Bill Cosby’s trial: What’s next?

There might be key dif­fer­ences from the first sex­ual as­sault trial that could af­fect the out­come

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

A court­room re­match is ex­pected in the sex­ual as­sault case.

They al­most surely will meet again in a court of law.

One more time, the lanky for­mer jock with the loose-limbed gait and the mound of curly hair is likely to sit across a court­room from the lum­ber­ing and ag­ing co­me­dian who has made an el­e­gant wooden cane his sig­na­ture prop on the most dan­ger­ous stage of his sto­ried ca­reer.

The mistrial de­clared Satur­day morn­ing in Nor­ris­town, Pa., set the scene for a court­room re­match be­tween An­drea Con­stand, a for­mer women’s pro­fes­sional bas­ket­ball player, and Bill Cosby, the comic leg­end who she says drugged and sex­u­ally as­saulted her. Even though the machi­na­tions of a re­trial would be han­dled by at­tor­neys, the ul­ti­mate de­ci­sion of the next panel of ju­rors will be, once again, heav­ily de­pen­dent on their as­sess­ment of Con­stand and Cosby.

As one of the ju­rors in the first trial said dur­ing jury se­lec­tion in this case so bereft of phys­i­cal ev­i­dence, the saga boils down to a mat­ter of “he said, she said.”

“It’s ob­vi­ously more dif­fi­cult for the de­fense to find some new sur­prises.” Den­nis McAn­drews, a for­mer Philadel­phia-area pros­e­cu­tor, on the ex­pected Bill Cosby re­trial

It’s likely that Cosby’s de­fense team will try to block a new trial, but le­gal ex­perts say they are un­likely to pre­vail. The re­trial is ex­pected to bear many sim­i­lar­i­ties to the first trial, but there might be key dif­fer­ences that could af­fect the out­come.

The jury that said it was “hope­lessly dead­locked” on Satur­day was se­lected in Pitts­burgh, then bused to sub­ur­ban Philadel­phia and se­questered dur­ing 11 days of tes­ti­mony and de­lib­er­a­tions. De­fense at­tor­neys had pushed to se­lect a jury from another county be­cause of in­tense pre­trial pub­lic­ity in Mont­gomery County, Pa., where District At­tor­ney Kevin Steele, dur­ing his 2015 elec­tion cam­paign, had been crit­i­cal of one of his pre­de­ces­sors for not prose­cut­ing Cosby.

It’s pos­si­ble the next jury could be se­lected in a dif­fer­ent county so as not to place too heavy a bur­den on Al­legheny County, where Pitts­burgh is lo­cated, said Den­nis McAn­drews, a for­mer Philadel­phia-area pros­e­cu­tor. McAn­drews sug­gested that a jury pool could be drawn from the Har­ris­burg area of Dauphin County, or from the Scran­ton area of Lack­awanna County.

The sat­u­ra­tion cov­er­age of Cosby’s mistrial is sure to com­pli­cate jury se­lec­tion. Tele­vi­sion satel­lite trucks clot­ted the street in front of the pre-Civil War stone court­house in Nor­ris­town. Gran­u­lar de­tails of the ev­i­dence were splayed across news­pa­per front pages and web­sites, parsed on ra­dio talk shows and pored over in du­el­ing spin con­tests.

Still, le­gal ex­perts say, it won’t be im­pos­si­ble to find 12 peo­ple to sit in judg­ment of Cosby, who turns 80 next month.

“You al­ways find peo­ple who just don’t pay that much at­ten­tion to the news or are able to set aside what they’ve heard,” said McAn­drews, who suc­cess­fully pros­e­cuted John E. du Pont, the chem­i­cal for­tune heir, for mur­der.

Steele, the lead pros­e­cu­tor, tends to be cau­tious in his pub­lic state­ments. But on Satur­day, mo­ments af­ter the mistrial was de­clared, he gave an inkling of his confidence level go­ing into Round 2. He told a room full of re­porters that the last time he re­tried a case af­ter a mistrial — in 1992 — he won a con­vic­tion.

Steele, who is a ca­reer pros­e­cu­tor, will have in­sights in the re­trial that he did not have in the first trial: He and his key wit­nesses have now got­ten a de­tailed view of the de­fense team’s strat­egy and its meth­ods of han­dling cross-ex­am­i­na­tions.

“It’s ob­vi­ously more dif­fi­cult for the de­fense to find some new sur­prises,” McAn­drews, the for­mer pros­e­cu­tor, said. “They want the el­e­ment of sur­prise.”

Yet the fun­da­men­tal po­ten­tial flaw in the case will re­main: Con­stand’s in­con­sis­tent state­ments to po­lice about mat­ters such as the date and cir­cum­stances of the al­leged as­sault, which she says took place in 2004 at Cosby’s gated es­tate in tony Elkins Park, Pa.

