Prosecutors Turn the Tools Used on Survivors Against Bill Cosby

By Diana Moskovitz | April 10, 2018 | 12:32am

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NORRISTOWN, Pennsylvania — The retrial of Bill Cosby on three counts of aggravated indecent assault finally began on a cold Monday afternoon with a different type of opening statement from Montgomery County District Attorney Kevin Steele. His main point is the same as the prosecution’s was last year—he believes that Cosby gave Andrea Constand pills to make her unconscious and then sexually assaulted her in 2004—but his opening statement took a different approach than the one given last year by prosecutor Kristen Feden. Having a better idea of what worked and what didn’t, Steele seemed to be taking the tools typically used to shame women who say they were sexually assaulted (calling it a “he said-she said,” and pointing to prosecutor-driven delays and a hefty settlement) and using them to point to Cosby’s guilt.

It was Steele who brought up the settlement between Cosby and Constand. What was expected to be a big moment for the defense—dropping the total dollar amount ($3.38 million) that Cosby paid out to Constand—instead was delivered by Steele. It was Steele who first tackled the concept of a “he said-she said” case. It was Steele who talked about why the case took so long to reach charges by prosecutors. He talked a lot about trust—and how, he said, Cosby betrayed the trust that Constand had in him.

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“In January of 2004,” Steele said, “that trust was betrayed. It was betrayed because he used words. He used words to try to get her to take pills. Then he used words to try to encourage her to drink something and, because of that trust, she did. And that leads to what happened. It lead to a woman being incapable of making a decision—a decision about something that was going to happen. Incapable. And then, ladies and gentlemen, the defendant sexually assaulted her.”

Steele used large screens in the courtroom to show evidence. The first thing he put up, in all capital letters, was “YOUR FRIENDS, I HAVE THREE FRIENDS FOR YOU TO MAKE YOU RELAX.” He then talked about the idea of a “he said-she said story” and used it to segue into a discussion of the Cosby deposition that came out of Constand’s 2005 civil lawsuit. Steele used portions of the deposition transcript that showed Cosby talked about giving Constand Benadryl, which Cosby admitted would make him sleepy, and also a portion where Cosby said he didn’t tell Constand what it was.

“When you are listening to the testimony in this case,” Steele told them, “the ‘he said’ and ‘she said’ are very similar in so many respects.”

As happened last year, Steele presented a thoroughly modern concept of consent—the kind that women have fought for. He told the jury that what mattered was that Constand did not say yes. (“We all know that’s a woman’s right,” he said.) As for why the case took so long to come to a jury, he went over the timeline of events—including when the deposition became public—and emphasized that it was authorities who reopened the investigation and reached out to Constand about this case, rather than the other way around.

Next, Steele brought up the settlement, a figure that had been shrouded in secrecy. Cosby’s defense team had fought to use the settlement during this trial while questioning Constand to portray her as “greedy.” (The dollar figure was not brought up in the previous trial.) Steele mentioned it and also showed a piece of the settlement agreement itself. The text said that, per the agreement, Constand, her mother, Cosby, lawyer Marty Singer, and the company that owned the National Enquirer, American Media, were all barred from talking about anything that wasn’t already in the public record.

Steele conceded that this was not an admission of guilt, but did go over the details of an “educational trust” that Cosby’s people at the time wanted to set up for Constand. Steele went over a message that Singer left regarding the trust. He went over the pieces from Cosby’s deposition talking about the trust. He then told jurors, “That’s what he said.”

Steele methodically went over each charge and explained why he felt that the evidence proved the claims against Cosby and warranted a conviction. He told jurors, again, that they could convict Cosby if they believed Constand. He closed by telling jurors, “You all will be able to do justice in this case.”

Jurors, though, only heard from one set of lawyers today. Opening arguments for the Cosby defense team are scheduled for Tuesday. The judge sent the jurors home for the day, then heard from lawyers in his chambers regarding several things the defense wants to present during its opening statement.

In other developments:

Monday’s late start was because the morning was spent figuring out whether a juror would be dismissed. Cosby’s defense lawyers filed a motion on Friday asking to dismiss a juror. The request was made after defense lawyers heard from a potential juror, who had been dismissed, with her concerns about someone who had been seated on the jury. The defense motion included an affidavit from a private investigator, who described what the potential juror had told them:

Resolving this meant that opening statements didn’t start until close to 3:30 p.m. ET. The final resolution wasn’t clear—no formal announcement was made in court—but all the same jurors were present for the prosecution’s opening statement as had been there to start the day.