At Cosby trial, only 1 woman gets a say
3 years and 60 accusers later, criminal case rests on Constand testimony
As the Bill Cosby sex scandal spread, flaring into a media firestorm, the woman best positioned to confront him in a criminal court kept returning to her tattoo artist.
Thickly rendered lines twist and curl up Andrea Constand’s forearm, then past her elbow. On her upper left arm she had a brilliant pink gladiolus etched into her skin.
Constand had seen Lili Bernard, another woman who has accused the comedian of drugging and sexually assaulting her, carrying the spiky flower at a Cosby protest. Bernard said her friend was inspired.
In Latin, the flower’s name means a small sword. Now the woman with the sword flower on her arm is the central figure in one of the most highly anticipated trials in recent history, a potential reckoning for an entertainment legend whose legacy as “America’s Dad” lies in tatters. The trial that starts Monday with jury selection will determine whether Cosby drugged and sexually assaulted Constand, the only woman to have her allegations against Cosby heard in a criminal court.
The proceedings cap a nearly 21/2-year stretch that has seen Cosby, now 79, accused of sexual misdeeds spanning five decades by at least 60 women, stripped of
dozens of honorary degrees and shunned by much of the entertainment world that once fawned over him. Cosby has consistently denied that he sexually assaulted or drugged any women, but the allegations have prompted several states to extend their statutes of limitations for sex crimes, and even his “Little Bill” children’s works now appear on the list of books most often targeted for removal from libraries.
Once a reliably outspoken celebrity, as well as television’s biggest star, Cosby is likely to be mute at his trial. He has professed his innocence all along but said he doesn’t want to testify — a common strategy for criminal defendants. Instead, he’ll cede center stage to a lanky Canadian jock who works as a massage therapist for cancer patients and whose appearance before the jury will be critical in a case hampered by a lack of physical evidence or a police report filed at the time of the alleged crime. It all rests on Constand, now 44, a woman Cosby met and befriended when she was a staffer for the women’s basketball squad at Temple University, and invited into his home one night 13 years ago.
‘The incident with Mr. Cosby’
This account of the Cosby legal saga from inception to criminal court is drawn from a review of thousands of pages of court records, including deposition testimony and transcripts of police interrogations, as well as interviews with more than two dozen people connected to Cosby or Constand. The criminal charge — aggravated indecent assault — harks back to a late night and early morning in 2004 at Cosby’s estate in Elkins Park, Pa., 15 miles from the Montgomery County courthouse where testimony in his trial is set to begin June 5 before a sequestered jury.
But it wasn’t until a year after that night — in early 2005, in Toronto — that the case began to develop. Constand had moved there to get her life in order.
But, she later told police, she was having bad dreams.
She’d spent much of her life in gyms and locker rooms. She was a superstar on the high school basketball team in Scarborough, a Toronto suburb, a 6-foot scoring machine who averaged an astonishing 30 points per game. She became Canada’s most highly prized women’s college recruit. She landed a scholarship to play basketball at the University of Arizona and went on to play professionally in Italy. Eventually, she moved to Philadelphia, taking a job as an operations manager for the women’s team at Temple, where she worked from late 2001 to early 2004, and met one of the world’s most famous men. Cosby was for years the public face of the university, a member of the board of trustees and a frequent presence on campus.
After leaving Temple, Constand started studying massage therapy at a school in Toronto. But her nightmares were getting in the way, she told police.
Her mother described her nighttime torment as “post-traumatic stress,” Constand told police. The cause, she said, “was the incident with Mr. Cosby.”
In attempting to untangle what happened that night in 2004, the investigators asked about Constand’s sexual orientation. She told them she is gay, a point that could be used at trial to bolster her contention that she wouldn’t have consented to sexual contact with Cosby.
But her answer also revealed a more complicated set of facts that could be used by the defense to undermine prosecutors’ efforts. Constand said an on-again, offagain relationship with a woman had ended right about the time of her disputed sexual encounter with Cosby. But she’d also had relationships with two men, she said, including a two-year relationship that involved “some sexual contact.”
Statements made by Cosby and Constand, particularly some of the inconsistencies in her statements, will be pored over in granular fashion during the trial. But the basic outlines of their accounts are remarkably similar. Cosby, nearly 36 years her senior, became a mentor. They exchanged gifts. Sometime in January or February or 2004, during a dinner at his estate, Cosby gave Constand some pills and they had sexual contact. He says it was Benadryl; Constand’s attorneys have suggested it was something much stronger.
Constand contacted two Philadelphia-area lawyers to help her, Bebe Kivitz and her partner, a dogged courtroom advocate named Dolores Troiani. Troiani, a former prosecutor, said in a recent court hearing that years ago she was the first woman to try a rape case in Chester County, Pa. In those days, she said, defense attorneys pressed her about whether the victim had had an orgasm.
