It’s a growing roster: The men who had power and national acclaim in their fields—be it films and television, media, politics or law—and saw their reputations tank in a matter of days as women continue to reveal allegations of sexual harassment or assault.
One of these men, Bill Cosby, is gearing up for a retrial over aggravated indecent assault charges stemming from an incident that allegedly occurred 14 years ago. (The trial is currently set for April.)
Cosby has faced multiple public accusations of sexual assault—accusations that are now inextricably linked with an escalating national conversation on sexual assault.
By the end of 2014 allegations against Cosby had snowballed, as dozens of women came forward and said he had sexually assaulted them. Many went to the press. Others filed civil lawsuits, some of which are still pending. And Cosby’s reputation as America’s dad unraveled.
To date, only one of his accusers, Andrea Constand, has seen her allegations result in criminal charges. At trial, Cosby’s lawyers contended that Constand was untruthful, arguing that there were inconsistencies in her accounts of the alleged assault.
After a weeklong trial and a week of jury deliberations in Cosby’s case last June, a Pennsylvania judge declared a mistrial after jurors were unable to agree on a verdict.
Prosecutors pledged to retry the case. But since that first trial in June 2017, a storm has hit.
On Oct. 5, a piece by The New York Times revealed allegations by multiple women that movie mogul Harvey Weinstein had sexually harassed them. As days went on, the number of stories grew and came to include allegations of sexual assault, according to more reporting by that paper. Weinstein has apologized and has disputed the allegations against him. But that did nothing to quiet the conversation.
On Oct. 15, actor Alyssa Milano posted a tweet encouraging others to reply “me too” if they had ever been sexually harassed or assaulted. Tens of thousands of people responded to Milano’s tweet alone, as #MeToo became plastered across various social media platforms. Women, both celebrities and the nonfamous, came forward with allegations against powerful men, and people were listening.
Weinstein faced professional consequences nearly immediately, getting fired from the company he co-founded within days of the Times report, and as other men faced accusations, they too saw their reputations and careers take a turn.
Matt Lauer was fired from NBC after the company received a detailed complaint accusing him of sexual misconduct, according to NBC’s statement about his termination. CBS fired Charlie Rose less than a day after The Washington Post published allegations by eight women who say Rose sexually harassed them. Netflix cut ties with actor Kevin Spacey, and he was cut out of an upcoming film after multiple people publicly accused him of sexual misconduct, according to press reports.
In the legal sphere, former Ninth Circuit Judge Alex Kozinski quickly announced his retirement late last year, after several women publicly alleged that he sexually harassed them, including inappropriate comments, and allegations by four that he touched them inappropriately, according to a Dec. 15 report in The Washington Post.
In a mid-December statement, Kozinski said that many of the allegations against him were untrue, but apologized for making any of his clerks feel uncomfortable. Lauer, Rose and Spacey have also offered various apologies.
While the country watches these men face quickly unfolding consequences, lawyers from the Montgomery County District Attorney’s office in Norristown, Pennsylvania, are preparing for Cosby’s second trial. And Cosby’s new defense team, Tom Mesereau of Los Angeles, Nevada lawyer Kathleen Bliss and local counsel Sam Silver of Schnader, Harrison, Segal & Lewis, is doing the same. [Ed note: Since this story went to print, Cosby's defense team has added Becky James of Greenberg Gross, and local counsel Samuel Silver has filed a motion to withdraw as counsel. As of Feb. 2, that motion is listed in the docket as pending, and Lane Vines of Berger & Montague in Philadelphia has entered his appearance in the case.]
“Your jury pool is now educated,” said Gina Maisto Smith of Cozen O’Connor, who chairs a practice group focused on institutional response to sexual misconduct. “Your jury pool is now saturated with the discussion … more in tune, aware, open to understanding and hearing about the psychological journey and impact of a sexual assault on an individual when the alleged perpetrator is a person who the individual knows and cares for.”
NO LONGER ‘UNTOUCHABLE’
Since December 2015, when prosecutors in Montgomery County, Pennsylvania, announced charges against Cosby, his defense lawyers have questioned whether it’s possible for their client to face a fair trial. Among other concerns, they contended it would be impossible to find jurors who had not heard of the numerous public allegations against Cosby.
Now, lawyers said, that concern may be ever more present.
“One of the considerations of the attorneys picking the jury, whether they’re able to address it or not, will be the residual effect, whether there’s backlash or not, from this ‘me too’ stuff,” said Joseph McGettigan, of McAndrews Law Offices, a former Pennsylvania prosecutor who has experience in high-profile criminal cases, having led the prosecution of serial child molester Jerry Sandusky in 2012.
“Jury selection is going to be even more critical here” for the defense, McGettigan said. “As a prosecutor, I’d be worried about this, too, because the defense is only looking for one” person with reasonable doubt.
Once the jury is chosen, McGettigan said, Cosby’s defense may choose to frame Constand’s story as just one in a wave of allegations brought too late by alleged victims. McGettigan’s partner, Dennis McAndrews, also a former Pennsylvania prosecutor, said some people might latch on to that.
“As the prosecutor, my fear is that you get one or two holdouts … who believe that a lot of these allegations are either made up or overblown,” McAndrews said. Still, he noted, “There’s another segment of the population that says we should believe every woman because there’s no incentive to make it up.”
