Cosby’s fate in the hands of ju­rors

The de­fense calls just one wit­ness, and the co­me­dian doesn’t tes­tify. Clos­ing ar­gu­ments get heated.

Los Angeles Times - - THE NATION - By Steven Zeitchik steve.zeitchik@la­times.com

NORRISTOWN, Pa. — Im­per­fect hus­band or “sick man”?

Vic­tim of ac­tivists or im­pe­tus for their cause?

A well-mean­ing ro­man­tic or a cal­cu­lat­ing predator?

Clash­ing views of Bill Cosby as­serted them­selves at his sex­ual as­sault trial here Mon­day, as the ca­reer pros­e­cu­tor look­ing to im­prison the en­ter­tainer and the f lashy lawyer hired to de­fend him faced off be­fore turn­ing over the case to the jury.

The pub­lic storm that be­gan in the fall of 2014 over Cosby’s sex­ual his­tory is on the brink of a le­gal res­o­lu­tion. In ju­rors’ hands now is the fate of one of the 20th cen­tury’s most beloved per­son­al­i­ties — and one of the 21st cen­tury’s most po­lar­iz­ing ones. A few weeks from his 80th birthday, Cosby could be pre­par­ing for a decade in jail if he’s found guilty on three counts of ag­gra­vated in­de­cent as­sault against An­drea Con­stand.

Also at stake are broader is­sues, in­clud­ing the re­spon­si­bil­i­ties and lim­its of ad­vo­cacy me­dia in the 21st cen­tury and the cor­rect re­sponses to sex­ual as­sault crimes. Few of the high-pro­file men ac­cused of such attacks, in­clud­ing ath­letes and en­ter­tain­ers, have wound up in jail; to ad­vo­cates, a guilty ver­dict for Cosby would be a wa­ter­shed mo­ment.

Cosby on Mon­day waived his right to tes­tify. While such a move was ex­pected — sex­ual as­sault de­fen­dants of­ten opt for si­lence, and Cosby had pre­vi­ously said he wouldn’t take the stand — it still re­moved the pos­si­bil­ity of a con­fronta­tion with Con­stand and a chance to re­spond in court to his ac­cusers.

In clos­ing ar­gu­ments, Kevin Steele, the Mont­gomery County district at­tor­ney who 18 months ago brought the first-ever crim­i­nal charges against Cosby, chron­i­cled what he por­trayed as a so­phis­ti­cated tac­ti­cal plan by the en­ter­tainer to at­tack the thenTem­ple Univer­sity bas­ket­ball em­ployee in 2004.

“By do­ing what he did on that night, he took away the abil­ity to con­sent,” Steele said of Cosby giv­ing Con­stand one and a half uniden­ti­fied pills be­fore dig­i­tally pen­e­trat­ing her.

Brian McMona­gle, a Philadelphia-based de­fense at­tor­ney who has in the past rep­re­sented high-pro­file re­li­gious fig­ures and bas­ket­ball stars, said the mat­ter boiled down to the na­ture of the re­la­tion­ship be­tween the two.

“‘Yeah it was ro­man­tic. Yeah he was giv­ing me sweaters. Yeah he was telling me how to wear my hair,’ ” McMona­gle said, imag­in­ing the voice of Con­stand. Re­turn­ing to his own voice, he added: “Just tell the truth. What are we do­ing here?”

The ar­gu­ments wound down six in­tense days of testimony in which the jury, made up of seven men and five women, heard from Con­stand, her mother, ex­perts and Kelly John­son, an­other ac­cuser per­mit­ted to take the stand. Cosby was heard from in­di­rectly — on recorded phone calls and via words from a po­lice in­ter­view and civil de­po­si­tion read aloud in court.

In his clos­ing, McMona­gle did not spend much time dis­cussing the night of the in­ci­dent at Cosby’s home. In­stead, he fo­cused on the larger re­la­tion­ship be­tween Cosby and Con­stand, how he be­lieves that could not have been the con­text for an as­sault, and what he says was the ac­tual rea­son for a trial.

“We know why we’re here. Let’s be real. Let’s look each other in the eye and talk about [it],” he said. “We’re not here be­cause of An­drea Con­stand. We’re here be­cause of them,” he said, rais­ing his voice, turn­ing and point­ing at a group of ac­cusers and ac­tivists sit­ting in the back of the court­room.

Later, Linda Kirk­patrick, a Cosby ac­cuser who was sit­ting in the group ad­dressed by McMona­gle, told The Times: “We’re not here be­cause of us. We’re here be­cause of his ac­tions,” re­fer­ring to Cosby.

McMona­gle of­fered a nar­ra­tive in which Con­stand had a con­sen­sual en­counter and was not plan­ning on mak­ing a charge un­til per­suaded oth­er­wise by civil at­tor­neys. “It’s sick­en­ing what hap­pens when lawyers get in­volved,” he said. “It’s sick­en­ing what’s hap­pen­ing here.”

