Share All sharing options for: Bill Cosby’s retrial may be the first real test of the power of #MeToo

Bill Cosby is back in a Pennsylvania court Monday, facing a retrial after a jury failed to reach a verdict last year. The charges — aggravated indecent assault, for allegedly drugging and molesting former Temple University employee Andrea Constand — are the same. But this time, Cosby is on trial in a post-#MeToo world.

Cosby’s trial, which could last about a month, may be the first real test of the power of the #MeToo movement. A year ago, a jury heard testimony from Constand and one other woman who said the comedian had drugged them and engaged in sexual acts. Now, in this second trial, the judge will allow five of Cosby’s other accusers to testify in court about their encounter with the comedian.

These women will speak against the backdrop of a national conversation about the prevalence of sexual harassment and assault. It points to a larger question looming over this retrial: Just how much has the world changed in the 10 months since the jury deadlocked on whether to believe Cosby’s accuser?

Since then, accusations from multiple women have caused high-profile alleged harassers to lose their jobs and their social standing — but Harvey Weinstein, Charlie Rose, and their ilk haven’t actually been convicted in court. The Cosby trial may reveal whether the broader social reckoning translates to the criminal justice system.

The allegations against Cosby

About 60 women have come forward in recent years with allegations against Bill Cosby, which span almost five decades, from the 1960s to 2008. Many told a strikingly similar story of being handed a drink or being given pills, and, then, in half-conscious patches, recall being molested or raped by the comedian once known as “America’s Dad.” Others say Cosby groped them or attempted to drug them.

The statute of limitations has long expired for most of these accusations. Cosby is on trial for just one allegation from 2004. He faces three counts of aggravated indecent assault and, if found guilty, could be sentenced up to 10 years in prison for each.

Constand met Cosby in 2002, when she worked as the director of operations for the Temple University women’s basketball team. Cosby, a former Temple student, served on the university’s board of trustees.

Constand said she considered Cosby, then in his 60s, a mentor. In January 2004, the then-30-year-old said she went to his Pennsylvania home to discuss her career. He offered her an “herbal” remedy — three blue tablets — to help with stress, Constand told investigators in 2005. He also brought her a glass of wine. She took the pills and began to feel unfocused, unsteady. Her legs, she said, felt like “jelly.”

“I was unable to move my body,” Constand told investigators. “I was pretty much frozen.” Cosby, she said, penetrated her with his fingers while she was in this “paralyzed” state. She came to with her bra undone. Cosby gave her a muffin and walked her to the door.

Constand reported the incident to police in 2005, about a year after the alleged incident occurred. Cosby, when interviewed by authorities, described the encounter as consensual, saying that they engaged in heavy “petting” and that he touched her breasts and “private parts.” He said the pills he gave Constand were over-the-counter Benadryl.

The Montgomery County district attorney declined to prosecute the case in 2005. Constand sued Cosby in civil court, and 13 “Jane Does” with similar allegations against Cosby signed on as potential witnesses. A few came forward publicly at the time, though they never testified because Cosby settled with Constand for an undisclosed sum in 2006.

Almost a decade later, as more and more women brought accusations against Cosby in 2014 and 2015, the spotlight returned to the Constand case and helped push the Montgomery County prosecutor to reexamine the allegations. In December 2015, as the 12-year statute of limitations was set to expire, prosecutors charged Cosby with three counts of aggravated indecent assault.

The case went to trial in summer 2017. Prosecutors deployed three major pieces of evidence. The first was Constand’s testimony.

The second was Cosby’s deposition in Constand’s civil suit, which the New York Times published in July 2015. In it, Cosby admitted he gave women quaaludes — a sedative used as a party drug in the 1970s — to have sex with them. He called it “the same as a person would say have a drink.” (He said he didn’t give the women drugs without their knowledge and tried to defend the sexual encounters as consensual.)

The third piece was the testimony of another accuser, Kelly Johnson, a former assistant at the William Morris talent agency, who said that Cosby gave her a “big white pill” at the Hotel Bel-Air in 1996 that left her incapacitated. When she regained awareness, the skirt of her dress had been pulled up, and she was on a bed next to Cosby, where he massaged lotion onto her hand and placed it on his penis.

The defense, in cross-examination, tried to discredit Constand and undermine her timeline of the assault, focusing on inconsistencies in her interviews with police about the date of the alleged assault. (Cosby’s lawyers gave the same treatment to Johnson, referring to gaps in her story as “selective amnesia.”) Cosby’s team described the encounter with Constand as consensual. The defense also claimed that because Constand said Cosby had previously made sexual overtures toward her, she was aware of his interest when she went to his house that night. (Constand identifies as gay, though that information could not be presented in court.)

Cosby’s lawyers only called one witness, a local detective who spent about 10 minutes on the stand. Cosby, who has maintained his innocence, did not testify in his defense.

The jury deliberated, and after six days of deadlock, Judge Steven O’Neill declared a mistrial. One juror told NBC News that the panel was split down the middle on Cosby’s guilt; another juror told CNN that two holdouts prevented the jury from convicting Cosby. At least one juror publicly questioned Constand’s attire on the night of the alleged assault; others seemed to have doubted Constand’s veracity. “You could believe from his testimony what he did, but not from hers,” a juror said after the trial.

What’s changed for Cosby’s second trial

Cosby’s retrial will be different in at least one crucial way: More women will be speaking up with Constand. Judge Steven O’Neill will allow the prosecution to call as many as five of Cosby’s accusers to testify at the trial. (The prosecution had asked the judge to allow 19 women to testify.) Those women will come from a pool of eight witnesses whose allegations are the most recent, going back to 1982.

