You know it\u2019s a high-stakes, high-profile sexual assault case when spotlight-seeking L.A.-based lawyer Gloria Allred shows up first thing, a documentary film crew in tow. And there she was on cue on Monday, day one of Commonwealth v. William Henry Cosby, Jr., chatting up the media as she entered court. The day was a \u201chistoric one,\u201d she said, \u201cbecause it\u2019s the first time Mr. Cosby has been held accountable.\u201d When asked if she expected surprises, she said, \u201cYes, I expect the unexpected.\u201d Minutes later, Bill Cosby arrived arm-in-arm with Keshia Knight Pulliam, who played his youngest daughter, Rudy, on The Cosby Show. His real-life family was nowhere to be seen.<\/p>\n
It was a day of unexpected twists, first impressions and botched strategy. In a move that combined all three, the prosecution chose not to put complainant Andrea Constand on the stand as the first witness. Instead, it called Allred\u2019s client Kelly Johnson, who came forward in 2015 to allege Cosby drugged and sexually assaulted her at the Hotel BelAir in 1996. Johnson, who didn\u2019t report to police, is a \u201cprior bad-acts witness,\u201d someone whose testimony can corroborate a defendant\u2019s pattern of behaviour.<\/p>\n
The fact that nearly 60 women have accused the Cosby of drugging and assaulting them are immaterial in Courtroom A of the Montgomery County Courthouse. This case is about only one: allegations by Canadian Andrea Constand that Cosby drugged and assaulted her in 2004. Cosby has pleaded not guilty. In pre-trial hearings, the prosecution sought to admit testimony of 13 of Cosby\u2019s accusers under \u201c404(b)\u201d evidence, which is allowable in Pennsylvania. Only Johnson\u2019s was admitted. It was a huge victory for the defence, but also one for the prosecution. Having such witnesses is seen to help weigh the scales of justice in favour of the prosecution.<\/p>\n
Johnson\u2019s tearful testimony directed by assistant district attorney Stewart Ryan was wrenching. But would implode later under cross-examination by lead defence counsel Brian McMonagle. In the process, it created undeniable \u201creasonable doubt,\u201d in which the jury had been schooled in an hour of instruction by Judge Steven T. O\u2019Neill, of the Montgomery Court Common Pleas. O\u2019Neill, a dark-haired, bearded man with a loquacious tendencies and wry humour, explained to the jury: \u201cI\u2019m not the judge of facts. You are. You are the sole judges of the facts\u2026and to decide if the defendant has been found guilty beyond reasonable doubt.\u201d He told them that lawyers\u2019 statements don\u2019t count as \u201cevidence.\u201d Only witnesses\u2019 statements are.<\/p>\n
Still, first impressions can be indelible. Before Johnson took the stand, opening arguments kicked off with assistant district attorney Kristen Feden\u2019s repeating a mantra about Constand: \u201cTrust. Betrayal. Inability to consent.\u201d Facts are not in dispute, she told the jury. \u201cThere\u2019s no dispute [Cosby] gave her pills. There\u2019s no dispute that after she ingested, he engaged in sexual contact. There\u2019s no dispute he inserted fingers in vagina. The question here is whether Andrea Constand had ability to consent.\u201d She warned of falling prey to distractions.<\/p>\n
The jury has question to consider, she said: \u201cWhat happened next after she took those pills? This is about one man this man who used his power and fame and previously practiced methods so he could put her in an incapacitated state so he could pleasure himself.\u201d<\/p>\n
McMonagle, a prominent Philadelphia trial lawyer whose past clients include mobsters and the Roman Catholic Archbishop of Philadelphia during the priest-pedophile scandal, played the jury masterfully, riffing off the mention of \u201cdistractions.\u201d He\u2019d lean, speaking softly, then walk away, raising his voice in indignation or outrage, occasionally to a squeak. \u201cThe only thing worse than the horrible crime of sexual assault,\u201d he said, \u201cis a false allegation of sexual assault.\u201d \u201cIt\u2019s an attack on human being. Its not a distraction. It can destroy a man; it can destroy his life; it can destroy his future.\u201d That\u2019s why the threshold of beyond reasonable doubt is the highest anywhere in world, he said: \u201cAt end of trial you will understand why the burden is so high. We\u2019re talking about somebody\u2019s tomorrows.\u201d<\/p>\n
Cosby trial jurors had been handed a heroic task, he suggested. \u201cSometimes it\u2019s hard to sit on that side of courtroom,\u201d he said pointing to the defense table where Cosby sat. \u201cNot today. Today, I have a chance with your help to save a man from the destruction of his life.\u201d He again pointed to Cosby. \u201cAs you look there what do you see? A brilliant comedian who made us smile when it was hard to smile. A husband whose actions have made him vulnerable. And you may see a man, someone who has achieved greatness and who has endured unendurable personal tragedy [a reference to the death of Cosby\u2019s son Ennis in 1997]. I hope you will see just a citizen who is presumed innocent.\u201d He spoke about court protecting the \u201cliberty of citizens.\u201d And he referenced Cosby\u2019s reported blindness: \u201cUnfortunately, when he looks back he cannot see. I am his eyes in courtroom; it is up to me to describe you.\u201d<\/p>\n
