Updated Friday March 16, 2018
In just over two weeks, the first #MeToo-era, high-profile court case begins when Bill Cosby is retried on three counts of aggravated indecent assault in the Montgomery County Courthouse in Norrisville, Pa. Already, the aggressive gambits of the disgraced entertainer’s defence team—both in the court of law and in the court of public opinion—indicate that the upcoming legal battle will be more brutal and dramatic than his first.
That preceeding ended in mistrial in June 2017 with a deadlocked jury after six days’ deliberations. Cosby pleaded “not guilty” to charges that he drugged and assaulted Toronto native Andrea Constand in his suburban Philadelphia home in 2004. At the time, Judge Steven O’Neill declared the trial a legal “nullity.”
O’Neill continues to preside over the Commonwealth v William H. Cosby Jr. Montgomery Country District Attorney Kevin Steele again leads the prosecution. Cosby’s defence team, however, is new; prominent Philadelphia defence attorney, Brian McMonagle, a dramatic, voluble presence in the courtroom, withdrew last fall without explanation. Now Cosby is represented by the even more theatrical Los Angeles-based lawyer Thomas Mesereau, who is joined by co-counsels Kathleen Bliss and Becky James. Mesereau, known for blistering cross examinations, adheres to the template for celebrity defence established by Johnny Cochrane during the O.J. Simpson criminal trial: put as many witnesses for the defence as possible in the dock, except for the defendant. He made his name winning an acquittal in 2005 for Michael Jackson when the pop star was tried on multiple charges of child molestation. He has also successfully represented Mike Tyson and actor Robert Blake.
Mesereau failed in his pre-trial bid to get the judge to throw out the case on the grounds Constand was not a credible witness. By then, there were indications the case was being strategically played out in the court of public opinion as well. The 80-year-old Cosby was notably low-key before and during his first trial; he presented as enfeebled, carrying a cane and leaning on the arm of his publicist, Andrew Wyatt. The first case was tried before a jury that had been bused in from Pennsylvania’s Allegheny County and sequestered; there was concern a local jury pool would be biased due to intensive press coverage of the case. This time out, the jury will be comprised of people from the local community, with selection beginning on March 29.
It’s notable, then, that Cosby has since January been on a robust goodwill charm offensive in his hometown of Philadelphia, with a ready crew of publicists, reporters and camera crews in tow. Cosby, once a Philly local hero, has been photographed making friendly drop-in visits to local bakeries and barbershops; he has also posted images and videos of himself on Twitter, including one of him wearing gear of the Super Bowl-bound Eagles. In early January, after reporters were “tipped off” that he was dining at a local Italian restaurant, local media dutifully reported that Cosby told jokes over an entrée of penne and sausage: “He reminisced with his dinner companions—a childhood friend and a few publicists—about growing up at 10th and Parrish Streets, and welcomed other diners to stop by to snap selfies,” Philly.com reported.
Weeks later, Cosby made headlines again, this time for his “uplifting” oratory at a funeral in New York City attended by Oprah Winfrey. Hours after that, Cosby’s PR team gave media a head’s up about the comedian “surprise” performance at a Philly jazz club in the neighbourhood where he grew up; it was his first time before an audience since 2015, when he was forced into retirement. Wearing a hoodie with “Hello friend” spelled in bright letters, Cosby, sat on a stool and regaled the crowd with stories of his family, aging and his struggle with blindness. He also took at turn playing the the drums. According to The Philadelphia Inquirer, the audience “swarmed him afterward for selfies.” When asked when exiting the club if it is tough for him to go out into public since the scandal broke he said, “No. This is life and life changes….I go out.” He didn’t have fear of going out in public, Cosby said, adding: “I have never really called upon media to show up.” Asked about #MeToo, Cosby didn’t answer directly but instead mugged for the camera.
That the #MeToo movement has figured into pre-trial hearings isn’t surprising. Constand’s 2005 allegation against Cosby foreshadowed #MeToo by more than a decade: it was only after the former Temple University employee came forward publicly with allegations against the once-beloved entertainer that other women did the same; more than 60 would eventually accuse Cosby of drugging and raping them in incidents dating back three decades.
The prosecution sought to have 13 of these women testify in the first trial as so-called “prior bad-acts” witnesses to illustrate a pattern of alleged behaviour. Judge O’Neill allowed only one, Kelley Johnson, who told the court Cosby drugged and sexually assaulted her in 1996. Employing a different legal rationale, the prosecution asked for more than 19 women to testify to Cosby’s “sadistic sexual script.” On Thursday, the judge allowed five of these women to testify, allowing the prosecution to make the selection.
The notion that the #MeToo movement will create a more sympathetic climate for Constand has been questioned by her own lawyer. In an interview with The Daily Beast, Dolores Troiani expressed concern her client might be hurt by a possible blowback to #MeToo: “I’m just afraid of the backlash—because at some point there will be backlash,” she told the Daily Beast.
The defence has made it clear it plans to target Constand’s motivations aggressively, specifically that she’s “greedy.” In the pretrial hearing, Mesereau sought permission to call to the stand Margo Johnson, who describes herself as a former colleague of Constand’s at Temple University; Judge O’Neill blocked her from testifying in the first trial. In January 2018, Mesereau told the court —and by extension the media and public—that Jackson claims Constand once told her that she could fabricate allegation about being drugged and raped by a celebrity and receive a lot of money. During the first trial, Constand testified that she did not know Johnson. Last week, Mesereau told the court he’ll reference the 2006 civil settlement between Cosby and Constand governed by a non-disclosure agreement to prove “just how greedy this person was.” Days later, almost on cue, the New York Post reported Cosby paid Costand $3.5 million.
Through it all, the legal teams have exchanged allegations and insults. The defence has claimed that the prosecutors destroyed evidence, that improperly failed to disclose that they had talked to Jackson before the trial and allowed Constand to lie under oath during the first trial. Steele has described the pre-trial strategies of Mesereau and his co-counsels as “at best incompetent and otherwise unethical.” Opening arguments are scheduled for April 2. From what we’ve already seen, once again Bill Cosby won’t be the only one on trial.