According to the Philadelphia Inquirer, prosecutors will likely call Janice Dickinson, a model who said Cosby drugged and raped her in Lake Tahoe in 1982; Heidi Thomas, who said when she was 24, Cosby drugged her and tried to force her into oral sex in Reno, Nevada, in 1984; Janice Backer Kinney, who alleges Cosby drugged and assaulted her in 1982, when she was 24; Lise Lotte-Lublin, who said that in Las Vegas in 1989, Cosby gave her shots and straddled her on a table before she blacked out; and Chelan Lasha, who met Cosby in Las Vegas in 1986 as a 17-year-old, where he gave her a blue pill and shots. She says she remembers him humping her before blacking out.

The judge only allowed one witness, Johnson, to testify at the last trial, and according to the New York Times, O’Neill did not give his reasoning when he ruled that the five other women could now take the stand. He has not yet ruled on whether he’ll allow the prosecution to call 14 additional witnesses to corroborate the allegations of those five women.

The five additional testimonies could help make clear that Cosby is accused of a pattern of sexual abuse. Bad-character evidence — basically, misdeeds or crimes from someone’s past — are usually not permitted in court, but Pennsylvania law does allow for witnesses who, in their testimony, can reveal a specific alleged pattern by the defendant — in this case, drugging women to take advantage of them in their impaired state.

But Cosby’s team has also won some major victories in pretrial hearings. O’Neill will allow the jury to hear how much Constand received in her confidential 2006 civil settlement with Cosby. The judge is also permitting the defense to call as a witness a former Temple employee, Marguerite “Margo” Jackson, who will reportedly say that Constand made up the details about her encounter with Cosby to get “money to go to school and open a business.”

O’Neill did not allow the Jackson to testify at the first trial, but her now-admissible testimony and the revelation about Constand’s settlement will likely be deployed by Cosby’s team to spin the narrative of Constand as motivated by money.

O’Neill still must decide on another motion that could also favor the defense: whether to exclude Cosby’s 2005-’06 deposition about giving women quaaludes. The Philadelphia Inquirer reports that O’Neill has hinted he will not permit the deposition in the second trial because he’s allowing the five additional women to testify. “The evidence has changed in this case, pure and simple,” O’Neill said during pretrial hearings. “And I don’t know what it is going to look like.”

Ruling the quaaludes testimony inadmissible would be a huge victory for the defense. Rather than having to deal with the fact that Cosby’s own words could incriminate him, they can focus on picking apart the accusers’ accounts.

Cosby’s attorneys also tried to pressure O’Neill to recuse himself from the case, claiming he was biased because his wife counsels survivors of sexual assault. O’Neill has refused to step down, calling the defense’s argument that his wife’s job would influence his decision as “faulty, plain and simple.”

Cosby’s retrial unfolds amid the #MeToo movement

Sexual assault allegations against Cosby began to circulate in earnest toward the end of 2014, when Cosby reemerged on a standup tour and had plans for an NBC sitcom and Netflix show and after a standup clip of comedian Hannibal Buress joking about Cosby being a rapist went viral. Dozens and dozens of women started speaking out. It felt like the start of a reckoning.

By now, about 60 women have come forward with sexual assault allegations against Cosby. Some were young models or actresses who attended meetings with Cosby on the promise of reading a script or getting career advice. Many kept their silence for years, assuming their word against that of a famous comedian would not be believed.

“I couldn’t put a name to it. I didn’t say accosted,” Joan Tarshis, a journalist and publicist who said she was assaulted in 1969, told New York magazine in 2015. “I didn’t know what to call it. The difference between this and somebody else’s rape in the dark alley is that his face would be before me every week on TV.”

Yet the women who once feared telling the truth about Cosby for years revealed themselves, and found the public was finally listening and starting to believe them. It started, in many ways, the surge to come. Sexual harassment accusations eventually ousted Fox News chair Roger Ailes in the summer of 2016; Bill O’Reilly followed from Fox News in April 2017. The New York Times published its exposé on Weinstein in October 2017. Famous actresses and household names accused a powerful Hollywood director of sexual assault, and silence was shattered. Survivors, women and men, spoke out — about Matt Lauer, about Kevin Spacey, about Roy Moore, about Al Franken.

Still, for all of the concerns that the movement denies men “due process,” most of the #MeToo claims of harassment have been litigated in the media — not in court.

But what unfolds during Cosby’s trial will be hard to separate from the national debate happening outside it. “Please don’t put me on #MeToo,” Cosby quipped to a young reporter earlier this year. Potential jurors were asked their opinions about the #MeToo movement. The judge, at team Cosby’s request, banned any buttons or paraphernalia that might express support for the movement.

Cosby’s trial also shows the limitations of justice for the women who alleged the comedian assaulted them. The statute of limitations has long expired for most of the allegations against him, though some of the Cosby survivors have become advocates for changing statute of limitations laws for sexual assault, and have had victories in Nevada, Colorado, and California.

Cosby does face a slew of civil litigation, most on hold until after the criminal case. One relates directly to allegations against Cosby: a civil suit in California from Judy Huth, who alleges Cosby molested her at the Playboy Mansion when she was 15.

The other cases involve defamation, with women claiming Cosby’s public smears maligned their reputations. These lawsuits seek to prove that the women are telling the truth about Cosby’s misconduct, and force Cosby to prove he didn’t assault them.

The strategy, which the Cosby accusers have in many ways pioneered, is the same approach now being used in the Summer Zervos case against Donald Trump.