as the “Pound Cake Speech,” that Cosby delivered in May 2004. Speaking at an NAACP event commemorating the 50th anniversary of Brown vs. Board of Education. Cosby berated black Americans for blaming racism for their problems, giving their children “names like Shaniqua, Shaligua, Mohammed and all that crap,” and dressing “with their hat on backwards, pants down around the crack.”
Speeches in this vein, Judge Robreno decided, prove that Cosby purported to be a “public moralist” and, in doing so, “voluntarily narrowed the zone of privacy that he is entitled to claim.” As Robreno wrote in his ruling:
“The stark contrast between Bill Cosby, the public moralist and Bill Cosby, the subject of serious allegations concerning improper (and perhaps criminal) conduct, is a matter as to which the AP — and by extension the public — has a significant interest.”
“Significant interest” turned out to be an understatement.
Reopening the case against Cosby
Of all the striking answers Cosby gave in the deposition, one single-word response stood out from the rest as if typed in neon ink: When asked if he intended to give Quaaludes to young women he planned to have sex with, Cosby said “yes.”
By the time this deposition was published, over 40 women had publicly accused Cosby of sexual misconduct. Many of those women say that, before he assaulted them, Cosby drugged them, either by offering them pills or slipping drugs into their drinks.
Just four days after the deposition was released to the public — and with only six months to go before the 12-year statute of limitations for aggravated indecent assault runs out under Pennsylvania law — Montgomery County district attorney Risa Vetri Ferman reopened the Constand investigation. (As the prosecution has reiterated numerous times throughout the retrial, it was not Constand who went to the district attorney’s office but the D.A. who approached her about reopening the case.)
That December, Cosby was charged with sexual assault.
At the Norristown news conference at which Ferman announced the charges, her successor, Kevin Steele, alluded to the deposition in his remarks. “A prosecutor’s job is to follow evidence wherever it takes us, and sometimes that means whenever it comes to light,” Steele said. “Reopening this case was not a question. Rather, reopening this case was our duty as law enforcement officers.”
Trying — and failing — to keep Quaaludes out of the courtroom
Cosby’s team has fought repeatedly to keep this deposition out of the courtroom.
Before his first criminal trial last June, Cosby’s team argued that the deposition should be ruled inadmissible. They claimed that then-D.A. Bruce Castor promised Cosby he would never be prosecuted in the Constand case and that this promise extended to all future holders of the district attorney’s office. That alleged agreement prompted Cosby’s candor in the 2005 deposition, Cosby’s team argued; the deal, which would help Constand’s civil suit, meant that the testimony could never be deployed in a criminal case against Cosby.
But no written record of this agreement exists. Judge O’Neill ruled against the defense — who were also trying to get the entire case dismissed — and allowed the deposition to be admitted. (He did, however, reject the prosecution’s request to bring up references to “Spanish fly,” a drug-slash-aphrodisiac Cosby joked about giving girls in his youth.)
Even with that deposition, though, the prosecution couldn’t land a conviction. They wound up with a hung jury and a mistrial.
As the retrial approached this spring, Cosby’s new defense team, led by Thomas Mesereau, fought again to keep the deposition from court, and Judge O’Neill suggested at a pretrial hearing that his ruling might be different this time around. “This defendant is not on trial for what he said in his deposition,” O’Neill said, announcing that he would issue no ruling on that testimony until it came up during the trial.
Tuesday morning, O’Neill ruled that the deposition could be admitted.
He said, she said, she said, she said, she said, she said, she said.
At the retrial, five women who also say Cosby drugged and sexually assaulted them were called to testify. That’s a significant increase from the first trial, at which only one additional accuser, Kelly Johnson, was allowed to take the stand.
The prosecution hopes to show that Constand, just like these five women — Heidi Thomas, Chelan Lasha, Janice Baker-Kinney, Janice Dickinson, and Lise-Lotte Lublin — was victimized by Cosby. That these accounts, taken together, prove Cosby regularly used drugs to incapacitate women he intended to assault.
In the deposition, Cosby is adamant that all his sexual liaisons were consensual. Except, that is, when he was asked about Therese Serignese.
Serignese was one of the 13 Jane Does in Constand’s civil suit. She went public with her allegations in 2014, telling the Huffington Post that Cosby drugged and raped her in 1976.
“The next memory I have was I was in a bathroom and I was kind of bending forward and he was behind me having sex with me. I was just there, thinking ‘I’m on drugs, I’m drugged.’ I felt drugged and I was being raped and it was kind of surreal.”
Was Serignese capable of consenting to sex after she took Quaaludes from Cosby?
Cosby’s reply: “I don’t know.”