NORRISTOWN, Pennsylvania—Bill Cosby’s second trial on drugging and sexual assault charges begins Monday, but don’t expect it to be a simple repeat of the first one that ended with a mistrial last June.
Nearly everything has changed.
Cosby has a new, more aggressive, seven-member legal team, led by Los Angeles-based Tom Mesereau. A key part of their overall strategy is to paint Constand, as a lying, scheming woman out for cash, a strategy Mesereau successfully used to get singer Michael Jackson’s acquittal on child molestation charges in 2005. They don’t seem to be afraid to play to the media, much to the consternation of the more low-key prosecutors, or even anger the judge, which they did last week when they whipped out a motion alleging racial bias during the jury selection process after the prosecution
While the gender and race makeup of the jury is the same (seven men, five women; two black and 10 white) it skews younger and is local as opposed to being from across the state.
This time Cosby will face six accusers in court, instead of two.
There are different witnesses; some evidence that was allowed in at the first trial either won’t be at this one or the opposite is true; and any mention of the decision not to prosecute Cosby in 2005, or of how it became an issue in the Montgomery County district attorney’s race in 2016, is a no-no.
Last time the defense put up no witnesses. This time they successfully fought to include one that was barred from the last trial.
Still unknown is the impact of the #MeToo movement, which sprung up after the last trial with multiple sexual allegations that have toppled more than 100 men. All but five of the 359 potential jurors questioned during last week’s jury selection said they’d heard of the movement.
Cosby, 80, is charged with three counts of aggravated indecent assault for allegedly drugging and sexually assaulting former Temple University employee Andrea Constand at his Elkins Park, Pennsylvania, mansion in January 2004. Last June, a mistrial was declared after jurors couldn’t agree on Cosby’s guilt. Cosby denies Constand’s allegations as well as similar ones from more than 60 women. His spokesman did not respond to requests for comment for this story.
While some of the changes from the last trial may increase the chances of a conviction, the outcome is far from certain, legal experts say.
“It is always the height of speculation in a close case such as the Cosby matter to predict an outcome, and I would not do so in this matter,” former prosecutor Dennis McAndrews, who watched the entire first trial last June, told The Daily Beast. “I would only say that I believe that the introduction of several additional alleged victims enhances the prospects of a prosecution victory, but by no means assures it.”
Paul DerOhannesian, an Albany, New York-based attorney who has written four editions of the book Sexual Assault Trials, agreed.
“It is a very different trial for both sides and the past trial is not a good predictor for this one,” he told The Daily Beast. “It is premature to predict an outcome.”
Rich DeSipio, a former sex crimes prosecutor turned defense attorney, thinks it will either be a hung jury again or an acquittal.
“Jurors are tough on these cases,” DeSipio told The Daily Beast. “They have the lowest conviction rate and are the most unreported crime for just this reason. It would be hard to convict Joe Average in this case. Convicting “Dr. Huxtable; Fat Albert, and Mr. Jell-O with that little boy smile—not happening.”
In the past few weeks, both sides have vigorously argued a series of pre-trial motions with victories for each that have shaped the upcoming retrial. This time Montgomery County Judge Steven O’Neill ruled the defense can call Temple employee Marguerite Jackson, who claims Constand told her she planned to set up a “high profile” person to get money, Still, her testimony is not a slam dunk. She gave conflicting accounts of what Constand said in her initial statements and the judge reserved the right to change his mind depending on what happens at trial.
The defense fought to include mention of the civil suit Constand settled with Cosby in October 2006 and the amount she got, something that has never been made public. The judge ruled in their favor.
Still undecided are two other defense motions: one to exclude a taped phone call between Constand’s mother, Gianna, and Cosby where Cosby offered Andrea an educational trust and the other to exclude any mention of Cosby’s deposition testimony that he’d obtained Quaaludes to use on women he wanted to have sex with.
Prosecutors aren’t certain any of that means the defense will put witnesses on the stand, noting that Mesereau’s legal strategy in the past has been to play to the media.
The prosecutors and Montgomery County Judge Steven O’Neill both got frustrated with the defense team theatrics last week when they cried racism and whipped out a motion after the prosecution used one of their peremptory strikes to exclude an African-American juror. They also claimed someone close to the defense heard a member of the prosecution team make racist remarks. Hours later they quietly withdrew the motion—without providing any proof of their allegations but getting plenty of headlines, regardless.
“Playing to the media is an awesome strategy,” said DeSipio, the sex crimes prosecutor turned defense attorney. “The media is power. Prosecutors spend days saying what a skilled media reporter can say in a few minutes. The average human being has a 6-minute attention span. That is what the defense is playing to.