The finer details of the ‘biggest sexual assault trial in history’ shine a hopeful light on the future of similar trials.
NORRISTOWN, Pa. — On Saturday morning, Judge Steven O’Neill proclaimed that, in the eyes of the law, the past two weeks inside in Courtroom A of Montgomery County Court didn’t exist. “This is a nullity,” the Court of Common Pleas judge said after the jury’s “hopeless deadlock” compelled him to grant a mistrial in Commonwealth v William H. Cosby Jr. “I remind everyone that this is not vindication or victory,” Judge O’Neill cautioned the court. He then addressed defendant Bill Cosby, who appeared so impassive as to be medicated as he looked down, clutching his cane. Cosby remained on bail, the judge told him. He remains charged with three counts of felony indecent assault. Moments later, Montgomery County DA Kevin Steele told the court he intends to retry the case, prompting a pulse through the room.
The mistrial result surprised no one who sat through the six-day trial or the 52 hours of jury deliberations — a marathon that included requests to reread so much testimony that lead defence lawyer Brian McMonagle complained the case was “being relitigated.” Judge O’Neill, who’d presided over 18 months of pre-trial and whose temper was on short leash by trial’s end, clearly wants the retrial sooner than later: the window in Pennsylvania is 365 days; the judge called for it to happen in 120.
In the front row, complainant Andrea Constand, wearing a bright white jacket, sat next to her mother, Gianna Constand, a ferocious witness for the prosecution. Andrea was expressionless as mistrial was announced. After the jury left and court was recessed, the scene turned emotional. Constand was circled by supporters, first hugged tightly by police who had investigated her case, then friends and family; she smiled broadly all the while. Nearby, the sorority of Cosby accusers who’d mobilized at the courthouse to watch the trial was in tears, holding one another.
The Cosby trial, billed by the judge himself as “the biggest sexual assault trial in history,” may now be a legal non-entity. But there’s no escaping its broader cultural imprint, one that may seem imperceptible in the immediate wake of a divisive trial. The Cosby case has been ready-made as fill-in-the-blank Rorschach test: Some say it’s all about race. Others that it’s a politically motivated witch-hunt. And a small contingent viewed an American icon on trial for sexual assault as a glimmer of a societal shift in believing victims of sexual assault.
The klieg lights cast on the Cosby trial both illuminated and blinded. Certainly they put a spotlight on the he-said, she-said that underlines most sexual assault cases. In coming forward in 2005 to report to police that one of America’s most beloved celebrities drugged and sexually assaulted her, the Toronto-based Constand was the smoke exposing an unseen raging blaze. She emboldened other women—a dozen at first, more than 60 by 2015—to report similar drugging and assault by Cosby. Only one of 13 of these women was allowed by the judge to appear for the prosecution as a “bad prior acts” witness, to establish patterns in Cosby’s behaviour. For the jury in the Cosby criminal case, that compelling larger chorus did not exist.
Constand’s testimony—and Cosby’s own words in sworn depositions—advanced the case to court. And that would expose entrenched rape myths, or, as assistant Montgomery County DA Kristen Feden put it in her opening arguments, “the distractions” that underlie sexual assault cases. That was evident in the treatment of “bad prior acts” witness Kelly Johnson, who alleges Cosby drugged and assaulted her in 1996 when she was a personal assistant at William Morris Agency, where Cosby was the top client. Johnson was slammed on extraneous, irrelevant allegations—that she’d taken cocaine in the ‘90s, that she’d had relationships with other William Morris clients, that one had been the father of her child. It was a line of questioning that suggested Puritan America was alive and well in 21st-century Pennsylvania.
Constand too was hammered for inconsistencies. She’d flip-flopped on the date of the alleged assault in police reports. She said she was never been alone with Cosby before the night of the alleged assault, when she had been. She was assailed for having a prior “romantic” relationship with Cosby (she denied it) and continuing contact with the defendant, someone she defined as a mentor, after the alleged assault. Much was made of the headline-grabbing fact that Constand called Cosby, who sat on the board of trustees of Temple University, her employer, some 53 times. As the prosecution pointed out, the vast majority of calls were less than one minute, meaning no contact. Once they’d spoken for 49 minutes, a cause of moral outrage to McMonagle, a man who clearly doesn’t have chatty friends. “This isn’t talking to a trustee,” he screamed at Constand: “This is talking to a lover.” Questioning regarding the bath salts Constand brought Cosby at his house the night she confronted him about the alleged attack wouldn’t have been out of place at the Scopes Trial. Constand withstood all with a Zen calm.
But the court would also witness a string of law enforcement officers who believed Constand—from her brother-in-law Stuart Parsons, of the Toronto Police Department to Sgt. Richard Schaffer of the Cheltenham Township Police to James Reape of the Montgomery County’s DA office. Schaffer, whose performance on the witness stand has won him a feminist following, drew gasps from the court when he rebuked McMonagle after the lawyer asked if Cosby, by his version, ceased sexual contact with Constand when she said ‘No.’ “He was a gentleman there, sir,” Schaffer said sarcastically. Moments later, McMonagle asked Schaffer if the account was correct. “Again, he was a real gentleman there.” Cosby hadn’t called himself a gentleman, McMonagle responded. “No. That was me, sir,” Schaffer said.
The Cosby case also exposed the barriers faced by women coming forward. That was seen in the testimony of Johnson’s mother, Patrice Sewell, who explained why her husband, a detective with the Los Angeles Police Department, advised their daughter not to report: ““Because her father didn’t want her to be humiliated,” Sewell said. “To feel [the] shame, embarrassment that he had seen other women go through when they went to the police at that time.”
