When Bill Cosby’s sexual assault retrial opens with jury selection Monday, two major factors will be at play that were absent at his first trial, which ended in a mistrial when jurors failed to reach a verdict on whether he had drugged and molested a woman 14 years ago.
At his first trial in June, prosecutors were limited to calling one additional woman who alleged abuse. This time, jurors will hear from five who say they were similarly abused by Cosby, the 80-year-old actor once known as “America’s dad” for his portrayal of a fatherly doctor on TV’s “The Cosby Show.”
The other big change is the rise of the #MeToo movement, which exploded in October — months after Cosby’s first trial ended — drawing attention to women’s accounts of sexual abuse and harassment by men in power, such as movie mogul Harvey Weinstein.
Legal experts say media coverage of the #MeToo movement probably will bolster the credibility of the woman at the center of the Cosby prosecution, Andrea Constand, 44, a former Temple University basketball staffer.
In testimony at the first trial, Constand said Cosby molested her at his home in suburban Philadelphia in January 2004 when she lost consciousness after taking pills he provided. Cosby’s defense has said the sexual encounter was consensual.
“If the obstacles of the prosecution at the first trial related to the credibility of the survivor and why Bill Cosby would act this way, then I think the #MeToo movement has provided a cultural context and validation of Constand’s account,” Daniel Medwed, a professor of law and criminal justice at Northeastern University in Boston, said in a phone interview.
“The movement is a game changer in terms of the jury,” he said. Widely reported stories of alleged misconduct by prominent men “have reinforced the concept that powerful people do engage in sexually corrosive and abusive behavior.”
Lynn Hecht Schafran, an expert in gender issues affecting courts, said in an interview that she expects defense lawyers to question potential jurors about their views on sexual abuse in light of the #MeToo movement.
“I would think that there will be a much lengthier jury selection and a lot of delving into the question of whether potential jurors can follow testimony with laser-like focus on this case rather than having their minds made up because of what they’ve been reading and listening to,” said Hecht Schafran, senior vice president of Legal Momentum’s Women’s Legal Defense and Education Fund in New York.
Cosby is being retried on three counts of aggravated indecent assault relating to the 2004 incident with Constand. Though not part of the criminal case, dozens of other women have said they were similarly drugged and molested by Cosby over several decades, alleged abuses that fell outside of the statute of limitation for prosecution.
Cosby’s defense team, led by Los Angeles attorney Tom Mesereau, who defended Michael Jackson in his acquittal on child molestation charges, fought against allowing additional women to testify at the retrial, arguing that their testimony would be unfairly prejudicial and that lawyers could not properly prepare cross-examination of witnesses testifying about incidents that were decades old.
The prosecution had sought to call 19 women who said they were drugged and abused by Cosby in order to establish a pattern of behavior by the defendant. In a pretrial ruling, Judge Steven O’Neill set the number at five. Among them is expected to be model Janice Dickinson, who has alleged that Cosby drugged and sexually assaulted her in Lake Tahoe in 1982.
The defense also unsuccessfully sought to remove O’Neill as judge, claiming work by his wife, a social worker and advocate for abuse victims, created the appearance of bias on the judge’s part. At a pretrial hearing Thursday, the judge rejected the motion, saying he was upset that her work had been “trivialized” and insisting he was impartial.
The judge, who also presided over the first trial, has yet to rule on a number of defense motions regarding evidence Cosby’s lawyers want to present at the retrial, among them the terms of a 2006 settlement of a civil lawsuit Constand brought against Cosby, and the testimony of a former colleague of Constand who said the former basketball staffer once told her she could fabricate a story of abuse against a celebrity in order to get money.
Medwed, the Northeastern University law professor, said the defense was likely to focus on raising questions about Constand’s version of events. “In a case like this, all the defense has to do is create reasonable doubt about a survivor’s credibility and survivor’s account,” he said.
As in the first trial, jurors will have to decide whose account they find more credible, Constand’s or Cosby’s. In court for the pretrial hearing last week, Cosby looked relaxed and fit, wearing a dark blue pinstriped suit, red tie and matching handkerchief in his jacket pocket.
Dolores Troiani, who represents Constand, said in an interview that her client was prepared to take the witness stand at the retrial: “She’s ready to do this again. She’s telling the truth, and I don’t think she’ll have a problem telling the truth again.”
The retrial, which is expected to take up to a month, is expected to draw intense media coverage as well as daily demonstrations outside the Montgomery County courthouse by supporters of sexual abuse victims. The judge, in a reference to that activity, has said the jury will be sequestered and told lawyers on both sides to stay focused on the legal proceedings.