Lines of attack were foreshadowed. Constand had \u201cbeen untruthful in statements to law enforcement time and time and time again,\u201d McMonagle said. Her relationship with Cosby was \u201cromantic\u201d and consensual, he claimed. Contrary to Constand\u2019s first statement she didn\u2019t have contact with Cosby after the alleged assault, the two exchanged 72 phone calls after\u2014some lasting 30 to 40 minutes. Constand initiated 53 of those calls, he said. After \u201cexhaustive\u201d investigation in 2005, Montgomery Court D.A. said no charges. Then Constand went to a lawyer and launched a civil suit. McMonagle too had a favourite mantra: \u201cA lie can travel halfway around world before truth puts its pants (on).\u201d He dangled the fact Constand changed the date of the assault from March 16, 2005 to early January. \u201cYou will see why that date got switched and why burden of proof is so high,\u201d he said cryptically.<\/p>\n
He also explained how the second witness would be undermined, noting they\u2019d seized key information only three days before the jury pool was selected. That witness and Cosby became intimately involved in 1990 not 1996. She\u2019d got the dates of the alleged assault mixed up from an earlier deposition given in a workman\u2019s compensation case with her employer. She\u2019d received money from Cosby.<\/p>\n
Johnson gave emotionally charged testimony to the D.A. She met Cosby in 1990 when she was working at William Morris Agency. He was then \u201cone of, if not the most, important client at WM agency.\u201d She developed a friendly relationship, often leaving her desk to speak to him privately, on his request. Johnson, who is black, said: \u201cI had upmost respect and admiration for him based on what other Americans\u2014and especially African Americans thought of him\u2014based on The Cosby Show. He called her at home, she said. He took an interest in her family. He\u2019d speak to her sister and recommended an acupuncture for her grandmother. She took her family to see him perform.<\/p>\n
She spoke of Cosby once calling her to his house to deliver dinner and discuss set-blocking in TV production; she said she had no interest in the topics. When she got there he handed her a script that required she act tipsy and then embrace and kiss Cosby. She says they did repeated takes and she was uncomfortable\u2014and refused to kiss him. Later, she said, he invited her for lunch at the BelAir to discuss her career. She arrived to find him in a private bungalow in a bathrobe and slippers. Lunch was ordered in with wine. He opened his hand; in it, she said, was a large white pill to help her relax. She said she didn\u2019t want it and asked what it was. \u201cWould I give you anything to hurt you? Trust me it will help you relax,\u201d Cosby told her. She said she was intimidated, nervous, wanting to run out the door, she said. \u201cBut this was Mr. Cosby.\u201d She put the pill under her tongue and pretended to swallow. \u201cAnd he said lift up your tongue open your mouth. I did and there it was.\u201d She said he instructed her to swallow and she complied.<\/p>\n
Johnson, who spoke slowly and softly during testimony, said she woke up in bed to find her dress pulled down and up: \u201cI felt naked but the dress wasn\u2019t off of me.\u201d Cosby was standing by the bed, she said: \u201cI could see lotion on one of the nightstands. He put lotion in my hand.\u201d She stopped and paused, and began to cry. The D.A. asked what happened: \u201cHe made me touch his penis.\u201d She began to cry and took a sip of water. She left William Morris after going to the firm\u2019s HR department to complain.<\/p>\n
The defence dismantled her testimony, raising questions about her recall of events more generally. On many questions she said she couldn\u2019t remember. She appeared flustered. McMonagle asserted a deposition given concerning workers compensation in 1996 alleged the BelAir assault happened in 1990, yet she went to Cosby\u2019s house in 1996 for a possible TV role. In a bizarre line of inquiry about her taking drugs in the 1990s\u2014something that has nothing to do with sexual assault\u2014McMonagle asked Johnson if she did cocaine with musician Maxi Priest, the father of her son. She denied it. He also grilled her about not mentioning she accepted $400 from Cosby for her ailing grandmother, and $100 to have her hair done. McDonagle took a swing at Allred\u2019s involvement, hinting Johnson was in it for fame or money. Johnson denied Allred prepared the text she read at a press conference. She wrote it herself she said. Repeatedly Johnson answered \u201cI don\u2019t recall.\u201d McMonagle ended the cross examination in mock frustration: \u201cDid anyone tell you to get medical amnesia in this case?\u201d<\/p>\n
There\u2019s definite irony in the fact that, just as the prosecution brought Johnson in to suggest a pattern, McMonagle was doing the same, as he had intimated in his opening argument: \u201cYou\u2019re going to see that what happened is eerily similar to Ms. Constand,\u201d he said of Johnson.<\/p>\n
The cross-examination undermining Johnson stealthily set in motion a reverse pattern of behaviour countering Cosby\u2019s alleged M.O., one that could haunt Constand in her testimony to come: the spectre of women filing false and unreliable sexual assault charges against a victimized Bill Cosby. In his opening arguments to the jury, McMonagle urged compassion. \u201cTry to be the kind of jurors in this case that you would want if it was your grandfather or your father or your son or you,\u201d he said. That, of course, is a jury destined to acquit. At the end of day one, the prosecution\u2019s case certainly didn\u2019t do anything to tip the scales in the opposite direction.<\/p>\n
By: Anne Kingston<\/p>\n
Source:<\/p>\n
http:\/\/www.macleans.ca\/culture\/bill-cosbys-accusers-are-already-under-attack-at-his-trial\/<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"