After everything, Bill Cosby’s trial comes down to ‘he said-she said’
Bill Cosby has been accused by more than 50 women of sexual assault — and the sheer weight of that number has led to crushing condemnation in the court of public opinion.
But when he faces a court of law Monday, Cosby’s fate will hang on testimony from just two of his accusers. “There is a big contrast,” said James Cohen, a criminal law professor at Fordham.
“What Cosby is hoping for is that the jury forgets about the other 48.”
Cosby, 79, faces three counts of aggravated indecent assault for allegedly drugging and assaulting Andrea Constand, a Temple University employee, in 2004. He has denied the accusations since 2005, when Constand first went to the police.
The district attorney at that time declined to press charges — and in 2006 Cosby settled a civil suit with Constand that remained sealed for almost a decade.
‘Google Bill Cosby rape’
The legal landscape began to change unexpectedly for Cosby in October 2014, when video of a routine by comedian Hannibal Buress went viral. The performance focused sharply on Cosby and the allegations against him.
“When you leave here, google ‘Bill Cosby rape,'” the comedian told an audience at a comedy club in Cosby’s hometown of Philadelphia.
“It’s not funny. That s*** has more results than ‘Hannibal Buress.'”
In the months that followed, dozens of women came forward with more claims against Cosby. Many told similar stories; they said Cosby had drugged and then assaulted them.
In a statement to CNN in November 2014 Cosby’s attorney, Martin D. Singer, denied what he called “unsubstantiated, fantastical stories,” which were becoming “increasingly ridiculous.”
The growing number of accusers and heightened public interest in the case would be instrumental in a judge’s subsequent decision to unseal Cosby’s deposition in Constand’s civil suit.
Cosby’s public persona also played a part in that ruling. Even as the number of accusations against him rose, Cosby had continued to make statements about what he saw as the flaws and failings of many African-American families. As a much-loved family entertainer and “America’s dad,” he chose to cast himself as a conservative role model and moral compass for that community.
That will be on full display when Cosby walks into court: He’ll be escorted into the courthouse by Keisha Knight Pulliam, who played his daughter, Rudy Huxtable, on “The Cosby Show,” according to Andrew Wyatt, Cosby’s media representative.
In explaining his decision to unseal the deposition, US District Judge Eduardo Robreno cited the “stark contrast” between “Bill Cosby, the public moralist,” and “Bill Cosby, the subject of serious allegations.”
In the deposition, Cosby said he had engaged in consensual sexual activity with Constand — and that he had obtained Quaaludes in order to give them to women with whom he wanted to have sex. The unsealed deposition was central to Cosby’s arrest in December 2015.
Cosby has no plans to testify
Despite the volume of compelling accounts from dozens of accusers, only Constand’s story will be the focus of the upcoming trial.
The jury will hear testimony from just one other accuser at trial as prosecutors seek to establish that Cosby’s alleged actions toward Constand were part of a pattern of behavior. Prosecutors had sought to include testimony from 13 other accusers, but Judge Steven O’Neill ruled that would be too prejudicial.
Cosby has said he does not plan to testify. His deposition from the civil suit will stand as his explanation of what happened — which means the trial likely will hinge on a classic case of “he said, she said.”
“It’s going to be basically two people in the room and they’re going to have very different versions of the event,” said Barry Coburn, a defense lawyer based in Washington.
“And the jury is going to have to decide.”
Cosby’s rise to fame
It would be hard to overstate Cosby’s impact on the entertainment industry and popular culture in America.
The Philadelphia native enjoyed a steady rise to extraordinary, global fame. By the early 60s he had achieved widespread recognition as a standup comedian and Grammy winning recording artist. He was the first black actor to co-star in a leading dramatic role on US TV — in the espionage series “I Spy.”
In 1966, he won an Emmy for that role — another first for an African-American performer. He starred in movies opposite Sidney Poitier and in the 70s developed the animated “Fat Albert and the Cosby Kids” series for TV.
In the 1980s, he reached another generation of fans by turning the lives of the Huxtables, a black, middle-class New York family, into a beloved and groundbreaking sitcom. Over the course of multiple award-winning seasons of “The Cosby Show,” he starred as sweater-loving father figure Dr. Cliff Huxtable. The role cemented his place among the most prominent of celebrities.
Cosby’s serial successes translated into extraordinary fame and considerable influence — and he relished the opportunity to use his lofty status as a platform to make public pronouncements about social responsibility and parenting.
In 2004, at an NAACP event commemorating the 50th anniversary of Brown v. Board of Education, Cosby delivered what came to be known as the “Pound Cake” speech, in which he argued that crime in the black community was in part due to bad parenting and a lack of personal responsibility.
“Looking at the incarcerated, these are not political criminals,” Cosby said.
“These are people going around stealing Coca-Cola. People getting shot in the back of the head over a piece of pound cake! Then we all run out and are outraged: ‘The cops shouldn’t have shot him.’ What the hell was he doing with the pound cake in his hand?”
In 2005, Andrea Constand told police that she was drugged and assaulted by Cosby. Constand, the director of operations for the women’s basketball team at Temple at the time, had struck up a friendship with Cosby, a Temple alumnus who was 37 years her senior.
