More than two years after Bill Cosby was shoved off his showbiz pedestal by an avalanche of accusations of sexual assault, the once-acclaimed comedy icon goes on trial in Pennsylvania Monday over what happened in an encounter with one accuser more than 13 years ago.
Do not expect a rewind of the last 32 months of salaciously toxic headlines about Cosby’s alleged sexual behavior with dozens of women dating back to the mid-1960s.
Instead, expect a trial as tightly focused as Judge Steven O’Neill can make it on what happened at Cosby’s suburban Philadelphia estate in January 2004, when a Temple University basketball official named Andrea Constand arrived for dinner and career advice from her mentor, Cosby, a Temple alum.
Do not expect to see Cosby testifying on the stand; he has said he won’t.
Do not expect to watch the trial on TV, on Twitter or via live-stream; there will be no cameras in and no transmissions of any kind from the courtroom.
But it will be covered: More than 100 journalists from around the world signed up to watch the proceedings inside the courtroom and in a spill-over room in the courthouse in Norristown, Pa.
Cosby will face a mostly-white jury of seven men and five women (two jurors are black) sequestered for a criminal trial that could last two weeks, as predicted by the lawyers in the case, or much, much longer. (There are also six alternates.)
But no matter the outcome — whether the jury finds him guilty or innocent of three charges of aggravated indecent sexual assault — this much is already clear: Cosby is a broken idol, permanently shattered by accusations that he repeatedly drugged and/or raped women he knew or met at a time when he was becoming, thanks to The Cosby Show, one of the most famous, powerful and beloved figures in Hollywood.
Cosby has said, in the selective interviews he did in advance of the start of jury selection in May, that he hopes to return to his career as a comedian and groundbreaking TV star after the trial. But that’s highly unlikely, says Stuart Slotnick, a criminal defense attorney who’s been following the case and predicts it won’t be easy to prove for the prosecution.
“There is no recovery for Bill Cosby, based upon the massive number of reports of sexual abuse that the public has heard over the past several years,” says Slotnick. “It seems impossible he will go back to being Bill Cosby and recapture the days of past glory.”
Nevertheless, if he’s acquitted, Cosby, 79, nearly blind and in uncertain health, will at least avoid prison. If he’s convicted, he could get years behind bars. That will have to be enough for the five-dozen women who have come forward since October 2014 to accuse Cosby: It’s too late for them to pursue him in criminal court thanks to statutes of limitation.
Expect that many of the accusers will be watching the trial, if not there in person, to support Constand. “I salute Andrea Constand for having the courage to see this through; she represents all the accusers, and we are all cheering for her,” says Lisa Bloom , the Los Angeles-based women’s rights lawyer who represents a Cosby accuser, ex-model Janice Dickinson.
Here’s what else to expect in the Cosby trial:
Cosby is charged with drugging and then molesting Constand, now 44, after she visited him at his estate in Montgomery County. He says their encounter was consensual. She reported the encounter to police a year later. The then-district attorney declined to file charges, citing lack of evidence and the time elapsed. So Constand filed a civil suit; it was settled in 2006 for an undisclosed sum, and sealed.
In October 2014, after a video of comedian Hannibal Buress calling out Cosby as a “rapist” in his stand-up show went viral, dozens of women starting going public with similar stories of Cosby drugging and/or assaulting them. Then a deposition of Cosby for the Constand civil suit, in which he admitted to acquiring drugs (quaaludes) to give to women he sought for sex, was released by a judge in the summer of 2015, at the request of the Associated Press.
In December 2015, local District Attorney Kevin Steele cited Cosby’s unsealed deposition as “new evidence” when he filed the charges against Cosby, just weeks before the statute of limitations was to expire.
In a he-said-she-said case such as this, the complaining witness — Constand — will be the key witness. The prosecution sought to call 13 other accusers to testify to Cosby’s alleged “prior bad acts,” but Judge O’Neill has allowed only one to testify — known by the pseudonym “Kacey” — after ruling that her story (similar to Constand’s in some details) can be heard by the jury because its “probative” value outweighs any potential for unfair prejudice.
