For background on the Cosby sexual assault case, please click here.
Next was McMonagle’s closing statement. Boy did he earn his money! He argued passionately on Cosby’s behalf. He has a very interesting courtroom demeanor and by that I mean he yells at times, makes weird facial movements, rubs his eyes, runs his hands over his balding head, grimaces, squints, etc. He is dramatic and in the moment and no one can ever say Cosby did not have zealous representation. Despite the 2 hour closing nothing surprising was raised (it’s not supposed to be at this point). Mostly, he bashed Andrea and called her a liar. He tried again to show the nature of her relationship with Cosby was a romantic one. He did finally say that Cosby cheated on his wife and makes mistakes like all humans (newsflash I know!) He tried to make a big deal out of inconsistencies and issues Andrea (and Kelly Johnson) had with recalling dates. At times he was very persuasive and all those post assault phone calls are still troubling but it’s hard to ignore what all parties agree to: he gave Andrea pills, she felt effects of the pills, he fondled her breasts, put his fingers inside of her and then when he was done with her left he on the couch while he went upstairs to bed. As I’ve said, how anyone sees this as romance is beyond me.
The prosecution’s closing was even longer and no stone was left unturned. DA Steele pointed out how hard it was for Andrea, or any victim of sexual assault really, to come out and testify, put her private life on display for all to hear, evaluate and pick apart. In particular he mentioned how brutal cross examination can be. Steele was very careful in showing how the evidence supported all the elements necessary to convict on each of the three counts of aggravated indecent assault (detailed on the discussion page). He also made clear that even if the Commonwealth did not call any other witness besides Andrea or didn’t present any other evidence besides what she provided on the stand, that was sufficient evidence for the jury to convict Cosby on all 3 counts.
The jury was instructed on the law and now they are deliberating.. We may have a verdict tonight; but remember, it has to be unanimous in order to convict.
Before talking about Day 5, the final day of the prosecution’s case in chief, I want to make sure PROOF followers know about rape shield laws and how it applied here. Prior to trial, Judge O’Neill rejected a defense request to allow evidence in about Andrea’s sexual past and sexual orientation. The rejection was based on the Pennsylvania Rape Shield law, which, like other rape shield laws, was created to protect victims from having their sexual pasts used as fodder while they are on the witness stand. At the conclusion of Day 4, the judge renewed his ruling in this regard. No evidence will come in at any point about Andrea’s relationship status, sexual orientation, or past partners. Why? It’s not relevant (the days of blaming the victim and harassing victims on the stand need to be gone).
So, back to Day 5. It started out with Detective Reap and District Attorney Steele reading more of Cosby testimony from the 2005 and 2006 depositions stemming from the civil case Andrea Constand filed after the DA’s office initially decided not to prosecute Bill Cosby. Again, the details were pretty graphic and again were Cosby’s words that his relationship with Andrea was romantic and that the pills he gave her were simply Benadryl. This is a very hard pill to swallow (sorry, bad pun). As Andrea’s civil lawyer and the prosecutors have pointed out, if the pills were Benadryl, why didn’t he just tell her that? Why didn’t he tell her mother when she called him furious over the fact that he gave her daughter pills? Interesting that it was only after Cosby retained counsel that he “remembered” the pills were simply Benadryl. One more question. If the relationship was romantic and consensual, after Andrea and Cosby engaged in sexual activity, why did he go upstairs to sleep and leave her lying on the couch downstairs? Yeah. Like Sargeant Shaffer said, “a real gentleman.”
It is important to note that in his own deposition, Cosby admitted that while on the phone with Andrea’s mother, he apologized twice. He also referenced the phrase “dirty old man” twice-not on the phone with Mrs. Constand but during his deposition he characterized what he thought she thought of him. He also talked about the fact that he was worried Mrs. Constand was recording their conversation (she did record one conversation with him but it was not the one where he admitted to “everything”. On the stand, Mrs. Constand said she wished she had. And, in case you’re wondering, Canada, where the taping emanated, does not require both parties to consent to being recorded. The fact that Mrs. Consatnd knew she was being recorded made the recording of Cosby perfectly legal.) One additional key point that came out through the deposition testimony was that Cosby said that he did not believe Andrea was after money or that that if she got money she wouldn’t report the incident to police.
The next witness was Veronique Valliere, a psychologist who works with victims of sex crimes. She testified that victims of celebrities are often afraid to come forward because of the backlash they will face for doing so.
