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Bill Cosby Rape Trial: Lawyers Clash In Day 1 Arguments

Deadline logo Deadline 6/5/2017 Dominic Patten
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“Trust, betrayal and inability to consent, that’s what this case is about,” Montgomery County Deputy District Attorney Kristen Feden said about Bill Cosby in her opening argument today, the first day of Cosby’s criminal trial for the alleged 2004 rape of Andrea Constand. The first day in a trial that could see The Cosby Show creator behind bars for more a decade saw two very different sides of what happened more than 12 years ago.

Feden and defense attorney Brian McMonagle presented opening remarks to the jury and a standing-room-only courtroom in Norristown, PA.

Repeating the phrase “trust, betrayal and inability to consent” several times Monday morning, Feden opened her presentation by dramatically saying, “these three friends will help you relax, his words” as she pointed at Cosby sitting stone-faced at the nearby defense table. “This case is about whether Ms. Constand had the ability to consent, and the answer is no.”

Asserting that “there are not a lot of facts here that are in dispute,” Feden pledged that the commonwealth would present “disturbing details” from Cosby’s own statements in what she called “a drug-facilitated sexual assault.” Calling out the defense in advance, she also asked the jury “to remember the defendant’s own words when they try to distract you” or drill in on inconsistencies in Constand’s story.

“Sexual assault is a terrible crime, it takes away dignity,” McMonagle told the jury in his sometimes bellowing opening statement. Only a “false accusation of sexual assault is worst — it’s an attack on human dignity, “ he added, raising his voice considerably in the courtroom. “Today I get a chance, with your help, to write a wrong,” the Philadelphia-based criminal attorney then said about Cosby,who he described as at worst as “a flawed husband whose infidelities has made him vulnerable.”

McMonagle added loudly, “a false accusation can ruin a life.”

“Halfway around the world and now the pants are off,” the aggressive lawyer said over and over in reference to how he believes a “lie” can distort what actually happened between Constand and Cosby more than a decade ago. “Don’t leave your common sense behind,” McMonagle told the jurors, almost leaning over into their seats.

“We are talking about all his tomorrows,” the lawyer said, pointing at the 79-year-old Cosby. “No distractions, no distractions!”

As was expected and predicted by implication by Feden in her remarks, McMonagle raised that in 2005 the then-Montgomery County D.A.’s investigation of the alleged rape found inconsistencies in Constand’s story. “I didn’t hear that!” the pacing and role-playing McMonagle said. Then he informed the jury that now back in Canada, Constand had reached out to and later retained a lawyer specializing in sexual assault.

Her story “unwraps,” the lawyer declared when Constand sat down with D.A. Bruce Castor’s staff and law enforcement. Drawing out the specter of inconsistencies but barely touching on the 2006 civil settlement between the parties, McMonagle then told the jury how Constand gave several versions of what happened when she was alone with Cosby and how often she actually met him.

In a 2005 civil deposition made public in 2015, Cosby said he had been intimate with Constand on several romantic occasions. He also admitted he gave several Benadryl pills to Constand when the then-Temple University basketball employee was at his Philadelphia-area mansion in 2004 on the day the alleged assault occurred. At that time, Cosby told Constand he was giving her a herbal supplement. In the later deposition, Cosby admitted that taking a couple of Benadryl would almost knock him out.

“When the defendant administered those pills to Andrea, he knew what effect it would take …what effect it would have on Andrea,” Feden said in her statement, noting a toxicology report and that Quaaludes, which Cosby also has admitted to possessing, cause a similar reaction. “You will never see Mr. Cosby under oath running from anything,” McMonagle said of the admission of having the pills, especially the ‘ludes “three decades ago” when they were “fashionable” among consenting adults.

In her earlier statement, Feden didn’t see the drug’s use or possession the same way.

“She looked to her trusted mentor and friend and told him what she was experiencing,” Feden recollected to the jurors of the effects the drugs had on Constand. “The last words she heard before she lost consciousness was, ‘I’m going to let you relax.’ ” In graphic language, the Deputy D.A. then detailed how Cosby “sexually gratified himself without risk of being rebuffed or rejected. She couldn’t consent, she was incapacitated, she couldn’t do anything.”