And certainly the “he-said” in this trial once possessed a powerful platform. For at least one juror he still does. For anyone measuring Cosby’s own words in sworn depositions and police statements using common sense, as the judge instructed, would come up short. The court heard Cosby admit he handed out Quaaludes, a sedative, to young women he wanted to have sex with in the ’70s, a time they were illegal without prescription. The jury heard Cosby say the only time he had an erection with Constand was the second time they had intimate contact: “the time she said ‘No.’” They heard him volunteer he’d never had intercourse with her “asleep or awake.” They heard that Cosby left Constand on his sofa in his five-bedroom house, without so much as a blanket; she testified she woke up after feeling “paralyzed” with her bra around her neck. The jury also heard Cosby refuse to tell Constand’s mother what drug he gave her daughter; they heard he thought it was a prescription drug but couldn’t read the label. Benadryl, a well-known over-the-counter drug, was first mentioned by Cosby during a Jan. 2005 police interview in which he was flanked by lawyers. They also heard Cosby tell Gianna Constand: “Mom, there was no penile penetration, just digital penetration,” and “Mom, she even had an orgasm.” By then, safe to say, Cosby’s good-guy alter ego Dr. Cliff Huxtable had left the building.
Outside the courtroom Saturday, the day was overcast, oppressive, muggy—ripe for pathetic fallacy, that term you learn in high-school English class. At a podium set up for impromptu press conferences, Gloria Allred, the high-profile LA lawyer representing 33 Cosby accusers, stood with clients Linda Kirkpatrick and Jewel Allison. Allred, a courthouse fixture during the trial, sent out a warning to Cosby: “It’s too early to celebrate Mr. Cosby,” she said. “Justice may be right around the corner.” What was needed, Allred said, was more of Cosby’s accusers to testify. “That might make all the difference.”
As Allred spoke, chants of “We love you Bill Cosby” could be heard in the distance. These were the Cosby supporters who appeared late in the trial’s second week, after the jury announced deadlock Thursday morning, raising speculation they were paid. On Saturday, supporters showed up with t-shirts that read “We [heart] Bill Cosby” and shirts with a Fat Albert cartoon and “Hey, hey, hey” We [heart] Bill Cosby.” I asked a man nearby shouting “Victory for Bill! Victory for Bill!” why he believed it was a “Victory for Bill.” “I don’t know,” he said.
It might have something to do with Cosby’s team spinning the mistrial as a win. “Justice is alive in Montgomery County,” McMonagle told the crowd. “We wanted an acquittal, but like the Rolling Stones song says, ‘You can’t always get what you want; sometimes you get what you need.'” The reference suggested the Stones anthem has achieved second life in America as a generic multi-purpose prop: It’s also played at the end of Donald Trump rallies.
Outside court, Andrew Wyatt, Cosby’s publicist, raised his fist in victorious defiance. “Mr. Cosby’s power is back, it’s back,” Wyatt said, spinning magic fairy dust. “It’s been restored….So the legacy didn’t go anywhere.” Wyatt then repeated a cryptic quote from Black Panther co-founder Huey P. Newton: “Power is the ability to define phenomena, and make it act in a desired manner,” an unintentionally apt summary of the Cosby trial.
A female Cosby spokesperson then read a statement from Cosby’s wife of 53 years, Camille, who’d appeared in court for only one half-day of the trial—to hear the defence’s minutes-long case: the defence called one witness to admit a piece of evidence into court documents. Now, Camille Cosby, who had not spoken about the charges, was on the offensive, framing her husband as the victim. She blasted DA Steele as “heinously and exploitatively ambitious.” Judge O’Neill was “overtly and arrogantly collaborating” with him. She called the media, or most of it, “blatantly vicious entities that continually disseminated intentional omissions of truth for the primary purpose of greedily selling sensationalism at the expense of human life.” Camille Cosby went on to compare jurors who refused to convict her husband to those “challenging injustices.”
Across from the courthouse in the District Attorney’s offices, Steele was challenging injustices at a jammed press conference. The DA, who looks like Jimmy Stewart or Mr. Rogers, depending on the angle, tried to put a happy face on the day’s events, focusing on Constand’s courage: “We are in awe of what Andrea Constand has done in coming forward,” he said. She was willing to testify again, he said. When asked for her reaction to the verdict, Steele deflected to praise: “I can’t emphasize how courageous she is. She is a positive person. She has kept all of us going waiting for the jury.”
When a reporter asked about criticism of the onerous cost of the trial, Steele responded: “You can’t put a price tag on justice. If you do, you’re saying if someone is wealthy or famous, they don’t deserve the same sort of justice as everybody else.” When asked what he would tell other victims who might see the deadlock as proof they won’t be believed, Steele tried to reassure. Drug-facilitated sexual assault is believed to be underreported, he said: “People drugged have their memory affected. When you look what happened in this case, you’ll see if you come forward, you will be heard and treated with respect and courtesy. These women are victims of crimes.”
Of course, that scenario doesn’t jibe with a trial that no longer exists legally. But Steele expressed hope moving ahead: “Just because verdict is not reached in one case doesn’t mean it won’t be in another,” noting he’d had one other mistrial in her career; he won on retrial. These are the slow metrics by which we move ahead. “Believing Andrea is enough to convict,” Steele told the jury in his closing arguments. Not everyone on the five-woman, seven-man, ten-white, two-black jury believed Andrea Constand. But not everyone believed Bill Cosby, either. As a DA from another county sitting in court put it to me: “The first case is a dress rehearsal.” He wasn’t speaking metaphorically.