The defense moved for a mistrial again, arguing Valliere was offering observations about Cosby and her testimony was supposed to remain general in nature about victim behavior. Again, the judge denied the motion. Don’t read too much into these motions; they’re a common, expected defense strategy and helps to preserve the record for appeal.
The prosecution then rested. Defense case starts Monday.
Not the most exciting day here in Norristown (unless you count my interview for Inside Edition) but still good evidence coming out for the prosecution as well as the utterance of an absolutely awesome comment from a witness–by a cop no less. Here’s what went down:
Sergeant Shaffer, one of the officers assigned to the Cosby matter in 2005, was a solid witness for the prosecution. Much of what he said supported Andrea’s testimony and he was clear, credible, and convincing. His shining moments came on cross, however. Defense attorney McMonagle read from a report prepared during the investigation and referenced a portion where Cosby stated that on one occasion he lifted Andrea’s shirt and bra and began kissing her breasts but stopped because she said stop. When McMonagle told Shaffer that Cosby stopped when he was told to stop, Shaffer retorted, “He’s a real gentlemen, sir.” For some reason later in the cross McMonagle revisited the issue; Shaffer repeated his retort like I said “a real gentleman.” He got quite the laugh from those in the courtroom and McMonagle strategy totally backfired there. Shaffer got in one more dig at McMonagle. The lawyer read another portion of the report regarding the time Cosby tried to unbutton Andrea’s pants. McMonagle looking for agreement, praise or something from the witness read the portion and asked, isn’t that right. Shaffer’s response? “You read it perfectly sir,” giving absolutely no credence to the truth of the words just that the lawyer had it read it right. Shaffer did not hide his bias regarding Cosby, not in the slightest. I loved it! Shaffer is my second favorite witness, after Mamma Constand of course.
The defense did get a little win regarding the “Benadryl defense.” A big part of Cosby’s defense is that he didn’t really drug Andrea–he just gave her some Benadryl (you may be wondering why Benadryl had the dramatic effect it seemed to have on Andrea or why, if it really were Benadryl, Cosby didn’t tell her or her mother when they asked what the pills were, or why he lied in the moment and told Andrea the pills were herbal and she should just take them. If you are wondering these things, that’s good because that’s exactly what the case is about! And, uh, I don’t know about you, but herbal Benadryl? I don’t think so. But, through Shaffer the defense was able to bring out that when the assault occurred blue Benadryl pills did exist (I was kind of surprised about that. I’ve only seen pink ones).
For about 50 minutes at the end of the day, another detective, one who was involved when the case was reopened in 2015, read responsively with District Attorney Steele from the depositions in Andrea’s civil suit against Cosby (the release of those depositions is what reopened the criminal investigation and resulted in Cosby being charged for assaulting Andrea). Though the delivery was pretty dry, the substance of the depositions was anything but. Cosby has announced he will not be testifying at trial so the reading of his depositions is the only way we will really get to hear from him, in his own words. The depositions included information about how from the moment Cosby saw Andrea he had a romantic interest in her, that he didn’t want his wife to know about her, and that he knew if he wanted Andrea he would have to work to gain her trust. There was also pretty graphic explanation of what he did to Andrea on the night in question–the pills, the mastubating, the digital penetration. Even in his own words none of it makes sense, none of it seems consensual. More information to come on this as the detective is back on the stand tomorrow.
-No, this isn’t Cosby’s wife, Camille. She has yet to appear at trial. It’s Sheila Frazier, a former co-star of Cosby’s
The drama continued on day 3 though it was off to a very slow start despite the fact that the main witness, Andrea Constand, was on the stand. The entire morning Andrea Constand underwent cross which, quite frankly, was kind of underwhelming. Angela Agrusa, an LA defense attorney is bright and has a very professional demeanor but she was having some significant evidentiary challenges today in terms of using evidence and having Andrea expand on it. She spent the bulk of the time reviewing phone records with Andrea–major snore. The point? To show that after the January 2004 assault, Andrea and Mr. Cosby (for the most part, that’s how he’s being referenced in this trial) remained in very regular phone contact until she left her job at Temple University on March 31, 2004. The defense team–not the witness–counted up the calls and said there were 72 calls between the parties in this time period, 53 of which Andrea initiated. Truth is many of the calls resulted in the leaving of a voicemail or of the two not connecting or of Andrea calling Mr. Cosby for something Temple related. Andrea made very clear that the only conversations she had with Cosby were about Temple business or the women’s basketball team. Still, it didn’t look good and it would’ve been better if on redirect the prosecution was able to connect those calls to various goings on at Temple to really show that nexus. They did not do that. The defense also continued trying to prove that Andrea and Mr. Cosby had a romantic relationship because they exchanged gifts, were alone together in hotel rooms (there was zero testimony that anything romantic occurred), and at Cosby’s house, and that one of those nights at Cosby’s house they drank a little brandy, lit some incense and a fire. This was the night Cosby put his hand on Andrea’s thigh.