Feden today also listed for the jurors other witnesses that will be called. Those are expected to include a former William Morris assistant who says she was drugged and assaulted by Cosby in an almost identical manner in the mid-1990s. Naming the witness who has previously gone by “Prior Alleged Victim Six” or “Kasey,” McMonagle said the defense’s evidence will show the women had a long-term relationship with the actor and that her timelines didn’t add up.

Another witness will be Constand’s mother, who had telephone conversations with the actor after becoming aware of the alleged assault. In one of those calls, besides apologizing for what he insisted was a consensual encounter, Cosby offered to pay for graduate school for Constand as well as therapy among other things – portions of which will be played for the jury during trial.

Noting Cosby’s vast fame and cultural influence, Feden asked the jury to “put sympathy or bias aside” in their duty in the case. “You will see the defendant exactly as he is, a man who sexually assaulted Andrea Constand,” she declared.

“No one can predict how a person would act after a level of trauma that can’t even be put into words,” Bennett also told the jury in mainly even modulated tones “She didn’t want to be in that state of shock, she didn’t want to feel that embarrassed …she bottled it all up,” she then said in a much more raised tone intended to convey Constand’s state of mind and explain why she met up with Cosby on at least one occasion after the alleged assault occurred.

If found guilty by the jury of three felony charges of second-degree aggravated indecent assault against the then-Temple University employee, the 79-year-old Cosby could face more than 10 years in prison.

He was arraigned on December 30, 2015 and released on $1 million bail without entering a plea at the time.

The Norristown, PA based trial is the only criminal case against the much-accused Cosby. More than 60 women have gone public in recent years with claims of being drugged and/or sexually assaulted by the actor in instances going back to the late 1960s.

As he has before at pre-trial hearings over the past several months, Cosby sat at the front of the colonial-style courtroom on the third floor of the suburban Philadelphia courthouse. At points he could be seen joking and chatting with attorneys Brian McMonagle and Angela Agrusa as well as various other members of his entourage.

Cosby is not expected to be a witness in the case for his own defense.

Although scheduled to take the stand in the next few days, Constand was not in the packed pews of the courtroom this morning. The jury, from Pittsburgh, was brought in around 9:45 AM ET, but with the exception of the judge, the lawyers, Cosby and a few people seated at the front of the room, any view of seven men and five women was obscured. For almost all in the courtroom, a 6-foot wide and 5-foot high monitor blocked any look at the jurors.

As she has frequently in the past, lawyer Gloria Allred was also in attendance. Arriving with her own camera crew in tow, the media-savvy L.A. attorney told assembled media she was here as the representative of “Prior Alleged Victim Six,” or “Kasey.” The only other Cosby accuser permitted to testify here, the former assistant to Cosby’s now-deceased William Morris agent claimed during a 2015 press conference at Allred’s office that she was drugged and assaulted by Cosby in 1996 at the Hotel Bel-Air. “Victim Six” is expected to take the stand later this week, sources say.

Despite rumblings that Judge Steven O’Neill wants to see a swift trial, Day 1 started with a long set of instructions to the jury after some remarks to the court. “A lot has occurred in the last 18 months,” the judge told the lawyers, media and members of the public once the proceedings commenced, as he cautioned all to respect “the rules of this court, the rules of civility.”

O’Neill also asked the media throng both in his courtroom and in a spillover room to leave the sequestered jury alone. “Let them do their job, they are 300 miles away from home,” he said before the jury took their seats, were sworn in and received instructions. “I understand the access of a free press, but not now, let this trial play out,” he said.

“It is 2017, not 1917 — if it were sequestering you would be easy, but that ship has sailed,” O’Neill admonished to the jury in a folksy fashion about the perils of social media, a quick Google search or any other information-retrieval system in his instructions. “If they need you to know it,” O’Neill said, pointing at the prosecution and defense, “that’s where it comes from, not Google.” The judge also warned the jury that there could be Saturday sessions to move the trial along. “We will not work on Sunday,” he promised in his opening instructions. “Sunday is a day of rest.”

Before the jury was brought in, O’Neill did some housekeeping and denied a defense evidence-related motion. Saying he would “not postpone the trial to address the issues,” O’Neill also set a hearing after today’s session concludes to discuss other last-minute motions put forth by both sides.

The trial is expected to last about two weeks or perhaps longer. “This case will last a little while,” O’Neill warned the sequestered jury today, recommending they strap in for the long haul.

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