If I Were Bill Cosby, I’d Be Scared — Very Scared

The second go-round of the trial against comedian Bill Cosby, accused of three counts of aggravated indecent assault, starts today.  Cosby’s first trial ended with a hung jury last June, but a lot has changed since then.

This time around, it will take a miracle to keep him from being convicted and ending up with a stiff jail sentence.

What’s different?

First, the judge (the same one who presided at the first trial) ruled that prosecutors can put on the stand five women in addition to the complainant, Andrea Constand, to talk about how Bill Cosby sexually assaulted them.  (In the first trial, only one woman other than Constand spoke of Cosby’s inappropriate behavior.  Ironically, she won’t be one of the witnesses this time.)

Each woman will testify that Cosby invited her to his home, hotel room or party and, with slight variations on the theme, slipped something in her drink that made her drowsy.  When they woke from their stupor, Cosby was doing or had just finished doing something unwanted of a sexual nature to them.

How does a defense attorney fight that!  The mere quantity of witnesses is devastating.  Although the judge will instruct jurors that they cannot use the evidence to conclude that Cosby has a “propensity” to commit such crimes — come on, what else would anyone think hearing such evidence?

If the defense attorney cannot undermine the credibility of each and every one of these new witnesses (as the first defense attorney did of the woman permitted to testify at the original trial), their collective testimony will be devastating.

Maybe one accuser could be lying, exaggerating, or have a motive to blackmail Cosby for his money, but six women all telling a similar tale? Unless they all belong to a secret anti-Cosby society worthy of a Dan Brown novel, this alone will sink him.

And then there’s the #MeToo movement.  Public condemnation of men accused of sexual harassment and assault has snowballed in the last 10 months. The pendulum has now swung wide to the other side of when such allegations were ignored or swept under the rug.  In this moment of history, that swing is quickly and severely punishing every accused person in its arc following a mere accusation.

Allegations that even last summer might have been seen through the lens of a presumption of innocence, are today believed to be true simply because they’ve been made.  This is difficult ground to deal with as a defense attorney.

In figuring out who would be the best jurors for such a case, the lawyer must probe their personal opinions without crossing the line and offending them or appearing out of touch.  Lawyers in the recent acquittal of Yale college student Saifullah Khan found a good formula in choosing older jurors over younger ones.

The Cosby jurors are anonymous.  I’ve read that the panel is composed of 10 Caucasians, one black man, and one black woman.  But race doesn’t matter as much as age.  The racial breakdown tells me nothing about how they’ll interpret the “presumption of innocence” in this hyper-vigilant time which, to compensate for past ills, has shifted the burden of proof to the defendant and presumption of innocence to one of guilt.

The good news for Cosby (although I submit, not enough for him to be acquitted) is that the judge will permit a witness for defense, Marguerite Jackson, to challenge Andrea Constand’s motives. (She was prohibited in the first trial.)  According to Jackson, a co-worker of Constand’s at Temple University, Constand told her she made up the charges to extort money from Cosby.

In another defense-favored ruling, the judge will not permit jurors to hear that Cosby admitted to buying quaaludes then giving them to women who had sex with him.  These admissions came from a deposition he gave in a 2005 civil law suit against him.

Cosby has also retained a new lawyer, Tom Mesereau, a well-seasoned litigator who’s defended and won cases big cases for Michael Jackson, Mike Tyson, and Robert Blake.

I’m sure Mesereau’s top at his game, but he’ll have his work cut out for him to win this one.

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Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.