Andrea remained a very credible witness throughout her testimony. And though all those phone calls aren’t the best pieces of evidence for the prosecution’s case, after watching Andrea on the stand for so many hours and talk about her life from 2002-2005, it’s clear she was a people pleaser back then and that’s why she didn’t tell her parents right away, why she maintained contact with a man who had drugged and assaulted her, and why after Cosby made two unwanted suggestive moves (there was another incident when he tried to unbutton and unzip her pants) she returned to his home, alone. These may not be the best choices but they certainly don’t mean she consented to being drugged and sexually assaulted.
The showstopper of the day, however, was Andrea’s mother, Gianna Constand. In all my years I don’t think I’ve seen a witness quite like this. I struggle to even find the right word to describe her. She’s older, slight and just looking at her simple beige handbag and turquoise shawl she had brought to court lying on counsel table as she walked up to the stand made me think she was going to be meek. Boy, was I wrong! She’s a no nonsense, tough yet loving, Canadian who was downright pissed that Bill Cosby drugged her daughter. When she found out she called him and the two had a very lengthy phone call. It was during this phone call that Mr. Cosby, who referred to Andrea’s mother as mom when speaking with her (yuck), shared the sordid details of the night. At this point Andrea had only told her mother about the pills and how they made her feel and that she thought she might have PTSD from it. Mr. Cosby told Mrs. Constand that he gave Andrea pills, touched her breasts, and inserted his fingers into her vagina. To top if off, Mr. Cosby, who is 10 years older than Andrea Constand’s father, told the mother of the woman that he assaulted that her daughter had an orgasm. Nice Jell-O pudding man, very appropriate. This tough cookie did get emotional on the stand when she spoke about the betrayal her daughter suffered, among other things, at the hands of this very powerful Hollywood icon.
The best moment of the day? When Angela Agrusa was trying to trip up Mrs. Constand during cross examination (with very little success I should point out) and Mrs Constand said, right from the stand, “I find you’re testing my memory about irrelevant things.” We should all be so lucky to have a mother like Gianna Constand.
Day two of the Cosby trial did not disappoint. At the start, Judge O’Neill promptly issued his ruling that Dr. Patrice Sewell, Kelly Johnson’s mother, could testify. Dr. Sewell was a strong witness and corroborated what her daughter said. Dr. Sewell testified to the devastating effect Cosby’s assault (and subsequent effort to get her fired from William Morris–Ms. Johnson ended up filing a worker’s compensation claim and never returned to William Morris so she was never actually fired) had on her daughter. She talked about how their family in many ways saw themselves as similar to the Huxtables. She spoke of their reverence of Bill Cosby. The most moving testimony came when Dr. Sewell explained why Kelly’s father, a retired LAPD detective, did not want her to report the incident to the police. He knew his daughter would be humiliated, didn’t want her to endure that kind of fear, shame, and embarrassment. This seemed like a very painful truth for the family to admit to themselves.
The prosecution’s next witness was Joseph Miller, the attorney who represented William Morris in Kelly Johnson’s workers compensation claim. I really liked this witness! He is a 50 year veteran of the bar, had a learned but kind air about him and when he talked about how difficult Hollywood agents are to work for and that tons of workers compensation claims stem from stress caused by these hard-to-work-for bosses, I immediately pictured Ari Gold screaming, “Lloyd!” (Now, we know that relationship was a love/hate but you get what I’m talking about.) He also cleared up the deposition confusion from the prior day’s testimony. Bottom line: Kelly Johnson sat for 2 depositions in her workers compensation matter. In the first session nothing much startling came out; the second session was the one where Kelly shared what happened with Bill Cosby. It was after that revelation that William Morris began settlement negotiations with Kelly. Why no transcript available of all that juicy info? Miller was clear about that. No one wanted the Cosby info out there. Kelly Johnson settled the case, but not for that much–somewhere under 10K per Miller.
