Bill Cosby’s sex assault case resets
A look at what has happened so far, and what you can expect as high-stakes retrial opens today
A look at what has happened so far and what you can expect in retrial
Opening statements in Bill Cosby’s retrial on sexual assault charges begin in suburban Philadelphia Monday in what all sides hope will not be a rerun of the deadlocked jury that ended Cosby’s first trial last June.
Given that headlines about the former “America’s Dad” TV comedian/icon have been landing regularly since October 2014, and given the constant legal back-and-forth about the case since he was charged in December 2015, a recap is in order.
The accusations
Cosby, 80, is charged with three counts of aggravated indecent assault in connection with an encounter with former Temple University basketball manager Andrea Constand at his home outside Philadelphia in early 2004.
She says he drugged and molested her. He says he gave her cold medication and their encounter was consensual.
She reported the encounter to police a year later; the then-district attorney declined to prosecute, citing lack of forensic and other evidence. So she sued Cosby in civil court, he answered
questions in a deposition, and they settled in 2006. The settlement was sealed.
After dozens of accusers started going public against Cosby, the Associated Press persuaded a judge to release portions of the deposition in which Cosby acknowledged acquiring drugs to give to women he sought for sex.
Why is Cosby being retried?
Because the jury in his first trial, after six days of testimony and five days of deliberations, could not reach a unanimous verdict on any count.
After Judge Steven O’Neill declared a mistrial, District Attorney Kevin Steele vowed he would retry the case.
Which side has the advantage?
Criminal defense attorney Jonathan Mandel, a former prosecutor and a former public defender, says the usual rule is that whomever got the most juror votes in the first trial has the advantage in a retrial. But the votes in Cosby’s first trial were mixed, and rulings in the retrial could benefit either side.
“Some of the jurors said there was a 10-2 split for conviction, which would obviously indicate the prosecution would have an easier road,” Mandel says. “Other jurors reported an almost even split, which would indicate an advantage to the defense since half of the jury viewed the case as weak. ... (But) predictions based on the first trial are problematic, since the evidence in the retrial may be vastly different.”
Another former prosecutor-turned-defense attorney, Lisa Houlé, says the defense usually has the advantage because the case is older.
“The defense now knows firsthand what the (accuser) will say and how she will say it,” Houlé says. “They can use that knowledge to their advantage in a second trial. And they (can use) the testimony from the first trial to impeach her because rarely will a witness remember every detail from a first trial.”
Why does this retrial matter?
Because this is the only criminal case made against Cosby out of 60 accusa- tions from around the country, all of them too old to prosecute.
Many if not most of Cosby’s accusers define justice as a criminal conviction and prison for Cosby, which would most likely be a life sentence given his age and health.
Why did the first trial go wrong?
There have been conflicting reports from jurors about why they were stymied. But at least one juror, Bobby Dugan, said in interviews that the first trial failed for a common reason, especially given the time elapsed since the alleged crime: lack of substantial evidence.
At the first trial, there was no rape kit, no DNA evidence, no toxicology tests, no witnesses, no semen-stained clothes, no viral videos. There won’t be any of those at the retrial either.
Who’s new in the retrial?
Judge O’Neill is back. Steele is back. Andrew Wyatt, Cosby’s spokesman and walk-to-courtroom escort, is back. But Cosby has a new legal team, led by celebrity lawyer Thomas Mesereau, who also defended Michael Jackson.
The jury is new, of course: seven men and five women; 10 are white and two are black. That means the retrial jury, in racial and gender makeup, looks exactly like the jury that deadlocked, although it does skew somewhat younger.
What has changed outside the courtroom?
The retrial is taking place in the wake of the Me Too movement to call out sexual harassment and assault and after scores of powerful men in multiple industries have been felled by credible accusations (but no criminal charges yet) of harassment and repulsive behavior.
But under American criminal court rules, what happens outside the courtroom is supposed to stay outside the courtroom.
“The judge appears to be trying to keep as much of the Me Too sentiment out of the trial, but there is only so much he can do,” says Chicago trial attorney Andrew Stoltmann.
What has changed that could help the prosecution?
In the first trial, Steele sought to call a dozen other Cosby accusers to testify against Cosby about what he allegedly did to them, to establish a pattern of “prior bad acts.” O’Neill let him call only one other accuser.
For the second trial, O’Neill has allowed Steele to call five other accusers to bolster Constand’s accusations, in- cluding former model Janice Dickinson, one of Cosby’s most bitter accusers.
But he delayed a decision on whether to allow witnesses who could corroborate the testimony of these five other accusers; O’Neill said he would make a decision once the trial is underway.
What has changed that could help the defense?
O’Neill made two key rulings that could help bolster defense efforts to undermine Constand’s credibility.
Cosby will be allowed to call Marguerite Jackson to testify that she heard Constand, her friend and co-worker, talk about “framing” a celebrity to get money before she went to police in 2005.
At the first trial, O’Neill decided Jackson’s testimony would be hearsay and blocked it, because Constand denied knowing her. Constand has since remembered she knew a woman as “Margo,” but Constand’s lawyer insists Jackson is not telling the truth. O’Neill said he could revisit Jackson’s testimony after Constand takes the stand at the retrial.
Stoltmann says Jackson’s testimony could have a “seismic impact” on the case.
O’Neill also ruled that jurors can hear how much Cosby paid Constand in their 2006 civil settlement. Cosby’s lawyers believe allowing the jury to hear more details about the payoff will bolster their argument that Constand accused Cosby to make money.
Conversely, O’Neill blocked prosecutors from introducing testimony about the negotiations between Cosby and Constand over the settlement, which Steele believes will reveal Cosby’s state of mind and “consciousness of guilt” during those negotiations.
What is still up in the air?
One crucial question is what Cosby said in the deposition he gave for Constand’s civil suit a dozen years ago, acknowledging he obtained drugs to give to women he sought for sex. Prosecutors believe the deposition helps establish Cosby as a serial predator with a pattern that fits what Constand says he did to her.
But O’Neill hinted during a pretrial hearing last week that he might keep jurors from hearing this testimony from the deposition. He said he won’t rule on that until it’s brought up at the retrial.