#MeToo Wasn’t Around for Bill Cosby’s First Trial. Will It Decide His Second One?

Jurors didn’t believe Andrea Constand’s word against his last year—but that was before Weinstein. Will this time be different? Even Constand’s attorney worries about a ‘backlash.’

Photo Illustration by Sarah Rogers/The Daily Beast

Bill Cosby heads to trial next month on the same drugging and sexual assault charges he was tried on last year—but in a remarkably different atmosphere.

In the interim the #MeToo movement sprang to life, with sexual allegations toppling more than 100 men. His will be the first prosecution in the post #MeToo era but even the attorney for Andrea Constand, whose allegations are the subject of next month’s retrial, isn’t sure whether the movement helps or hurts her client.

“I’m just afraid of the backlash—because at some point there will be backlash,” Dolores Troiani told The Daily Beast.

“The awareness being brought to these issues from the #MeToo movement is undeniable and long overdue… but we will have to wait to see if it impacts juries in this case and others, Kristen Houser, spokeswoman for the National Sexual Violence Resource Center, told The Daily Beast. “It is a new phenomena.”

Cosby, 80, is charged with three counts of aggravated indecent assault for allegedly drugging and sexually assaulting former Temple employee Constand, now 44, at his Elkins Park, Pennsylvania, mansion in January 2004. Last June, Montgomery County Judge Stephen O’Neill declared a mistrial after jurors were unable to come to a unanimous decision after 52 hours of deliberations.

Cosby’s retrial is currently scheduled to begin on Monday, April 2, with jury selection starting on Thursday, March 29, in Norristown, Pennsylvania. His spokesman declined to comment for this story. Cosby has denied Constand’s allegations as well as similar ones from more than 60 women.

On Monday, he will be in court in Norristown for two days of pre-trial motion hearings on issues that will shape his upcoming retrial—and possibly even delay it. Five issues will be addressed at the hearings including two defense motions to dismiss the charges, one for prosecutorial misconduct and one for insufficient evidence proving the incident occurred within the statute of limitations period.

The most contentious motion is the prosecution’s request to allow the testimony of 19 other women who say Cosby drugged and sexually assaulted them to demonstrate a pattern of “prior bad acts.” For the first trial prosecutors asked the judge to allow 13 other women to testify. He only allowed one, Kelley Johnson, who said Cosby drugged and sexually assaulted her at a Los Angeles hotel in 1996. The judge never gave a reason for his decision so the prosecution is trying again, only this time adding six more women to the tally and using a different legal rationale.

I’m just afraid of the backlash—because at some point there will be backlash.
Constand’s attorney Dolores Troiani

“Defendant William H. Cosby has spent a lifetime entertaining audiences in front of the camera,” Montgomery County District Attorney Kevin Steele wrote in a Jan. 18 motion asking the judge to allow the 19 women to testify. “Off camera he has followed and, indeed, mastered a more nefarious script—a victimizing sexual script. That is, throughout the course of decades, he has manifested a desire for young, unconscious women whom he has rendered totally passive due to his administration of intoxicants.”

Cosby’s legal team made an equally passionate argument against allowing the testimony and said if that request is granted, they will ask to delay the trial so they can investigate the six additional women.

“While the prospect of trotting out 19 other accusers makes for a splashy headline, it does nothing to advance the goal of deciding Bill Cosby’s guilt or innocence,” his attorneys wrote in a Feb. 6 court filing. “Admitting evidence of even just one of these uncharged and unproven accusations would be highly prejudicial.”

Legal experts say the trial’s outcome this time could be different if more women are allowed to testify.

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“If the trial judge permits additional women to testify at the second trial, the potential for conviction would increase significantly,” Dennis McAndrews, a former Pennsylvania prosecutor who was at the trial last June, told The Daily Beast.

“It would seem apparent that at least some jurors at the first trial had difficulty fully accepting beyond a reasonable doubt the testimony of the alleged victim,” he said, “and further support from other victims beyond the one who was permitted to testify at the first trial would be a significant prosecution victory.”