Steele told ju­rors they needed to look only at the facts that night. “Drug­ging some­body to put them in a po­si­tion so that you can do what you want to do is not ro­man­tic. It’s crim­i­nal,” he said, as a screen be­hind him dis­played the words, “I have three friends for you to make you re­lax,” a ref­er­ence to Con­stand’s testimony about what Cosby al­legedly said to her be­fore hand­ing her the pills.

Though he fo­cused pri­mar­ily on the night, Steele also con­nected Con­stand to John­son, a Hol­ly­wood as­sis­tant who tes­ti­fied about an as­sault at the Bel-Air Ho­tel in 1996. In both cases, Steele noted, the women and Cosby “met through em­ploy­ment,” bridged a “sub­stan­tial age dif­fer­ence” and he gave them pills “to re­lax.”

Steele noted a power dy­namic at work too, say­ing that Cosby was “37 years [Con­stand’s] se­nior, a man she looked at as be­ing 10 years older than her fa­ther.”

The clos­ing ar­gu­ments were a sud­den crescendo at a trial that just Mon­day morn­ing had seemed poised for sev­eral more days of wit­ness testimony, with the de­fense be­gin­ning its case. But Cosby’s lawyers called just one wit­ness, a po­lice of­fi­cer who had tes­ti­fied for the pros­e­cu­tion, and asked him a few fol­low-up ques­tions.

With the bur­den of proof on the pros­e­cu­tion, Cosby’s lawyers ap­peared to feel they had done enough to dis­credit Con­stand and John­son. They also were re­ly­ing on the rule that John­son’s testimony and an­other linch­pin of the pros­e­cu­tion’s case — that Cosby in the past bought Quaaludes to pro­vide to women he wanted to have sex with — could only be con­sid­ered to es­tab­lish a modus operandi, not proof of his guilt.

About two hours af­ter it left for de­lib­er­a­tion, the jury re­turned with a ques­tion, ask­ing about the con­text in which Cosby in the civil de­po­si­tion called the pills his “friends” be­fore giv­ing them to Con­stand. The judge read back the rel­e­vant testimony, in­clud­ing Cosby say­ing “there was talk [with Con­stand] of ten­sion ... about try­ing to learn to re­lax the shoul­ders, the head,” and the jury re­turned to de­lib­er­a­tions.

On Mon­day, Cosby’s voice was heard for the first time in the trial as he an­swered a se­ries of yes/no ques­tions while of­fi­cially waiv­ing his right to tes­tify. He spoke the words loudly, with a lit­tle bit of a flour­ish.

Dur­ing the de­fense’s clos­ing, Cosby of­ten leaned for­ward in his chair, oc­ca­sion­ally re­act­ing with small nods. Con­stand sat in the front row of the gallery next to her mother, Gianna Con­stand, show­ing lit­tle ex­pres­sion.

McMona­gle made use of many parts of the court­room as he made his pre­sen­ta­tion. He paced, he ges­tured, he whipped his head around in dis­be­lief. At one point he stood at the wit­ness box and rested his head in his hand; an­other time he crouched down and got very close to Cosby’s face as he made a point.

He sought to dis­miss Cosby’s attempts to pay Con­stand’s grad­u­ate tu­ition. It was not, he said, an at­tempt to buy her si­lence on crim­i­nal mat­ters but sim­ply ev­i­dence of a flawed hus­band con­ceal­ing a se­cret from his wife, Camille.

“When you dance out­side of your mar­riage, you gotta pay the band,” McMona­gle said. “And he danced and she de­served bet­ter,” point­ing to Camille, who had joined her hus­band in court for the first time. McMona­gle said that while Cosby was “not per­fect” as a hus­band, what was hap­pen­ing was an in­jus­tice.

“I don’t care if he’s the worst co­me­dian in the world — this ain’t right,” he said. “But this is the life we lead right now; this is what we’ve be­come. Truth be­comes the lie and the lie be­comes the truth, and who’s the worse off for it?”

Steele coun­tered by cit­ing Gianna Con­stand’s testimony in which she quoted Cosby as say­ing that he wor­ried he would be per­ceived as a “sick man” — “by his own words,” Steele em­pha­sized.

“What­ever it was the de­fense was try­ing to sell you on this, you must look very closely at the cir­cum­stances,” Steele said to the jury. “To al­lege this is just some re­la­tion­ship that is go­ing to a dif­fer­ent level doesn’t make any sense.”

Matt Rourke As­so­ci­ated Press

BILL COSBY ar­rives at court with his wife, Camille. Cosby’s lawyer blamed ac­tivists for the charges against him, and said the co­me­dian’s ac­tions in the case could be at­trib­uted, in part, to him be­ing a f lawed hus­band.

David Maialetti Philadelphia Inquirer

AC­CUSER An­drea Con­stand, right, and her mother, Gianna Con­stand, ar­rive at court in Norristown, Pa. Both tes­ti­fied against Bill Cosby in the trial.

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