Constand and Troiani were unable to persuade the district attorney, a politically ambitious lawyer named Bruce Castor, to bring criminal charges against Cosby. In February 2005, Castor issued a news release saying there wasn’t enough evidence to gain a conviction.
“I am still furious about it,” Troiani testified during a pretrial hearing last year in the Cosby case.
Thwarted in the criminal arena, Constand and Troiani filed a civil lawsuit against the famed comedian. The suit would eventually settle for an undisclosed amount in 2006, but in the course of that case, the lawyers laid the groundwork for the much larger scandal to come.
The lawsuit got publicity, and Troiani’s phone began to ring. Beth Ferrier, a former model, called from Denver to talk about the 1980s, when she says Cosby spiked her coffee and she woke up in a parked car with her bra undone. Donna Motsinger saw the Constand case being discussed on “Larry King” and rang Troiani’s office from the Southwest, to discuss the night in the early 1970s when she says Cosby drugged her in a limo and she woke up naked in her bed. Kristina Ruehli called from New England to say Cosby had slipped something into her drink in the mid-1960s and she’d awakened to find him trying to force his penis into her mouth while she lay naked.
The women, 12 in all, came forward anonymously as Jane Does. They got numbers — Jane Doe No. 1, Jane Doe No. 2 and so forth — and as the years went along those numbers came to be a source of pride for some of them.
“We kind of went through it bursting through the saloon doors headfirst,” Ruehli, who became Jane Doe No. 12, said in a recent interview. “We were vetted. We were the chosen ones.”
The lawsuit settled before any of the Jane Does could testify. Ferrier, who had been desperate to meet and bond with Constand, was furious.
Many of them hadn’t spoken to the media or to each other. For nearly a decade, they essentially disappeared from public view.
Jane Does emerge
In early 2014, Roland Martin, a TV commentator, got a call from Bill Cosby. Martin, known for his outspoken views on race in America, said Cosby was planning an event in Philadelphia and wanted to see whether Martin would serve as master of ceremonies.
Their plans never came to fruition, but what stuck with Martin about their talks was Cosby’s energy and ambitions. He was full of big plans. He wanted to do public-service announcements, connect with other African American celebrities and hold monthly donor meetings, Martin said. Cosby had comeback projects in the works.
Less than a year later, it all came crashing down after a Philadelphia Magazine reporter posted a video in October 2014 of the comedian Hannibal Buress telling an audience to Google “Bill Cosby rape.” Buress had made the crack before. This time, it went viral.
Constand was living in Canada in relative obscurity at the time, practicing massage therapy and doting on her standard poodle, Madeleine. She could often be found biking in the countryside around Toronto or hiking. She was happy to be out of the public eye, friends say. (Constand declined to be interviewed for this report.)
But as more Cosby accusers came forward, everything changed. She’d never met most of the women who had agreed to testify in her lawsuit, but now she found some comfort in connection. One day in early 2015, she called Motsinger, Jane Doe No. 1 on some of Troiani’s lists.
“I was shocked by the numbers [of accusers going public] and she was, too,” Motsinger said in a recent interview.
Constand started traveling to Taos, N.M., to stay with Motsinger, who thought of the tall Canadian “like a daughter.” Motsinger, now 75, describes Constand as deeply spiritual, an enthusiastic yoga practitioner and meditator, calm and self-assured — traits that might serve her well under cross-examination.
Cosby’s accusers formed a Facebook group, and exchanged encouragement and tidbits about their lives. Constand posted photos on her own Facebook page, including one in October 2015 — two months before Cosby was criminally charged — with a bracelet that reads, “consent is” next to the caption, “It’s a conversation away.” She attended the women’s march in Washington after the presidential inauguration in January, but drew no attention to herself, said a friend who visited with her on that trip.
Constand set up boundaries, acquaintances say. Even with friends such as Lili Bernard, an artist in Los Angeles, she preferred not to discuss Cosby. When she visited Bernard, “Dre,” as Constand’s friends call her, was more into playing basketball with her kids, Bernard said.
Bernard, who says she was drugged and raped by Cosby after guest-starring on “The Cosby Show,” says she took Constand to Hollywood’s Walk of Fame. As they were nearing Cosby’s star, someone tried to push pagan literature into Constand’s hands. “No, I believe in Jesus Christ,” Constand said, according to Bernard.
Constand was forever using a certain phrase, Bernard recalled: “the shield of faith and the sword of the spirit.”
“The ink on her body is like a symbolic armor of her spirit,” Bernard said.
