PHILADELPHIA — The #MeToo movement will be looming over the proceedings when jury selection gets underway Monday in Bill Cosby’s sexual assault retrial. But experts say that could cut both ways for the comedian.
It could make some potential jurors more hostile toward him and others more likely to think men are being unfairly accused.
“We really have had this explosion of awareness since that last trial, and it has changed the entire environment,” said Richard Gabriel, a jury consultant who has worked on over 1,000 trials. “It is a huge challenge for the defense, but it could also provide an avenue and open up the topic.”
A jury deadlocked last June at the former TV star’s first trial after Cosby’s lawyers managed to sow enough doubt in the minds of a few jurors. That was before the #MeToo movement against sexual misconduct started toppling famous men in rapid succession, among them Harvey Weinstein, Matt Lauer, Kevin Spacey and Sen. Al Franken.
Veteran lawyers and jury consultants say #MeToo will make the process of picking 12 jurors more complex and raise the stakes even higher.
The defense is likely to use attitudes toward the movement to weed out jurors.
“There may be a juror who says, ‘I don’t have an opinion about Cosby, but the #MeToo is very important to me,’” said Melissa M. Gomez, a jury expert and author of the book “Jury Trials Outside In.” ”That person is still very dangerous to the defense.”
Cosby, 80, is charged with drugging and molesting Andrea Constand, a former Temple University athletics administrator, at his suburban Philadelphia home in 2004.
Last year, after more than 52 hours of jury deliberations over six days, the judge declared a mistrial. One juror said the panel was split 10-2 in favor of conviction, while another said the group of seven men and five women was more evenly divided.
A juror who spoke to The Associated Press on condition of anonymity said he was suspicious of Constand’s story, questioning why she waited to tell authorities about the alleged assault and suggesting the clothing she wore to Cosby’s house had influenced his view of their encounter.
The AP does not typically identify people who say they are victims of sexual assault unless they grant permission, which Constand has done.
In the first trial, jury selection was moved to Pittsburgh over defense fears that widespread publicity could make it difficult to find unbiased jurors in the Philadelphia area. Cosby has a retooled legal team, led by former Michael Jackson lawyer Tom Mesereau, which didn’t seek such measures this time.
Last year’s case was mostly he-said-she-said, but the judge agreed last month to let the jury at the retrial hear from an additional five women who have accused Cosby, giving prosecutors a chance to portray the man once known as “America’s Dad” as a serial predator.
“It’s going to be much more difficult for the defense to chip away at all six, especially if there is a common thread and story,” Gomez said. “That shows a pattern of behavior.”
Typically prosecutors and defense attorneys can take what happened at the first trial, learn from it and improve on it in the retrial. But some experts say the climate surrounding sexual assault has changed so thoroughly that both sides should go back to the drawing board.
“There is no question that this is a very difficult time to try someone who has been accused of sexual assault,” said Harvard Law School professor Alan Dershowitz. “For some jurors the whole movement will be on trial, because Cosby has been the poster person for this kind of accusation.”
At a hearing last month, Cosby lawyer Becky James argued it would be difficult to find an impartial jury in this climate: “There’s no way we will get a jury that hasn’t heard these allegations against not just Mr. Cosby but many other celebrities.” But Judge Steven O’Neill scoffed at the notion Cosby cannot get a fair trial.
Jury experts said the key is getting potential jurors to open up about their personal experiences surrounding sexual assault and misconduct, something that might be better done behind closed doors, in the judge’s chambers, where people might be more likely to speak freely.
“Without getting it out in the open, it can be underneath the surface,” Gabriel said. “The hidden bias is always the most dangerous bias.”
Philip K. Anthony, CEO of trial consultant firm DecisionQuest, said he has found jurors often don’t know as much about newsy topics like the #MeToo movement as lawyers might anticipate. He also said he has found jurors want to do the right thing.
“In a case with a lot of notoriety, jurors work even harder to reach a fair and impartial decision,” he said.
