Cosby Trial Begins With Aggressive Opening Statements and an Emotional First Witness

by Jessica Goldstein –

A powerful first day for the only criminal case against Bill Cosby.

Andrea Constandt and Bill Cosby

The long-awaited criminal trial of Bill Cosby began on Monday with searing opening statements and the prosecution’s first witness, a woman who alleges Cosby drugged and raped her in 1996.

Though nearly 60 women have accused Cosby of sexual misconduct, only one filed criminal charges within the statute of limitations and has been able to take her case to court: Andrea Constand, who first pursued legal action against Cosby back in 2005, one year after she claims he drugged and sexually assaulted her at his home in a Philadelphia suburb. Cosby stands accused of three counts of aggravated indecent assault and, if convicted, could spend ten years in prison.

After over an hour of opening instructions from Judge Steven O’Neill, prosecutor Kristen Feden kicked off opening statements. Her refrain: Most of the facts of the case are not in dispute, and this trial is fundamentally about “trust, betrayal, and the ability to consent.”

Feden began with a steady, unflinching description of Constandt on the night of the alleged assault. After taking pills that Cosby offered Constandt “in that fatherly voice that so many of us know so well,” Feden said, Constandt felt “the strength in her limbs began to drift away.”

Before long, Constandt was incapacitated. “Total control of her body, lost. Actually, stolen, through the actions of the defendant, so that he could sexually gratify himself without the risk of being rebuffed or rejected, as he had been in the past,” Feden said. “In that moment, he stole away her sense of privacy, her sense of autonomy into her own body.”

It was only after she set up this image of Constandt as “completely powerless, frozen, lifeless,” that Feden turned to Cosby and his lofty place in the pop cultural pantheon. (She did not refer to him by name until halfway through her statement.) “The man sitting here, accused of very heinous crimes, is a man that many of us recognize,” she said, gesturing toward Cosby. “Dr. Huxtable [was] a role that, in a nation that is often divided along racial lines… is able to transcend race…and any barrier.”

Constandt, Feden said, held that same “illusion” about Cosby. In the moment of the alleged assault, it was “shattered.”

Much of Feden’s opening argument was spent contextualizing what could scan as Constandt’s inconsistent — and, by extension, untrustworthy — behavior, including her continued contact with Cosby after the alleged assault. Constandt will “be brutally honest with you” about her choices, Feden said, insisting that Constand acted as she did because she was “tr[ying] to maintain some sense of normalcy.”

The prosecution will be calling a forensic toxicologist, Feden said, who can speak to the effects of sedative drugs, including Benadryl and Quaaludes. (Constandt says Cosby told her only that the pills were “herbal”; Cosby maintains that he gave Constandt Benadryl.)

Feden also mentioned that the jury would hear from Kelly Johnson, previously known by the alias “Kacey,” who also says she was drugged and sexually assaulted by Cosby. Johnson, who has never met Constandt, came forward in 2015 with an experience that, as Feden put it, is “strikingly similar” to Constand’s. Her testimony, the prosecution hopes, will support and corroborate Constandt’s story. Though the prosecution tried to have as many as 13 prior bad act witnesses testify at trial, Judge O’Neill accepted only one.

Defense attorney Brian McMonagle allowed that sexual assault is a terrible crime. But, he said, “The only thing that is worse than that is the false accusation of sexual assault.”

“The false accusation of sexual assault is an attack,” McMonagle said. “It can destroy his life. It can destroy his future.”

McMonagle zeroed in on what he described as Constand’s “repeatedly untruthful” statements to law enforcement. As point of contrast, he insisted to the jury, “You will never see Mr. Cosby under oath lying.” He referenced the now-infamous deposition from 2005 — which Cosby’s team fought, unsuccessfully, to have barred from this trial — in which Cosby admitted to acquiring drugs for women with whom he wanted to have sex.

McMonagle phrased that admission like so: “Under oath [Cosby] said, ‘I used Quaaludes three decades ago, when it was fashionable to do so, with consenting women.’”

CREDIT: Associated Press

The investigation prompted by Constand’s allegations in 2005 was “exhaustive,” McMonagle said, and it “put an end to this nonsense.” Constand and Cosby, in McMonagle’s description, were engaged in a romantic affair and all sexual contact between them was consensual.

McMonagle said that Johnson also had consensual sex with Cosby and, upon going public, relished the attention she received, pointing out that she told her story “at a press conference in L.A. with a lawyer who specializes in sexual assault lawsuits.” (That lawyer, Gloria Allred, was in attendance. She represents approximately 33 Cosby accusers, including Johnson.)

“Cameras! A press conference! L.A.!” McMonagle said. “What happens next? Media tour. Pay attention. Be vigilant. Dr. Phil!”

If opening statements are a harbinger of what both sides’ respective strategies will be, expect the prosecution’s to be measured and methodical while the defense takes a more passionate, even outraged approach. The tone of the prosecution is that of disappointment and pain; the defense’s posture, meanwhile, is a scandalized one.

McMonagle shouted the majority of his opening statement, pounding on the front of the jury booth for emphasis. Feden raised her voice only once: When describing how Constand’s mother feared for her daughter’s credibility and hope for justice. “Who is going to believe her? This is Bill Cosby! Who is going to go up against this powerful man?”

