NORRISTOWN, Pennsylvania— After one week of testimony from the prosecution, it was time for the jury to hear the defense’s case in the sexual assault trial of Bill Cosby.
It lasted six minutes.
After promising a bombshell last week, the defense didn’t have much to add in their argument, calling only one witness to the stand before resting its case on Monday. Following testimony from Andrea Constand, the complainant in the criminal case, Constand’s mother, police officers, and another alleged victim, the question became whether or not Cosby himself would be called as a witness by the defense.
Cosby arrived at the Montgomery County courthouse assisted by a cane and accompanied by his wife, Camille. It was the first time she had joined him in the courthouse. While there was doubt from the very beginning that Cosby would testify, the defense wouldn’t confirm or deny that the defendant would speak up on the stand.
Before the jury entered the courtroom, Judge Steven T. O'Neill asked Cosby to identify himself with the raise of a hand. The judge then asked whether Cosby would testify, to which the defense explained that their client would not speak. It was ultimately Cosby’s decision to not speak under oath.
In as series of one word, “Yes” answers, Cosby told the judge that while he was advised to not testify during the trial, it was his ultimately his decision to remain silent following extensive council from his legal team.
The short back-and-forth between judge and defendant has been the only time the courtroom has heard Cosby’s voice during the trial, which began last Monday.
While Cosby not being called up to testify was not too much of a surprise, what followed was. The defense explained that they would only call one witness to the stand: Detective Richard Schaffer, who appeared as a somewhat combative witness for the prosecution last week. No other character witnesses would be called to the stand to testify for the defense.
Defense attorney Brian McMonagle asked Schaffer a few questions regarding statements the detective had taken from Constand, including one focusing on how sharp Cosby’s vision was at the time the initial complaint was filed in 2005.
Following the detective's’ testimony, the defense — much to the surprise of some in the courtroom — rested its case, called no further witnesses.
“Don’t let her declare victory”
McMonagle presented the defense’s case first, opening with an anecdote about Shake Shack.
“I get to Shake Shack… it was a beautiful day. When I get outside there are all these great parents with their kids. Its chaos out there. I grab my seat, looking at the chaos, and my eyes fix on this one table with a dad and daughter, who couldn’t be more than three,” he said.
“The dad is explaining to her about the milkshake. After every spoonful the father gives her a kiss. I looked at her looking at him and I missed those days. She was looking at him like she was looking at God — it’s the adoring eyes of a daughter looking at a dad. I thought to myself for a minute how that changes. They grow up in a blink of an eye…and those eyes change.”
Referring to his client, McMonagle added, “We’re not perfect, we try to be, but we’re not. Sometimes we lose our tempers, sometimes we’re wrong… You aren’t the adoring eyes of children, and when you’re looking over [at Cosby] you’re not looking over here as children. I told you that when you look over here you’ll see different things: You’ll see a great comedian, an artist, who taught us not only how to smile but how to love, and taught us how to love each other no matter what we look like."
He then implored the jury to understand that in order to come to a guilty verdict, they had to feel Cosby was guilty beyond reasonable doubt.
McMonagle began by prodding into what he characterized as holes in the Constand’s story. Last week, McMonagle said he uncovered new evidence three days after jury selection in the form of a recorded phone call made by Constand’s mother, which contradicts her timeline of events.
He also pointed out that Constand conflated important dates, including the night of the alleged assault.
“Would you forget [that date]? You’d never forget that because you were sexually assaulted,” McMonagle said.
McMonagle told the jury that Constand and Cosby’s relationship was consensual and romantic, while painting Cosby as someone who cared for Constand and was trying to help her move forward in life. He said that Cosby he has been upfront about everything, pointing to 2005 deposition of a case that was thrown out by the Montgomery County District Attorney’s Office in 2005. The defense told the jury that Cosby’s story hasn’t changed, while Constand’s has, citing her inconsistency.
McMonagle went on to say that phone records used as evidence show that Constand and Cosby had a number of lengthy phone calls following alleged assault.
“This isn’t talking to a trustee,” McMonagle said, “this is talking to a lover”
He also questioned whether one could actually become paralyzed after taking too much Benadryl. McMonagle pointed to a somewhat humorous, if not inappropriate, moment in last week’s cross examination where he asked a toxicology expert if McMonagle’s wife would be able to get intimate after taking Benadryl.
“I hope so,” the expert said, to which McMonagle laughed.
McMonagle also accused Cosby accuser and prosecution witness Kelly Johnson for being an opportunist who waited until 2015 to go public with her story by holding a press conference and going on a media tour. Johnson alleges that Cosby assaulted her in the 1990s.
“We’re not here for Andrea Constand,” McMonagle said. “That was 2005. We’re here because of this nonsense. Because of them banging the drum. Okay, you want to bang it? We’re gonna bang it.”
Before resting, McMonagle asked the jury a question.
“I ask, What are you going to say when you go home? She said one thing yesterday, another thing today, what is she going to say tomorrow?”
“It’s not romantic, it’s criminal”
District Attorney Kevin Steele delivered the closing argument on behalf of the state and focused on depicting Constand as a victim and Cosby as someone who knew what he was doing because he had done it before.
Steele used Cosby’s own words against him from the 2005 deposition. That’s when Cosby admitted to giving Constand pills and engaging in sexual activity.
“Mark my words: in this case, ladies and gentlemen, we want you to look very very closely at his words, because when you do there is no other decision to make in his words that he is guilty… it comes out of his own mouth,” Steele said.
Steele added, “He says he gave her drugs, he says she didn’t say yes.”
The prosecution’s argument was making the case a matter of consent.
“If you have sexual relations, something where they are out, when they are asleep, that's rape. Thats a crime because that person is not consenting to what the other person is doing. They are not capable of it.”
Steele then went over each bit of evidence stated in the case and explained how each figured into the three counts of sexual assault: administering an intoxicant, unconsciousness, and lack of consent.
“Drugs and sexual relations don’t go together, they take away people’s ability to make decisions and that was the defendant’s goal,” Steele said.
“Whatever it is that the defense was trying to sell you,” he added later, “I suggest you very closely at the testimony of what happened, they allege that this is just some relationship that was going to the next level doesn’t any sense. It’s not what you do.”
Steele told the jury that they should decide their verdict based on Constand’s testimony alone, that Cosby’s deposition only further proves the story, along with strong corroboration from Johnson, as well as others.
“She is victim that has come before you and has been bearing something to you that’s very personal and very hard for all to see. When you evaluate all the evidence in this case, do what you said you were going to do, and if you do, you will be doing justice.”
With that the prosecution rested its case and Cosby’s fate was handed over to a jury.