Having been a prosecutor for almost two decades, and a criminal defense attorney before that, rarely have I seen the same case tried twice under such different social conditions as the retrial of “America's Dad,” Bill Cosby.
Social Climate Change
When it comes to the credibility of sexual assault accusers, the pendulum has swung. In the #MeToo era, the voices of victims are loud and clear, and have become louder over the last six months, as those who previously suffered in silence have become inspired and empowered to come forward, experiencing safety in numbers.
But will a victim´s enhanced credibility within the court of public opinion carry the same weight in a court of law? We are about to find out, as former Jell-O Pudding star Bill Cosby is about to be retried for sexual assault.
His first trial, charging three counts of aggravated assault relating to a 2004 incident with Andrea Constand, ended in a hung jury last June. But that was then, this is now. Much has happened since then, as the avalanche of public allegations against prominent figures began last October. Much has happened inside the courtroom as well. Not only has Cosby switched up his legal team, now being headed by attorney Thomas Mesereau, who famously acquitted the late Michael Jackson, the judge in the case has switched up his rulings.
5 Other Women Will Be Permitted to Testify #MeToo
This time, instead of permitting only one witness to testify in addition to Constand, the only victim whose case fell within the statute of limitations, Judge Steven O’Neill will now permit five additional complaining witnesses to take the stand. The significance? Their testimony, if believed, can be used by the jury to establish a pattern of behavior that will corroborate the allegations of Constand.
But the defense has scored some legal victories in terms of court rulings as well. Judge O'Neill is considering permitting evidence and testimony that could impeach Constand's allegations, including evidence relating to Constand´s original lawsuit against Cosby in 2005, as well as the terms of the settlement.
Yet neither side is celebrating prematurely, because Judge O´Neill has stated he will revisit his evidentiary rulings as the trial progresses and the evidence comes in.
The #MeToo Movement as Both a Sword and a Shield
Not everyone following the string of public allegations, despite the frequent resulting firings and resignations of the perpetrators, is inclined to view victim testimony more favorably. Some have expressed concerns about injustice due to the lack of due process afforded the suspects, doubt about the scope of “misconduct” alleged, and would likely perceive victim testimony with caution.
Such skepticism will be important in Cosby's retrial, because in terms of witness testimony, the evidence jurors will hear from the witness stand will be very different from what the rest of the world hears on the news. Unlike the court of public opinion, where anything goes, in a court of law, statements must pass both legal and evidentiary hurdles in order to be admissible.
And once testimony is received, instead of being retweeted, re-posted as a meme, and re-aired followed by commentator's opinions, it is subjected to rigorous cross-examination, as well as a variety of objections. And of course, as in the last trial, jurors will again be sequestered, and not permitted to watch any media coverage of the case outside the courtroom.
Justice Delayed Is Not Justice Denied
All of these factors taken together predict that Cosby's trial beginning this week will be a very different trial than Cosby had in 2017. The verdict will definitely reflect a sign of the times.
And for all of the other women who have come forward to accuse Mr. Cosby who will not be in the courtroom, if the jury returns a conviction, justice delayed will not have been justice denied.
Wendy L. Patrick is a career prosecutor, named the Ronald M. George Public Lawyer of the Year, and recognized by her peers as one of the Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript. She has completed over 150 trials ranging from human trafficking, to domestic violence, to first-degree murder. She is President of the Association of Threat Assessment Professionals San Diego Chapter and an ATAP Certified Threat Manager. Dr. Patrick is a frequent media commentator with over 2,500 appearances including CNN, Fox News Channel, Newsmax, and many others. She is author of "Red Flags" (St. Martin´s Press), and co-author of the revised version of the New York Times bestseller "Reading People" (Random House). On a personal note, Dr. Patrick holds a purple belt in Shorin-Ryu karate, is a concert violinist with the La Jolla Symphony, and plays the electric violin with a rock band. To read more of her reports — Click Here Now.
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