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How Cosby verdict could signal #MeToo impact on criminal justice system

Bill Cosby is not only tied to the Me Too movement as the first high-profile defendant found guilty at trial since it began. But legal experts wonder if his case might actually push Me Too into a new frontier, reshaping how the criminal justice system handles future cases.

Comedian and actor Bill Cosby leaves Montgomery County Courthouse with guilty of three charges Thursday April 26, 2018.
Comedian and actor Bill Cosby leaves Montgomery County Courthouse with guilty of three charges Thursday April 26, 2018.Read moreDavid Swanson/ Staff Photographer

Months before his much-anticipated retrial on sexual-assault charges, Bill Cosby dined one night at an Old City restaurant and made an unprompted plea to one of the reporters tipped off about his public outing: "Please," he said, "don't put me on #MeToo."

The irony of that request has never been clearer than in the wake of Thursday's guilty verdict against Cosby for drugging and molesting former Temple University employee Andrea Constand 14 years ago.

Now the 80-year-old entertainer is not only tied to the national reckoning over sexual assault as its first high-profile conviction. Legal experts say his case might actually push #MeToo into a new frontier, impacting how the criminal justice system treats such cases.

In the broadest sense, they say, the validation of Constand's claims and repudiation of Cosby's defense could make accusers feel safer coming forward, prosecutors more inclined to take on difficult cases, and defense attorneys likely to rethink their courtroom strategies.

In other ways the trial is a clear outlier, and an unlikely template for other sex crime prosecutions, given the series of unusual events it took to land Cosby in a Norristown courtroom earlier this month, let alone convict him. And notably, other celebrities facing allegations of sexual misconduct have yet to face charges like Cosby, including film producer Harvey Weinstein.

"It's a really fascinating moment in this cultural conversation we're having," said Deborah Tuerkheimer, a professor of law at Northwestern University. "Now we're having it about criminal justice, too, which is a new direction for the #MeToo movement to be veering into."

Cosby remains free on bail, but confined under electronic monitoring to his Cheltenham Township home while his lawyers prepare an appeal.

The verdict against him, delivered after a 12-day trial and 14 hours of jury deliberations, was remarkable for many reasons — not the least being that the jurors finished a job their predecessors failed to: Cosby's first trial ended in a deadlock and mistrial in June.

By the time jury selection for the second trial began in early April, Cosby had a new team of defense lawyers, and the #MeToo movement was months old.

The national discourse had become so prevalent that the more than 230 Montgomery County residents questioned as potential jurors were asked if they were familiar with #MeToo — and most said they were. All of those chosen to serve assured the judge that they could set their knowledge of it aside. None has spoken publicly since the verdict, so its influence on them remains unclear.

But lawyers weren't precluded from seizing on it during the trial, and both sides often evoked the cultural shift taking place outside the courtroom.

As the first witness, Montgomery County District Attorney Kevin R. Steele called a forensic psychiatrist who dispelled common cultural misconceptions on how sexual-assault victims ought to react to their abuse, setting the stage for the jury to be more understanding of Cosby's accusers. In closing arguments, defense attorney Kathleen Bliss likened the trial and the #MeToo movement to a series of lynchings, witch hunts, and McCarthyism.

In many ways, Cosby's second trial was shaped by a wider cultural understanding of sex crimes, perpetrators, and victims that had slowly been permeating the court system.

Just six years ago, state prosecutors who tried Jerry Sandusky for sexually abusing 10 young boys were barred from calling an expert witness to explain why many of the former coach's victims waited years to come forward or slowly remembered the details of their abuse over time.

Pennsylvania courts had ruled that experts speaking in generalities about assault would improperly sway jurors toward convictions. But the Sandusky scandal persuaded lawmakers in Harrisburg to reverse those laws.

Steele credited such testimony from his first witness with helping to defuse the attacks Cosby's lawyers would later lob against his accusers.

"I can only hope that one day we won't need experts," the district attorney said.

Meanwhile, many of the dozens of women who came forward in recent years against Cosby have pushed within legal systems across the country for wider acknowledgment of the unique challenges of prosecuting sex crimes.