The emergence of so many accusers exerted public pressure on Cosby. But nothing they said carried the same weight as Cosby’s own words. In July 2015, the New York Times, and later The Washington Post and the Associated Press, printed detailed articles quoting Cosby’s testimony from once-sealed deposition testimony in Constand’s decade-old lawsuit. In the deposition, Cosby admitted acquiring qualuudes to give to women with whom he wanted to have sex. He also spoke almost boastfully about how he set a romantic mood for Constand’s visit with a fire and wine at his house, and how he touched her vagina and breasts.
Cosby’s defense attorneys fought vigorously to keep the deposition out of the upcoming trial — and they succeeded in blocking much of the salacious testimony about other Cosby accusers. But the testimony about Constand will be admitted, giving prosecutors a potent weapon in their quest to persuade jurors that Cosby drugged Constand.
“That’s called soaking yourself in gasoline and dancing around the campfire,” said George Parry, a prominent Philadelphia defense attorney. “All you’ve got to do is substitute your rape drug of choice.”
Kevin Steele, then the top assistant in the district attorney’s office, sought out Troiani to see whether Constand would testify in a criminal case against Cosby.
Later that year, he ran for district attorney against Castor, who’d left office and was now trying to win back his old job. Steele’s campaign slammed Castor, airing an ad that said he was “not looking out for the victims” of the famed entertainer. (Cosby’s defense team cited the heavy local coverage of Steele’s campaign in its successful bid to select a jury from the Pittsburgh area.)
Ferrier, the former Denver model, says she spoke with Constand occasionally in those days, and encouraged her to testify against Cosby.
“Do this for all of us,” Ferrier told her. “Don’t be afraid. Face him.”
Less than two months after Steele’s election victory, Montgomery County formally charged William H. Cosby Jr.
Race enters the discussion
Even though the Cosby trial is situated in Pennsylvania, it has shaped up in some sense as a showdown between supercharged female attorneys from Los Angeles.
Gloria Allred, the media-savvy feminist attorney, has orchestrated many of the public appearances by Cosby accusers. She represents many of the additional accusers whom prosecutors had wanted to call as witnesses to establish a pattern. Judge Steven T. O’Neill handed the defense a major victory by ruling that only one can testify: “Prior Victim Number Six,” an Allred client who is a former talent agency executive assistant and goes by the pseudonym “Kacey.”
Defense attorney Angela Agrusa, a polished and telegenic partner at Liner, an L.A. firm, has been paired with a high-powered Philadelphia defense attorney, Brian McMonagle.She recently told the Hollywood Reporter that she may employ a theory of “false memory creation” to undercut Cosby’s accusers.
“I can’t identify one other case in which the public has so conclusively come to the verdict of guilty,” Agrusa said.
Cosby’s wife, Camille, has not appeared at pretrial hearings but has been actively engaged in shaping strategy behind the scenes, according to people close to the Cosbys. Throughout the scandal, the comedian has struggled to change public perception, finding few willing to defend him in public.
“I am aware of representatives of Cosby reaching out to prominent African Americans to speak up on his behalf,” Martin, the African American commentator, said. “And they have not done it.”
Martin said he thinks that Cosby — unlike another prominent African American defendant, O.J. Simpson — has not garnered support from large numbers of black leaders because of lingering resentments. “O.J. was a symbol of black oppression in the criminal justice system,” he said. “O.J. was simply the conduit.”
Cosby, on the other hand, may still be feeling blowback from chiding African American youths who wore “pants down around the crack” and poor blacks who steal “poundcake.” A federal judge who unsealed a portion of Cosby’s deposition noted the “stark contrast” between the contents of the court file and Cosby holding himself out as “a public moralist.”
Still, in the waning days before the trial, Cosby has sought to put race front and center. His daughter, Ensa, released a recorded statement to a nationally syndicated hip-hop and current events radio program, decrying what she called the “public lynching” of her father and saying racism played a “big role” in his scandal. Asked about her remarks on SiriusXM radio, Bill Cosby said: “I just truly believe that some of it could very well be that.”
In Los Angeles, Bernard — the Cosby accuser — fumed, saying the Cosbys were disparaging African Americans who were lynched during the Jim Crow era. Bernard, who is Afro-Latina, has gotten to know Kacey, the accuser set to testify at the trial.
“She cries a lot,” Bernard says. “She shakes. She’s too scared to reveal her name.” But there’s one other thing, Bernard notes: Kacey is African American. So are at least a dozen of the 60 women who have publicly accused Cosby.
Most of these women are not expected to attend the trial. Some can’t afford it. Some can’t bear it. But a few are quietly making plans to be there.
“I’m just looking forward to our day in court,” said Janice Baker-Kinney, a former Reno bartender who says she was drugged and sexually assaulted by Cosby and was one of the 12 past accusers blocked from testifying at the trial. “It’s for Andrea. In a way, it’s our day, too.”
Bill Cosby leaves the Montgomery County Courthouse in Norristown, Pa., after a 2016 hearing related to the assault case.