Cosby’s fate in the hands of jurors
The defense calls just one witness, and the comedian doesn’t testify. Closing arguments get heated.
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.”