Accusers such as Janice Baker-Kinney, Heidi Thomas, and Lise-Lotte Lublin, all of whom testified this month about their alleged assaults, have been active in successful efforts to extend the civil and criminal statutes of limitations for sex crimes in states such as Nevada, Colorado, and California — moves that would enable accusers to seek justice for years-old claims.

Jurors in Cosby's second trial heard from Constand and five other women who testified that Cosby drugged and sexually assaulted them in the 1980s. Constand herself spent two days on the witness stand, describing how Cosby drugged and molested her at his home in Cheltenham in 2004, after meeting her through her position as director of operations for the Temple University women's basketball team.

The path that led to her testimony shows the rarity of the case. Cosby's attack on Constand was just barely within the state's 12-year statute of limitations when Cosby was charged in 2015 — after the case had previously been rejected a decade earlier — and Cosby had already given sworn testimony in a civil case confirming much of Constand's story, which prosecutors used to bolster her claims at trial.

"This was an unusual case," Constand's lawyer Dolores Troiani said in an interview Friday. "It's inexplicable to me how all of this happened, but it's very unusual that a case goes on for 14 years and you get a conviction 12 years later."

In their appeal, Cosby's attorneys are likely to take issue with Judge Steven T. O'Neill's decision to let jurors hear from the five other accusers. While the statute of limitations on their allegations had expired, the judge allowed their testimony as evidence of prior "bad acts" by Cosby — and to show his assault on Constand reflected a pattern of behavior. In the first trial, O'Neill let just one other accuser take the stand.

The women's voices were among the starkest difference between the two trials — and an element unlikely to be replicated elsewhere: The rules of evidence in many states are heavily slanted against allowing testimony about potentially damning conduct that hasn't been charged.

Some legal experts have suggested legislators could change such rules in light of the #MeToo movement. Others wonder if judges will become more lenient.

"It's going to be the little tweaks, like letting in more people with a history of bad acts," said Laura Beth Nielsen, a professor of sociology and the director of the Center for Legal Studies at Northwestern University. "It's going to be these little things judges are going to do, because social norms are a-changin.' "

Dennis McAndrews, a former prosecutor who attended both of Cosby's trials, said it's more likely Cosby's case will influence future prosecutions of alleged serial predators. He said O'Neill's decision to allow the additional accusers to testify was likely informed by knowledge that more than 60 women had publicly leveled assault claims against Cosby.

"The sheer quantity of other accusers put the judge's ruling to allow some of them [to testify] on much firmer ground than if there was only a handful of them," McAndrews said. He said that also probably reduces Cosby's chances of winning on appeal.

William J. Brennan, a longtime Philadelphia criminal defense attorney, said the notion that judges could be more likely to let in evidence of alleged prior bad acts by a defendant left him torn. Defending such cases, in particular when the allegations are years old, can be challenging, given that witnesses' memories can fade and evidence can be lost over time.

Brennan was a key player in just such a case, defending a Philadelphia archdiocesan priest accused in 2011 of attempting to rape a teen back in 1996.

"You're in the courtroom fighting shadows. As a lawyer, I find it problematic the commonwealth is able to do this," he said. "But as a citizen I'm happy that anyone who may be a victim will now have a chance to be heard."

Tuerkheimer said that simple fact — more women being heard — could be the clearest impact of Thursday's verdict.

"These kinds of successes have a circular effect in that they tend to then suggest that coming forward is not fruitless," she said.

Fatima Goss Graves, the president of the National Women's Law Center, said the verdict might also change defense strategies in such cases.

Cosby's attorneys tried to paint Constand as a con artist who had fabricated the allegations because she wanted Cosby's money. (She received nearly $3.4 million in a 2006 lawsuit settlement.) Of the other accusers, they said one "had slept with almost every single man on the planet" and questioned the morals of another for hanging out with Cosby, a married man, before her alleged assault.

Other defense lawyers might now pause before relying on "rape myths," Goss Gaves said.

"If that conduct had been rewarded [with an acquittal] I think you would see a lot more of it," she said. "And right now, in this cultural moment, what we have is a rejection of these myths, a rejection of these stereotypes."

She said the verdict may also cause prosecutors to rethink their approaches.

"It will help give the courage to prosecutors to bring other tough cases against other prominent people," she said. "It can be done."