Next to testify was Dave Mason and Stuart Parsons–both law enforcement officers with the police force in Canada. Nothing too earth shattering from these two witnesses but it is interesting to note that Stuart Parsons has been married to Andrea Constand’s sister, Diana, since 1994. He basically was the one who told her she needed to report it and to get a lawyer. Dave Mason was one of the officers that Andrea Constand reported the sexual assault to in 2005-about a year after it occurred.
Ahhh, the moment we have been waiting for: Andrea Constand takes the stand. Remember, Andrea is not a party to the case, she’s a witness and the complainant. As discussed previously, crime victims are not named parties in criminal matters because a crime is considered a wrong against society, the public so the named party is the municipality where the wrong occurred, ie The Commonwealth of Pennsylvania.
I loved this witness. She had such a calm, centered demeanor (I was not surprised when I found that she had spent a better part of the prior day meditating)no doubt partially due to her career choice. She’s a massage therapist. She testified to everything we’ve all already heard a million times already. The defense is mid way through their cross examination and Andrea is holding her own, very little damage has been done to her testimony despite the defense’s efforts to make her look like a liar. Here are the answers to the burning questions we have about the incident, straight from the victim’s mouth:
- Andrea went to Cosby’s house to talk about her career around 8:30pm one night in January 2004. She was a little stressed, worried about how to tell her boss she was making a career change. Cosby retrieves 3 blue pills and tells Andrea they’re her friends and will help her relax. Andrea asks if they’re herbal. Cosby says yes. With more urging by Cosby, Andrea takes them.
- Within 20 minutes or so the pills take effect. Andrea’s vision is blurred, her limbs are weak. Cosby walks Andrea over to the couch and tells her to lie down. She does so.
- He fondles her breasts, takes her limp hand, places it on his penis, and masturbates himself with it. He inserts his fingers into her vagina.
- She wakes up around 4:00am, notices her bra is above her breasts. She still feels somewhat out of it and walks into the kitchen. Cosby is there. He offers her a muffin and some tea. She takes two sips of the tea, the top of the muffin and walks toward the door to leave. Cosby says, “Alright.” Andrea does not respond, leaves the house, gets into her car and drives home.
- The next night Andrea goes back to his house after an event he invited her to–she just wants to know what those pills were. He does not give her this info so she leaves.
- Yes she does continue to speak with him over the next few months. Why? For work. It’s basketball season, Cosby is a big supporter of the program and of Temple University, his alma mater (recall that Andrea is Director of Operations of Temple Women’s basketball), she felt she had to in order to do her job well. She did not return to his house again or spend time alone with him after that. She also gave Temple her notice and returned to Canada in March 2004.
- Why didn’t she report the crime promptly or tell anyone about it? She was humiliated, embarrassed and afraid.
That’s most of the meat of the matter from today. Will provide more info on cross tomorrow once it concludes and there is re-direct, and re-cross, if the judge allows it.
What a first day of trial!
Court started out with the jury being instructed not to talk about the case with anyone and not to look at any outside news sources. Interestingly though sequestered, they still have access to tv, internet and their cell phones. The judge is very concerned about the jurors comfort and treatment–he referenced it several times throughout the day.
Kristen Feden a petite, female, African American prosecutor delivered the opening statement for the Commonwealth of Pennsylvania. She gave a clear, fairly concise opening statement that laid out what the case was about: TRUST. BETRAYAL. INABILITY TO CONSENT.
Bill Cosby holding firm to his previous position that he will not testify in the trial. “I just don’t want to sit there and have to figure out what I believe is a truthful answer as to whether or not I’m opening a can of something that I — my lawyers are scrambling,” said the actor. Hmm.
Jury selection complete. 12 main jurors and 6 alternates. The panel makeup? Seven men, 5 women. One man and one woman is African American. The others appear to be Caucasian. In a case where race has been raised as an issue this is an interesting panel.
Ten jurors have now been selected. Four women’ six men. Three of the women are Caucasian, one is African American. The men are all Caucasian. Two more juror seats to fill as well as four alternate spots. Attorneys are getting the job done!
Five jurors selected on day one. Good start!
Jury selection starts. Jurors will be pulled from Pittsburgh, Pennsylvania. Those chosen will be sequestered near the courthouse in Montgomery County which is approximately 300 miles away from Pittsburgh.