Norristown, Pa. — As expected, the pills entered as evidence in day four of the Cosby trial resurfaced at the start of day five on Friday, much like that gun in a Chekhov play. James Reape, a detective with the Montgomery County’s District Attorney’s Detective Bureau, returned to the stand to continue reading from a sworn deposition given by Cosby in late 2005 and early 2006 as part of a civil lawsuit filed by Andrea Constand, the complainant in the ongoing criminal trial.
The first segment read to the court dealt with the Jan. 16, 2005 telephone call Gianna Constand, mother to Andrea, made to the entertainer. Her daughter had just told her Cosby drugged and sexually assaulted her after giving her what he’d said was a “herbal medication.” According to Gianna Constand’s testimony on Wednesday, when she asked Cosby what drug he’d given her daughter, Cosby left the line; he returned to say he couldn’t read the prescription bottle label and would mail her the name on a piece of paper, which he didn’t do.
In the deposition, Cosby said he told Mrs. Constand he’d mail her pills from the same pack used in Jan. 2004—he still had it a year later, he said. Ten days after that phone call, on Jan. 25, 2005, Cosby was interviewed by Cheltenham Township police as part of an investigation into Andrea Constand’s charge that Cosby drugged and assaulted her. At that meeting, flanked by his lawyers, Cosby told law enforcement the drug in question was Benadryl. At the end of the interview, Cosby surprised the police officers by handing over a white pill, a green pill and one-and-a-half pink pills to law enforcement. The toxicology report on those pills was read in court on Friday. They found no controlled substances in one and two. The third, the pink pills, was determined to be diphenhydramine, better known as Benadyrl.
The results raised more questions. Why didn’t Cosby simply tell Gianna Constand he’d given Andrea the popular over-the-counter sleep aid? Pink Benadryl pills also didn’t match the blue pills Constand reported taking; the court had been told blue Benadryl tablets were sold in 2004. It also wasn’t clear why Cosby gave police pink pills when 10 days earlier he’d told Gianna Constand he’d mail her pills from the same pack.
The blue-pill, pink-pill mystery will likely remain unresolved—only one of the unanswered questions lingering as the prosecution rested its case on Friday. Before it did, the Montgomery County DA’s office highlighted part of the deposition that provided a trifecta of questions exposing the relationship between drugs, consent and power wielded by a celebrity like Cosby whose family-friendly public image was central.
In one exchange, Cosby was asked: “Do you agree it’s in your best interest that the public believe Andrea consented?” “Yes,” he answered.
“Do you believe there would be financial consequence if you gave her a drug and took away her ability to consent?” he was asked. “Yes,” he replied.
“Do you believe there would be financial consequences if the public believed the drug was something other than Benadryl?” “Yes,” he said.
The relationship between sexual assault, consent and intoxicants was a recurring theme on Friday. Clinical psychologist Dr. Veronique Valliere, brought in as an expert witness in “sexual assault, victim and offender dynamics, and victim response to sexual assault,” told the jury that use of intoxicants in a sexual assault exacerbates the confusion, self-blame, trauma and guilt typically experienced by victims of sexual assault, particularly when the offender is someone they know and like, or even love.
Such assaults are the norm, she told the court, contrary to the entrenched stereotype of the violent stranger lurking in the bushes. The instinct on the part of victims, she says, is to correct, to go back where it was, which is why showering after is so normal. “You want to get clean,” she said. Valliere also put the extended trauma of sexual assault in context: “When we hear it’s devastating, the devastation doesn’t happen in that moment, it happens over time.”
The way memory functions in assault was explained to the jury in relatable terms: “If we see movie, we won’t remember every detail, but we remember the story line.” A traumatic event like sexual assault confuses memories further, she says: “A victim remembers the details that are most important, not necessarily how long the assault lasted but how someone’s tongue felt in her mouth.” Traumatic events disorient and confuse memory, she said: “Over time, if you’re actively trying not to relive, you may lose a portion of your memories, though you remember what happened.”
In questioning Valliere, assistant Montgomery County DA Kristen Feden skated close to the facts of the Cosby case. She asked whether the effects of “digital penetration” were less traumatic than those of rape. Valliere said the opposite could be true: “The less a sexual assault is less like the stereotype of rape, the harder it is to identify as assault.”