Monday afternoon, the prosecution called its first witness: Kelly Johnson. Under direct examination, she explained how she came to know Cosby: She was the personal assistant to Tom Illius, Cosby’s agent at William Morris. “It was immediately made clear that Mr. Cosby was of the utmost importance, not just to Tom but to the agency in its entirety,” Johnson said.

Over time, Cosby — who spoke with Johnson on the phone for work in a manner that was “cordial, professional, polite, courteous” — became “a little more familiar” in his conversations with her. She traveled with Illius and her family to see Cosby perform a few times. “My parents and my family were so much like The Cosby Show, so it was just a real thrill for them.”

As Cosby contacted her more frequently, Johnson said, he instructed her not to tell Illius about their conversations, and Johnson obliged. He sent her gifts, she said, including a bird of paradise plant for her birthday, and arranged for her grandmother to see an acupuncturist.

One night, she said, Cosby invited her to his home to talk about TV production. Though she wasn’t interested — it would require her to set up alternate pick-up and childcare arrangements for her young son that evening — she went. “It was Mr. Cosby calling and asking, but asking is really telling. It’s a directive.”

Johnson said Cosby had her act out a scene with him in which a man and a woman, who is “a little tipsy,” end up embracing and kissing. Cosby had her do the scene “again and again,” she said, but she would “turn [her] head” when it came time for the kiss.

“He dismissed me,” Johnson said. “He was kind of disappointed… I wasn’t cooperative with the kiss and the embrace.”

Still, they continued to speak by phone, Johnson said, and Cosby invited her to meet him for lunch “to discuss my life and my career, what I wanted to do.”

“Those are the kinds of conversations that we would have,” she said. “He would call and ask me about my life, in a fatherly, favorite uncle, Dr. Huxtable kind of way.”

The meeting, Johnson said, was supposed to take place at the Bel Air hotel. But Cosby called that morning with a change of plans: He told her to come to his bungalow. She says that when she did, Cosby answered the door in his bathrobe and slippers.

“At some point, he told me it looked as if I needed to relax.”

Throughout the rest of direct questioning, Johnson’s voice trembled and broke. She cried, briefly, while detailing the alleged assault.

Cosby, she said, held out a large white pill and refused to identify it. In her account, he said to her, “Would I give you anything to hurt you? Trust me, it’ll just help you relax.”

“I felt extremely intimidated by Mr. Cosby,” Johnson said. “His presence, everything, I was very nervous.” She considered running out the door. “But this is Mr. Cosby. Tom doesn’t know I’m there.”

She planned to “put the pill under my tongue, pretend to swallow it, then go to the restroom and spit it out.” But Cosby, she said, checked under her tongue. He gave her a glass of wine, she said, and she swallowed the pill.

After taking it, she said the ran to the bathroom where she saw a counter full of prescription pill bottles. “I looked at the pill bottles and I thought, maybe I can figure out what it is that I’ve taken.” She worried about how much noise she was making, that she was “crying a little bit” and losing track of time.

“I was getting really frustrated with myself because… for some reason I couldn’t read the prescription bottles,” she said.

When she returned to the couch, she said, she felt “like I was underwater.”

She came to in the bedroom, she said. Her dress was pulled down from the top and up from the bottom; Cosby was behind her, making “grunting sounds.”

“I felt like I wanted to say something, like I was trying to say something. I felt like I was crying. I thought I was saying something. I don’t know if I was actually speaking.” She said Cosby put lotion in her hand “and made me touch his penis.”

Johnson said she has no recollection of how she got home, but that the next time Cosby called William Morris, it was on Illius’ private line. Through the phone technology that allowed assistants to listen in on their boss’ calls, Johnson said she heard Cosby complaining about her, calling her a “problem” that needed to be handled.

Johnson went to HR but never returned to William Morris. She was terminated, she said, several months later. She struggled to tell her parents exactly what happened to her. “I felt like I was hurting my parents, to tell them that Mr. Cosby had done this to me.”

During cross-examination, McMonagle questioned Johnson aggressively. As he insinuated he would do in his opening statement, he led with questions about Gloria Allred’s influence on Johnson. (Discussing the press conference where Johnson came forward, McMonagle said, “I take it there were cameras there?”) Several times, his voice rose so high that his microphone screeched.

He also asked, more than once, if Johnson “did drugs in the 1990s.” After Johnson answered “I don’t remember” to a series of questions about a deposition she gave in 1996, McMonagle replied, “Did anyone tell you to get selective amnesia in this case?” (She answered him: “No.”)

Later, during re-direct examination, Johnson reminded the jury of the context of the time — partly to as a rebuttal to McMonagle’s insistence that the HR report about Johnson’s complaint did not mention allegations against Cosby.

The Cosby Show was at the pinnacle of its hype, its success,” she said. “He was revered, loved by the world.”

Asked by the prosecution what would have happened if HR had documented any allegations against Cosby, Johnson said, “It would have caused a complete uproar. It would have been a nightmare for the agency, to say the least.”

She didn’t come forward at the time, she said, “because I was humiliated and embarrassed. I was very afraid, because I had a secret about the biggest celebrity in the world at that time. And it was just me. It was just me. My word against his.”

Reprinted with permission from Think Progress, a branch of The Center for American Progress