Race, celebrity and credibility converge
Bill Cosby’s sex assault trial will be a flashpoint for a host of charged issues
NEW YORK— The moment came suddenly, surprisingly. After nearly a year of sitting silently in a courtroom — and more than two years after a parade of women accusing him of sexual assault had stepped forward — Bill Cosby spoke out in court about the criminal charges against him.
“The Drake,” he said of the hotel where he is alleged to have plied a woman with champagne — then assaulted her after she passed out — “is in Chicago.”
The clarification, offered to correct a district attorney’s mistake during a pretrial hearing in December, rang out to surreal effect around the courtroom: What defendant helps a prosecutor identify the site of an alleged sexual assault?
One thing was clear: Cosby was not going to let others define his actions for him, even on the small matter of where an incident took place.
As Cosby’s sexual assault trial begins Monday in a suburban courtroom north of Philadelphia, the disgraced entertainer will try to seize the narrative, just as he did when he gave his first major interview about the case to Sirius XM host Michael Smerconish last month.
Cosby is charged with three counts of aggravated indecent assault stemming from a 2004 encounter at his Cheltenham, Pa., mansion with Canadian Andrea Constand, a former Temple University basketball coach, in which he allegedly initiated sexual contact after giving her wine and a pill. The outcome could determine whether the entertainer goes to prison for up to 10 years.
More than just a fall-from-grace tale, the felony trial will serve as a flashpoint for a host of charged topics — celebrity, criminality, race, gender and power, all intersecting in a way likely to evoke another, familiar courtroom drama. “When you put someone who was once so highly esteemed together with all these issues, it doesn’t feel like most cases,” said David Rudovsky, a law professor at the University of Pennsylvania and a defence attorney specializing in civil rights. “It feels like O.J. Simpson.”
As with that news extravaganza, this trial will address questions both sociological and legal: Is Cosby a successful entertainer victimized by money-hungry plaintiffs and a mob of outraged Twitter users, as he and his lawyers will seek to persuade? Or is he a lecherous symbol of male privilege, someone who for years leveraged his reputation as a beloved comedian and sitcom dad to assault women and cover his tracks?
There may be no titanic Johnnie Cochran-Marcia Clark faceoff awaiting in the Norristown, Pa., courthouse presided over by Judge Steven T. O’Neill. But the attorney antagonists will be a study in contrasts.
On one side is Kevin Steele, the Montgomery County district attorney, whose approach might be described as bureaucratic dryness. A longtime presence in the suburban courthouse, the prosecutor in pretrial hearings has managed repeatedly to turn the case’s most salacious details into staid legal language.
Opposite him, lead Cosby attorney Brian McMonagle cuts a different figure. A Philadelphia lawyer with a flair for theatrics, McMonagle has defended a church figure enmeshed in a sex scandal and a future NBA star. At earlier Cosby hearings, he often embraced a showman’s gestures; a witness-exclusion argument had him passionately invoking Robert Bolt’s conscience play A Man for All Seasons.
Both sides will focus on Constand, a Toronto woman, who, so far, during more than a year of legal hearings, has not appeared in the courtroom. In the coming days, Constand, who is white, will finally testify about the night Cosby invited her to his home and, she says, penetrated her with his fingers without her consent — testimony that could determine whether Cosby goes to jail.
“For the prosecution, the key is having Constand be rock solid,” said David Harris, a professor at the University of Pittsburgh and former attorney specializing in race and criminal justice.
“And the defence is going to want the jury to look hard at why it took her a year to come forward.”
The issue of sexual assault is one that many Americans may think about differently than they did when the accusations against Cosby started 2 1⁄ years ago, thanks to a flood of
2 news about former Fox News host Bill O’Reilly and U.S. President Donald Trump, whose leering remarks on an Access Hollywood tape sparked an international outcry.
Culturally, Cosby’s unravelling began with a routine at a Philadelphia club in October 2014, when comedian Hannibal Buress took on the longstanding but little-publicized accusations against his fellow entertainer. The routine went viral and prompted dozens of women, nearly all of whose claims had passed the statute of limitations, to come forward with accounts of alleged assaults.
Legally, it started in December 2015, when Steele, having just been elected on a platform promising to prosecute Cosby, initiated charges only days before a statute of limitations on Constand’s allegations was set to expire.
Since then, the proceedings have been winding their way toward Monday’s trial, with two key victories for the prosecution along the way.
One was a ruling from O’Neill this year allowing an additional accuser to testify against Cosby under Pennsylvania’s so-called Prior Bad Acts clause. (The prosecution had sought 13 such witnesses). Identified as Prior Alleged Victim Six, the woman said she visited Cosby at his bungalow at the Hotel Bel-Air in 1996, when he allegedly gave her a pill and violated her.
The judge also decided to admit deposition testimony from a Constand civil suit more than a decade ago in which Cosby admits to buying Quaaludes in order to have sex with women.
But the prosecution’s case contains problems, nonetheless. For starters, there is no physical evidence. And in the year during which Constand didn’t report the incident, she maintained intermittent contact with Cosby.
The defence will look to exploit those issues, and do anything possible to challenge Constand’s credibility — without going too far.
“If they go after her too hard, the jury will see her as victimized again and it will backfire,” Rudovsky said.
Celebrity will be a factor, too. The defence has suggested it will make Cosby’s celebrity and wealth an issue, citing the many civil suits brought against him — including one filed by Constand, in which she received an undisclosed settlement — as the primary motivation for the allegations. But this could have unintended consequences: In the current anti-elitist climate, can a millionaire icon really be portrayed as a victim?
The other question: What role will race play? In the Smerconish interview, Cosby intimated he believed racism was a reason for his prosecution. “I just truly believe that some of it may very well be that,” he said.
Yet overplaying that issue — with a jury that includes only two AfricanAmericans — could also backfire.
“Race in a trial is a hand grenade,” said Harris. “And when a hand grenade blows up, you don’t know where all the fragments will go.”