At Cosby trial, only 1 woman gets a say

3 years and 60 ac­cusers later, crim­i­nal case rests on Con­stand tes­ti­mony

The Washington Post Sunday - - FRONT PAGE - BY MANUEL ROIG-FRANZIA

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.”

MATT ROURKE/AS­SO­CI­ATED PRESS

Bill Cosby leaves the Mont­gomery County Court­house in Norristown, Pa., af­ter a 2016 hear­ing re­lated to the as­sault case.

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