As the prosecution winds down its case in the sexual assault retrial of Bill Cosby, the legendary comedian’s defense team faces an uphill battle if it hopes to win an acquittal.
It isn’t that the evidence has necessarily proven much — other than Cosby and accuser Andrea Constand enjoyed playing footsies with each other, sharing drinks and a hotel bed — but perception might be the tainted jury’s reality, Cosby’s team contends.
“This has been prosecution by distraction,” Cosby spokeswoman Ebonee Benson told reporters. “We have only asked for the jury to hear the truth and do what the evidence says and find Mr. Cosby not guilty.”
However, Cosby’s team said they’re also dealing with a judge who has repeatedly demonstrated his fondness for prosecutors and at least three jurors who have repeatedly violated their oath — two were observed by several in the courtroom smiling and saying hello to Constand while one was observed repeatedly winking and smiling at lawyers Gloria Allred and Lisa Bloom, who are both representing clients with civil cases pending against Cosby.
One defense source said lead attorney Tom Mesereau has given up pushing for a mistrial or even bringing these things to the judge’s attention because Montgomery County, Pa., Judge Steven T. O’Neill has repeatedly ignored or admonished him for advocating on behalf of Cosby.
Every key ruling has decidedly gone against the defense, most without explanation.
The judge has even helped prosecutors frame questions that the defense has objected to. When prosecutors have objected to defense questioning, O’Neill has loudly agreed and admonished them as “leading” or “outside the scope.”
He’s made it a habit to tell the jury that anything that lawyers say — particularly emphasizing defense attorneys — “is not evidence and should be ignored.”
“I have never seen a case like this where it’s been so overly prejudicial,” said criminal defense attorney and CNN legal analyst Joey Jackson. “This should have already been thrown out.”
When Cosby’s lawyers asked for the removal of Juror No. 11 — who admitted that he couldn’t be impartial and allegedly proclaimed, “We can go home, he’s guilty” — O’Neill balked.
When Assistant District Attorney Stuart Ryan said he was “tired of this Black s—,” the judge chose to ignore the remark. Kristen Feden, another assistant district attorney, offered that Cosby’s team had its fair amount of two token Black jurors and should be satisfied, but again O’Neill didn’t take action.
It’s also been a practice of O’Neill to demonstrably disagree, chastise and roll his eyes at defense attorneys, particularly Kathleen Bliss — something jurors have appeared to take note of, which could signal them to render a guilty verdict.
“If the jury believes the judge has made up his mind as to guilt, they’re probably going to follow that,” said Laverne Dennis, a Philadelphia resident who has attended a handful of the proceedings.
Cosby, 80, is charged with drugging and sexually assaulting former Temple University employee Andrea Constand in 2004. His initial trial last year ended in a hung jury.
If convicted, he faces up to 30 years in prison.
Prosecutors were allowed to call five so-called “prior bad acts” witnesses — women who said they’ve been drugged and assaulted by Cosby, including former supermodel Janice Dickinson.
Like the accuser in the case, each of the women said they were “offered” a pill and “willfully accepted it.” There’s been no evidence that Cosby slipped anyone a so-called Mickey.
As Allred and Bloom held press conferences on the courthouse steps, Benson and chief spokesman Andrew Wyatt decided to host their own.
District attorney spokeswoman Kate Delano, who regularly schmoozes with reporters sympathetic to the prosecution and who’s followed Wyatt around the courthouse, complained about Wyatt and Benson.
“We only give press conferences if a dog or cat died,” Delano said to Wyatt.
The next day, the judge issued an amendment to the decorum order, prohibiting Wyatt and Benson from speaking on courthouse property.
“If Bill Cosby is guilty or if he’s innocent, this judge hasn’t allowed him to have a fair trial so there’s no way to tell from the evidence,” said Katrina Ford, an aspiring clothing designer who lives about 12 miles from Norristown and has followed closely the proceeding.
Ford said she believes the justice system, in its want to convict African-American males, often gets in its own way.
“Why don’t they just let the evidence speak? I think if in this case they’re afraid to do that,” Ford said. “Maybe it’s because of a vendetta. Maybe it’s because of the obvious — Bill Cosby is rich, famous and Black.”