Sometime between mid-January and mid-February in 2004, Cosby invited Constand to his home in the suburbs of Philadelphia to discuss her future career plans. She told him she was “drained” and had been missing sleep, the criminal complaint states.
Cosby told her to relax and gave her three blue pills, saying “these will make you feel good. The blue things will take the edge off,” according to the complaint. She asked if the pills were herbal and he said they were. After telling Cosby she trusted him, she downed the pills with water. He then offered her wine to drink, and after some pushing, she took a couple of sips, according to the criminal complaint.
She began experiencing blurred vision and difficulty speaking, lost all strength in her legs, and was “in and out,” she told police. According to the complaint, Cosby positioned himself behind her on the sofa, penetrated her vagina with his fingers and put her hand on his penis. She told police that she felt “frozen” and “paralyzed” and did not consent to the touching.
Constand woke up in the early morning and discovered that her bra was undone and had been moved above her breasts, according to the complaint.
About a year later, Constand told her mother about the assault, and Mrs. Constand spoke with Cosby over the phone to confront him. In that conversation, Cosby admitted to fondling Constand’s breasts, penetrating her vagina, and putting her hand on his penis, according to the criminal complaint.
A criminal investigation was opened. In an interview with police, Cosby said that the pills he gave Constand were over-the-counter Benadryl. He described their sexual encounter as consensual, and he said she never told him to stop or mentioned that her senses were affected by the Benadryl.
Cosby also gave an unusual answer when asked if he ever had sexual intercourse with Constand: “Never asleep or awake,” he said.
District Attorney Bruce Castor declined to press charges in 2005.
Constand filed a civil suit against Cosby shortly after, and Cosby gave a deposition in that case. He and Constand settled the civil suit in 2006.
Dozens of accusers
Cosby had remained very much in the public spotlight when, a decade later, video of Buress’ stand-up performance created a renewed interest in the accusations. Fresh claims began to trickle out.
Joan Tarshis, a journalist and publicist, told CNN that Cosby had assaulted her 45 years ago when he gave her a drink that made her groggy and she woke up to him removing her underwear.
Janice Dickinson, the supermodel and TV personality, accused Cosby of sexually assaulting her in 1982 after he gave her a pill and a glass of red wine.
Those claims were followed by a torrent of almost-daily accusations. Cosby’s attorneys continued to deny any wrongdoing, and Cosby told Florida Today he wasn’t going to respond to “innuendos.”
But public opinion had shifted and, as the number of complaints continued to climb, many gave more credence to the dozens of women and their stories of being drugged and raped.
Cosby’s comedy specials were canceled or put on hold and a number of colleges and institutions cut ties with the now-radioactive comedian. “The sensitivity to women who are sexually harassed or touched without permission has changed dramatically in the last 12 to 13 years,” said James Cohen, a criminal law professor at Fordham.
After a request from the Associated Press, Cosby’s deposition in Constand’s civil suit was unsealed in July 2015. Cosby’s attorneys argued that he only gave that deposition because the district attorney at the time promised never to bring a criminal case based on the accusations.
However, the release of the deposition led the new district attorney to file criminal charges in December 2015.
Many of his accusers see the charges as a form of vindication — no matter the trial’s outcome. Heidi Thomas, who accused Cosby of assaulting her in 1984, told CNN that she was “thrilled” to learn he would be charged with a crime. “Is it going to become something that eventually will send him to prison?” she wondered. “Wow. That would be the ultimate victory. I don’t know.”
Major issues at trial
Despite the dozens of accusations, Cosby’s trial will in many ways come down to a “he said-she said” argument common to sexual assault cases, legal experts predict.
“Those cases always carry potential problems for both sides,” said attorney Coburn.
On one side is Constand, now 44, whose testimony of the alleged assault will be the crux of the prosecution’s case against Cosby. Though the trial will center on her accusations, jurors will likely be familiar with the many other accusations against Cosby that were covered widely in the media.
“The media and prejudice from that is the most powerful (issue) to overcome here,” said Sara Webster, a criminal defense attorney in Pennsylvania. “There are people who can step back and say, ‘Well, I’ll stick with what I just hear in the courtroom,’ but you know there’s an imprint that occurs over time.”
Cosby’s attorneys are likely to argue that Constand didn’t report the alleged assault until almost a year after she said it happened and will question her version of events. The case has very little forensic evidence, and the defense will try to point out inconsistencies in Constand’s story.
“Time is the enemy for any criminal case,” said Jordan Friter, an attorney in Pennsylvania. “Most people couldn’t tell you what they had for dinner last night, let alone what happened 13 years ago.”
“The defense is going to be looking for inconsistencies, and is going to claim that the passage of time doesn’t excuse (them). The prosecution will use time for any excuse for inconsistencies,” said Fordham law professor James Cohen. “That’s sort of how the discussion will go.”
Still, Cosby’s decision not to testify will make his case “difficult” for jurors, according to Webster.
“(Jurors) want a denial. It’s tough when you have a client that isn’t going to take the stand,” Webster said.
Legally speaking, the result of the trial will not directly affirm or deny any of the other accusations against Cosby. But the verdict’s impact on the public consciousness is a different story.
“I think the result of this trial will probably have a lot to do with the way people look at him,” said attorney Barry Coburn. “A trial is a powerful thing. It’s drama, it’s public, and I think people tend to invest the result with a lot of credit.”