Valliere also outlined examples that echoed the case, noting that status and wealth—or instances where the offender has ingratiated himself into the family—creates other problems. Who the offender is also plays a role, Valliere said, outlining a victim’s thought process: “Is this somebody people would believe would do this to me? Is this someone who could retaliate and hurt me professionally?” If the offender is well known, the victim takes on a lot of responsibility for the offender’s reputation, Valliere said. “They may want to protect his reputation, may choose to not to deal with it or think offender too powerful to be touched.” Cases where the offender is “valued, loved in community,” brings other problems: victims feel their value is less.”
Feden used Valliere’s statement as an opportunity to pose a hypothetical: “Let’s say someone is on the Board of Trustees…,” she began, a clear reference to Cosby’s role at Temple University, where Constand worked at the time of the assault. At that point, lead defence counsel Brian McMonagle leapt to his feet to object. He called for a mistral on the grounds the witness was “telling the jury the defendant was guilty.” Judge Steven O’Neill overturned the objection.
On cross-examination, McMonagle cut to the chase: “You’re biased in this case aren’t you?” he asked Valliere, showing the court her company’s Facebook page. It showed a photo of Cosby with a link to a Washington Post story about his criminal case being reopened. On the page, she made a few comments, including: “Victory, the case goes on.” Valliere denied being biased, but the imagery undercut the educative role she’d just played.
The court moved on to controversial segments of Cosby’s deposition that the defence had unsuccessfully attempted to keep out of evidence: his admission he’d give Quaaludes to young women he wanted to have sex with in the 1970s. “It made them what in those days was called high,” the celebrity said. The jury heard Cosby’s statement that his doctor (an LA gynecologist and cosmetic surgeon, though the jury didn’t hear that descriptor) prescribed the pills, legal only with a prescription, knowing the entertainer didn’t plan to take them. The popular club drug in the ’70s and ’80s was also known as a knock-out drug and aphrodisiac; director Roman Polanski used the drug to rape a 13-year-old girl in 1977. Cosby said he handed them out, knowing it was illegal to dispense; he said they were “like alcohol.” When Cosby was asked “Did you ever give any of those young women the Quaaludes without their knowledge?” his lawyer jumped in: “Object to the question,” he said.
The prosecution’s final expert witness, Dr. Timothy Rohrig, a forensic toxicologist, also talked of drug-facilitated sexual assault. First, he ran through the effects of diphenhydramine, or Benadryl, which he described as a central nervous system depressant—sleepiness, blurred vision, cottony mouth, stumbling, and poor muscle coordination. A recommended adult dose is 25ml, Rohrig said, noting it’s not clear how much Constand consumed. She reported Cosby gave her three blue pills, which, if Benadryl, would be 75ml. Cosby has said he cut one tablet in half to make it easier to swallow; that would make the dosage 37.5ml. The effects would be exacerbated with alcohol, Rohrig said, though Constand only took a sip of wine that night, which, he said, “wouldn’t have a significant effect.”
The prosecution moved on to include discussion of Quaaludes in the mix, though the attempt didn’t gain traction. Rohrig explained the drug has similar side effects as Benadryl but is no longer available in the U.S.; it can be procured in Canada, but only with a prescription.
Moving on to drug-facilitated sexual assault, Rohrig noted it was used to make victims compliant and easier to engage in sexual activity. He referenced the 2009 case of a London taxi driver who’d drugged women with Benadryl and champagne before attacking them. The prosecution asked about drugs that are central nervous system depressants that come in blue tablets. “Hundreds come in blue,” Rohrig said.
McMonagle rose for cross-examination. He seized it as an opportunity to create the last image of the prosecution’s case, one in which Benadryl is being used as part of consensual marital sex. He asked Rohig: “Hypothetically, at my house, with my wife, OK, she has three halfs of Benadryl. Would it be possible, after those three halfs, and she had some wine, to sit on the couch with my wife and have an intimate encounter…”
“I hope so,” Rohrig interjected, eliciting laughter in the courtroom. McMonagle continued: “…so she could go to sleep.”
“Yes,” said Rohrig. “Nothing further,” McMonagle said.
With that, the prosecution’s case was over. Judge O’Neill told the court closing arguments could be heard by Tuesday. That suggests the defence’s case will be minimal. That wouldn’t surprise. After the events of this week, and the questions that now fog the case, the defence may well be confident that the burden of proof beyond a reasonable doubt has not been met.
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