So the jury won’t hear the stories under oath of the other dozen witnesses, let alone all those who have accused Cosby. “(The judge) gave the defendant a big break — it was a compromise weighted in favor of the defense and against the prosecution,” says James Cohen, a law professor at Fordham University in New York.
“Kacey,” who is represented by Gloria Allred, the women’s rights lawyer, said at a January 2015 press conference arranged by Allred that she knew Cosby because she worked for his agent. She says she met Cosby for lunch at the Hotel Bel-Air in 1996 to discuss her career ambitions. When she arrived, Cosby, dressed in a bathrobe, offered her wine and “a large white pill” to help her “relax,” that she took after he assured her it was safe. She says she woke up in a bed next to Cosby, who was naked.
District Attorney Steele was elected in November 2015 after promising to pursue Cosby under Pennsylvania’s unusually lengthy statute of limitations for sexual assault.
The prosecution’s case is expected to focus on a “three-legged stool,” according to former Pennsylvania prosecutor Dennis McAndrews : Constand’s testimony, “Kacey’s” testimony and Cosby’s own words about his behavior with women as taken in his deposition.
“The most important aspect of the case will be the credibility of the accuser,” says McAndrews. “If most jurors find her to be credible the evidence from the other two legs of the stool can be used by jurors who are firmly in favor of conviction to attempt to convince other jurors that (the prosecution) has proven its case beyond a reasonable doubt.”
Still, Steele is going to have a tough time, Cohen predicts. “He has to rely on the second witness (“Kacey”), and he has to rely on all the other accusers, whom he can’t mention unless the door is opened by accident, and then that’s a potential problem for Cosby,” Cohen says.
Allred agrees that the case “is not a slam dunk” for the prosecution. Proving guilt beyond a reasonable doubt is always a challenge, she says, “but especially for a prosecutor who is up against a rich and famous celebrity who can afford to spend millions on his defense.”
Bloom says there’s one fact of the case that could benefit the prosecution. “I do think that Cosby’s contemporaneous admission to the police of sexual contact with Constand, who turns out to be gay, is devastating for him.”
Cosby’s team is headed by Philadelphia lawyer Brian McMonagle and Los Angeles lawyer Angela Agrusa. Their strategy is likely to focus on the details in Constand’s story they believe are holes that could lead to reasonable doubt. For instance, he says, she told police she went to Cosby’s house twice and that she left — embarrassed — after he touched her inappropriately the first time. But then she returned after he invited her to dinner.
“Her story is incredible on its face,” Slotnick says. “She was the terrified victim of sexual abuse the first time, and then after he invites her back and tells they’re going to be alone, tells her to wear ‘comfortable clothing,’ she went back anyway? And he gives her pills to take and she does? Why would you go back to a predator’s house when he has practically told you something is going to happen of a sexual nature?… There are lots of questions, and they add to reasonable doubt.”
Those are all “powerful pieces of evidence” that “argue strongly not just for consent but reasonable doubt,” says Cohen.
“If most jurors do not find (Constand) to be credible, the other two legs of the stool are unlikely to sway the jury toward conviction, and a finding of reasonable doubt becomes more likely,” says McAndrews.
The other lawyers
The Cosby case is clogged with lawyers. Besides the prosecution and defense attorneys (Cosby has employed multiple lawyers since 2014), there are half-dozen other lawyers who represent some of the other accusers who have filed civil suits against Cosby in various courts around the country. Even Cosby’s former lawyers have lawyers. For a while, Cosby had a lawyer, Monique Pressley, whose job included going on TV to defend him.
Allred is the main player in this crowd: She represents more than 30 of the Cosby accusers. While she will be in the courtroom when her client “Kacey” testifies, she will have no formal role in the proceedings. But she’s never been shy about talking to the media about the case outside the courtroom.
Moreover, she has used the Cosby case as Exhibit A in her ongoing effort to change state rape laws. So far, she’s helped persuade California, Colorado and Nevada legislatures to either eliminate or extend statutes of limitation on certain rape and child molestation cases, so that accusers can pursue defendants in criminal court years after alleged assaults.