Steele sought to tamp down the im­pact of those in­con­sis­ten­cies by en­list­ing a rape ex­pert as a wit­ness. Speak­ing in a calm and unemo­tional tone, Veronique Val­liere, a psy­chol­o­gist, tes­ti­fied that sex­ual as­sault vic­tims are fre­quently so trau­ma­tized that they can be con­fused about de­tails. She also tes­ti­fied that it’s not un­usual for as­sault vic­tims to main­tain con­tact with their at­tack­ers, an in­sight that seemed to di­rectly re­but de­fense sug­ges­tions that more than 50 phone calls Con­stand, now 44, made to Cosby af­ter the al­leged as­sault were proof that she was ly­ing about the al­leged at­tack.

How­ever, de­fense at­tor­neys may have un­der­cut Val­liere’s tes­ti­mony by sug­gest­ing she was bi­ased by show­ing ju­rors com­ments she’d posted on Face­book seem­ing to cel­e­brate a pros­e­cu­tion victory in the pre­trial fight over ev­i­dence in the case.

Ju­rors asked for sec­ond looks at tes­ti­mony from half of the pros­e­cu­tion’s 12 wit­nesses. But they did not ask to re­hear Val­liere’s re­marks or the tes­ti­mony of the other pros­e­cu­tion ex­pert wit­ness, a tox­i­col­o­gist who said that Be­nadryl — the allergy med­i­ca­tion Cosby says he gave Con­stand on the night of their sex­ual en­counter — has been used by rapists, in other cases, to make vic­tims sleepy and un­able to re­sist. The ju­rors’ de­ci­sion not to ask to re­hear the ex­perts’ tes­ti­mony could be an in­di­ca­tion that they ac­cepted their opin­ions at face value or, con­versely, that they were un­im­pressed. If pros­e­cu­tors con­clude the lat­ter, they might seek new or ad­di­tional ex­perts.

Some of the off­stage par­tic­i­pants also have played a role in shap­ing pub­lic per­cep­tions of the case since the mistrial was de­clared. Cosby’s wife, Camille — who skipped all but the de­fense clos­ing ar­gu­ment — is­sued a blis­ter­ing state­ment Satur­day. She ac­cused Judge Steven T. O’Neill, who over­saw the case, of “ar­ro­gantly” sid­ing with the pros­e­cu­tion.

O’Neill, an in­tense and folksy ju­rist who of­ten strolled the hall­ways dur­ing six days of jury de­lib­er­a­tions loudly whistling the theme from the tele­vi­sion show “The Left­overs,” seemed to side with the pros­e­cu­tion by al­low­ing de­lib­er­a­tions to drag on for 52 hours. But Camille Cosby’s crit­i­cism of him was puz­zling be­cause he is­sued an all-im­por­tant pre­trial rul­ing that seemed to help the de­fense and dealt a crush­ing blow to pros­e­cu­tors. In that de­ci­sion, O’Neill blocked tes­ti­mony dur­ing the trial by all but one of 13 women whom pros­e­cu­tors iden­ti­fied as past vic­tims and wanted to call as wit­nesses to es­tab­lish a pat­tern of con­duct by Cosby.

On the op­po­site side of drama from Camille Cosby, more than half a dozen women who have pub­licly as­serted that they were sex­u­ally as­saulted by the co­me­dian ap­peared in court as spec­ta­tors dur­ing the trial to sup­port Con­stand. Af­ter­ward the women, who have bonded in the past 21/ years since the 2 scan­dal broke and grew even closer dur­ing the trial, were up­beat.

Jewel Al­li­son, a New York­based artist, poet and ac­tivist who has said that Cosby drugged and sex­u­ally as­saulted her in the 1980s, hugged Con­stand in the court­room af­ter the mistrial an­nounce­ment.

“This was ba­si­cally just prac­tic­ing to get the ball in the bas­ket,” Al­li­son says she told Con­stand, a for­mer star high school, col­lege and Ital­ian pro­fes­sional league bas­ket­ball player. “Next time is the big game.”

On Sun­day, Al­li­son went to church back home in New York.

“As you can only imag­ine,” Al­li­son said, “I’ve got a lot to praise God for.”

“This was ba­si­cally just prac­tic­ing to get the ball in the bas­ket. Next time is the big game.” Jewel Al­li­son, on what she told fel­low Bill Cosby ac­cuser An­drea Con­stand af­ter the mistrial an­nounce­ment

CHARLES MOSTOLLER/REUTERS

LU­CAS JACK­SON/REUTERS

TOP: Bill Cosby de­parts Satur­day af­ter a judge de­clared a mistrial in his sex­ual as­sault trial. ABOVE: Ac­cuser An­drea Con­stand walks along a hall­way dur­ing de­lib­er­a­tions. If there is a re­trial, as ex­pected, it could fea­ture ju­rors from a dif­fer­ent area and new ex­pert wit­nesses.

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