That segment of the population may be growing, McAndrews and others said, as a result of the recent wave of allegations against powerful men.
Gloria Allred, who represents many of Cosby’s accusers, as well as one of Weinstein’s accusers, said she speculates the ‘Me too’ movement could impact Cosby’s jury, even though jurors are instructed to consider only the evidence presented in court.
“There have been accusations against many rich, powerful, famous men, [and] it would be difficult for anyone to ignore that,” Allred said. “The public in general is more believing of women who make the accusations now than they ever were before.”
Constand has alleged that Cosby drugged her at his home in Cheltenham, Pennsylvania, then digitally penetrated her vagina without her consent. She has said it happened in early 2004, but she did not tell police until 2005. Cosby’s lawyers have repeatedly drawn attention to that delay, and raised questions about Constand’s recollection of the alleged assault.
Cozen O’Connor’s Smith said the increasing national conversation about sexual assault creates “more fertile ground for the prosecution to explain the delay in reporting and the context for the consent consideration.”
“The me too element will impact the capacity of the jury pool to be open to these questions and to analyze the tough, complex analysis of sexual assault and consent-based sexual assault,” Smith said.
Leslie Gomez, Smith’s colleague and vice chair of Cozen O’Connor’s institutional response group, said the recent allegations against celebrity men make some men no longer seem “untouchable.” Despite their earlier reputations and philanthropy, men like Weinstein and Cosby are losing their careers.
“Part of the challenge in this case is that Cosby is such an iconic father figure. It’s that much harder to prove a credibility case when you have someone with such a good reputation or public image,” Gomez said. But the ‘me too’ movement “targeted individuals in the industry who otherwise seemed to have a similar reputation.”
Recent months have shown that sexual assault “can happen with individuals who we previously thought could not be capable of that kind of conduct,” she said.
McAndrews and McGettigan, who both attended and observed Cosby’s first trial as members of the public, said an outright acquittal at retrial seems unlikely. “I’m more worried about this if I’m Bill Cosby,” McAndrews said. “People are being credibly accused, and many of them are admitting it … they’re quitting their jobs and they’re being fired.”
Andrew Wyatt, a spokesman for Cosby and his legal team, said they declined to be interviewed for this story and would not be engaging in any pretrial interviews. “Our attorneys, along with Mr. Cosby, prefer to try this retrial in the courtroom, not in the media,” Wyatt said in an Dec. 29 email.
Kevin Steele, the Montgomery County District Attorney leading Cosby’s prosecution, declined to be interviewed about the retrial. But in a Jan. 5 e-mail statement to the National Law Journal, he made note of the increase in alleged victims coming forward.
“As I said in June after the jury was unable to reach a unanimous verdict, one of the positive outcomes from this trial is that we hope women who have been victims of sexual assault—and especially drug-facilitated sexual assault—will feel that they can come forward and be heard and face their assailant, knowing that they will be treated with the respect that they deserve,” Steele said. “And for a number of reasons, that seems to be happening now across the country.”
The outcome of Cosby’s retrial is just as much a landmark in the national conversation on alleged sexual misconduct as it is impacted by that conversation.
“We have been evolving on this journey for many, many years,” Smith said, since long before Weinstein was accused, and before Cosby was charged. Still, she said, “we’re at the beginning of this conversation.”
Weinstein, Lauer, Rose and Kozinski all found their careers and personal lives derailed by the allegations against them. None of them have faced criminal charges as of mid-January, though the Los Angeles District Attorney’s Office said it is reviewing allegations against Weinstein. “Two cases have been presented to our office by the Beverly Hills Police Department regarding Mr. Weinstein and are under review,” Sarah Ardalani, a public information officer with the office told The NLJ in a Jan. 12 e-mail.
And in New York, police are investigating allegations against Weinstein, Chief of Detectives Robert Boyce said Dec. 4. So are authorities in London according to reports by NPR and others.
As for Cosby, he has now seen his accuser take the stand and describe the alleged assault under oath in open court. (Constand also entered into a confidential settlement with Cosby in 2006, but a federal judge ruled in 2016 that her cooperation with prosecutors didn’t violate the settlement.)
“There are high profile men who complained they didn’t get due process, well, Bill Cosby is certainly getting due process in the court of law,” Allred said.
Constand’s case also stands out because she did not have celebrity on her side when she brought the allegations, Constand’s longtime lawyer, Dolores Troiani, noted. The ex-basketball player and massage therapist from Canada didn’t get to know Cosby through television or modeling but through her job at Temple University, where Cosby was involved and influential.
“Andrea was not part of that [Hollywood] crowd, and the ladies who are coming forward now, they were,” Troiani said. “They had far more power than she did. She was unique.”
Because of that, she said, Constand’s case can’t be held equal with the other allegations against powerful men, and the verdict should not be seen as a bellwether.
But Smith, of Cozen O’Connor, said Cosby’s trial will leave a lasting effect, no matter the outcome, by way of the public record it creates. “It will advance the ball on this conversation either way,” Smith said. “It will allow individuals to understand the complexity of these cases … and the grave consequences.”