Jury selections started on Monday, May 22 in the criminal case of Bill Cosby. Cosby is charged with aggravated indecent sexual assault in the case of alleged victim Andrea Constand. Constand alleges that in either January or February of 2004 that Cosby drugged her and then sexually assaulted her. The State’s Attorney filed charges within days before the statute of limitations tolled or ended any possible charges being filed. Since then, Cosby has become a pariah with most persons including his former celebrity friends shunning him and judging him guilty of Constand’s assault and those of 60 other alleged victims.
On June 5, 2017, Cosby will only face the charges of Constand. The other alleged victims’ cases statute of limitations expired. So those women mostly place their hopes in Constand that justice will be served in her case—thus vindicating the others who can’t press charges.
Constand’s case is far from a slam dunk. In reality, it faces many uphill climbs to reach a guilty verdict. The previous State’s Attorney declined to press charges stating insufficient evident. That’s legal buzz words for cannot be proven in a court of law beyond a reasonable doubt.
So why did another State’s Attorney decide to pursue charges? And does the case have sufficient evidence for a conviction? As in all sexual assault or rape cases, multiple problems exist. Most cases, as the present one, rest on the strength of the victim and her account of the events. The defendant cannot be compelled to testify and usually remains silent.
Andrea Constand will need to give the victim performance of all time to secure a conviction. Cosby, age 79 and apparently blind, is charged with three felonies of aggravated indecent assault which carries 10 years for a maximum of thirty years, if convicted on all counts. At Cosby’s age, a conviction would amount to a death sentence for the comedian and former actor. Cosby has called the trial a “public lynching” and alleges consensual sex.
The alleged facts surrounding the case are murky. Constand alleges that in either January or February of 2004 she went to Cosby’s house. She had been to his house on two prior occasions where he allegedly tried to hit on her. At the time, Contand was working for Temple University in the athletic department. And Cosby was an icon at Temple. What transpired on the alleged night of the incident, only the two of them know for sure.
One thing is for sure, Constand waited one year before alleging that Cosby sexually assaulted her. She couldn’t remember the exact date—only January or February. In the interim, Cosby sent her tickets to his show in Canada. She attended with her parents and brought him a sweater as a gift. And she even went back to his house again after the alleged incident. She alleges that it was to confront him.
Cosby on the other hand testified at a deposition that he used to give women Quaaludes before having sex with them. That testimony, part of his deposition in another case, will be allowed—although Quaaludes ceased manufacturer long before 2004. The jury will not be told that Cosby settled the civil case involving Andrea Constand. The testimony of one other woman who alleges Cosby assaulted her in the 1990’s will also be allowed.
Jurors are coming from the Pittsburgh area and will be sequestered once the two week trial begins outside of Philadelphia—where the alleged incident took place. It’s hard to fathom a prospective juror who has not heard of Bill Cosby or has an opinion on him. And Allegheny County, where the jurors were selected, is a conservative area. Montgomery County, PA, where the case is being tried, has a high conviction rate. I don’t think the case will rest on what jurors think or know about Cosby—as much as what the victim’s testimony will be along with portions of Cosby’s deposition and statement to the police.
Most cases are won or lost on the type of jury that is selected. If those members of the jury are inclined to base their verdict solely on the evidence as they will be sworn to do, it may end up as a not guilty verdict—due to the what some may conceive as inconsistent behavior of the victim and other factors. If the jury wrongly either unconsciously or consciously factors in the other 60 alleged victims, it may be a guilty verdict—as those jurors will likely believe he did something criminal, even if not something criminal to Andrea Constand.
Stay tuned for updates as the trial testimony starts on June 5.
UPDATE: The jury began deliberations on June 12, 2017. The jury asked several questions which bear on the issue of consent. Judge O’Neil has read back portions of Bill Cosby’s previous civil deposition. Cosby stated he wanted a romantic relationship with Constand. He acknowledged that he gave her three Benadryl pills which he described to her as “three friends.” to help her relax. If the jurors believe Constand gave consent, the verdict will be not guilty or in the alternative, a mistrial if all 12 cannot agree on a verdict. For Cosby, a mistrial would amount to a win.
Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor. She has prosecuted sexual assaults and defended those accused of sex crimes.