The prospect of more women testifying isn’t the only thing that’s changed in the past nine months. Cosby has a whole new team of lawyers led by Los Angeles attorney Tom Mesereau, who is best known for representing Michael Jackson, Robert Blake, and Mike Tyson in their criminal cases (none were convicted). He had done many interviews publicly supporting Cosby prior to being hired by the entertainer.

After the mistrial was declared but before he was retained by Cosby, Mesereau told TMZ that it was mistake for prosecutors to retry Cosby. “I think it’s a very weak case,” he said. “It’s a waste of time.”

Cosby will also have a local jury this time around. Last year, jurors were brought in from Pittsburgh’s Allegheny County on the other side of the state. In the past two months, he’s been more visible in his hometown than he’s been in years. He’s invited reporters to watch him eat in a Philadelphia restaurant, hung out in a local barbershop clad in Philadelphia Eagles gear (video of the encounter was posted on his Twitter account), and made sure reporters knew he was performing his first comedy show at a Philadelphia jazz club.

“It’s clear that Bill Cosby’s current litigation strategy is to try and appeal to potential Philadelphia jurors as a hometown kid who’s just a regular guy even though he’s achieved fame and fortune,” crisis management expert Gene Grabowski told The Daily Beast.

“He’s also reminding people that he’s a legendary comedian whose substantial life’s work shouldn’t be erased because of some possible errors in judgment,” said Grabowski, a partner at Kglobal, a Washington, D.C.-based public affairs firm.

During the first trial, Cosby’s attorneys did their best to shred Constand’s credibility by hammering away at her for delaying reporting the alleged sexual assault for nearly a year and initially having the dates of the incident mixed up as well as other details. Houser said none of this is uncommon with sexual assault victims, particularly those who are drugged or sexually assaulted by someone they know.

“Real people rarely respond to non-stranger assaults by immediately calling police or going to the hospital,” she said. “Instead, people are in shock and want their lives to go on as they were before they were betrayed and hurt by someone they trusted, so they avoid doing things that would make the assault real, first and foremost, by talking about it.”

Philadelphia trauma therapist Shari Botwin agreed.

In most cases people will not speak about abuse or assault for months or even years, especially when they are hurt by a family member, mentor or authority figure,” she told The Daily Beast. “The guilt and disbelief about what happened to them are the main obstacles. The risk of being disbelieved, the risk of losing relationships and/or their job will keep many silent.”

Botwin became friends with some of the alleged Cosby victims and got to know Andrea and her mother, Gianna, after attending the first trial. As tough as the first trial was, she believes Andrea and her mother are strong enough to handle what’s coming, she said.

“I am amazed at the strength, determination and support Andrea is receiving from her family and other Cosby accusers,” said Botwin, who specializes in treating trauma, abuse, and eating disorders and plans to attend the retrial. “Gianna Constand, Andrea’s mom, is a role model for moms all over the world. Her tenacity and support is admirable. Often accusers of any type of abuse will not have the support of those they are closest to.”

Another repeat attendee will be Washington, D.C., attorney Joseph Cammarata, who represents seven alleged Cosby victims suing the entertainer for defamation. His civil cases are on hold pending the resolution of the criminal case and he wants to see the new attorneys in action.

I intend to be there again to get a feel for the litigation,” he told The Daily Beast.

In the meantime, another alleged Cosby victim started a powerful social media campaign to support Constand as she heads to trial.

In February, Lili Bernard began posting a tribute a day to each of the 62 known Cosby victims on her Instagram and Facebook accounts.

The project has been “emotionally taxing and also time consuming” but ultimately “healing,” she told The Daily Beast.

“I call/text/message all the survivors whom I have come to know (they are many) to confirm my findings,” she said. “That is a difficult part of it, hearing their voices and their pain, reading their personal words to me.”

She and other alleged victims attending the trial will hold a 63-second vigil outside the courthouse each day at 7 p.m.

“It is for the victim in the #CosbyTrial, #AndreaConstand, whom I consider to be the Joan of Arc in the #WarOnRape,” Bernard wrote on the first post to explain the tributes. “Andrea, you are loved, appreciated and lifted in prayer. Thank you for your pioneering courage. You are the catalyst of the #metoo movement…Thank you for serving as a role model of spirituality and righteousness, of strength, resilience, fearlessness, empathy and compassion.”