As jury selection picked up speed, the judge in Bill Cosby’s sexual assault retrial gave his legal defense a huge lift Tuesday with two rulings that could bolster the 80-year-old comedian’s efforts to show his accuser made up the allegations against him in hopes of a big payday.
Judge Steven O’Neill said the defense can call a witness who says Cosby’s accuser talked about framing a celebrity before she lodged sexual abuse allegations against Cosby in 2005. The judge also helped the defense case by ruling that jurors can hear how much Cosby ultimately paid the accuser, Andrea Constand, in a 2006 civil settlement.
The rulings came ahead of a productive second day of jury selection in suburban Philadelphia, with a half-dozen jurors picked by midday to bring the total number to seven. Five of the jurors picked so far are white and two are black, with four men and three women.
O’Neill’s ruling to allow Marguerite Jackson to take the witness stand was at odds with his decision to block her from testifying at the first trial, which ended in a hung jury.
At the time, the judge ruled Jackson’s testimony would be hearsay after Constand, a former Temple University women’s basketball administrator, testified she didn’t know the woman. Since then, prosecutors have told Cosby’s lawyers that Constand had modified her statement to acknowledge she “recalls a Margo.”
Jackson, a longtime Temple official, has said that she and Constand worked closely together, had been friends and had shared hotel rooms several times. She has said Constand once commented to her about setting up a “high-profile person” and filing suit. Constand’s lawyer has said Jackson isn’t telling the truth.
Jackson’s availability as a witness for Cosby could be crucial to a defense plan to attack Constand’s credibility.
O’Neill didn’t explain the reasoning behind his change of heart Tuesday but issued one caveat, saying he could revisit the issue of Jackson’s testimony after Constand takes the stand at the retrial.
Cosby is charged with drugging and sexually molesting Constand at his suburban Philadelphia home in 2004. He says the encounter was consensual.
All of the jurors seated Tuesday said they had read media reports about Cosby’s case but hadn’t formed an opinion about his guilt or innocence and could serve as fair and impartial jurors.
Cosby’s lawyers complained that prosecutors had improperly excluded two white men from serving on the jury on the basis of race and age, including one who said he thought many of the women coming forward in the #MeToo movement are “jumping on the bandwagon.” But Cosby’s lawyers themselves blocked several white women from serving, and the judge rejected their argument about the prosecution.
A second group of potential jurors underwent questioning Tuesday afternoon and proved more opinionated and less willing to serve than the panel that produced the first seven. Two-thirds said they already had formed an opinion about Cosby’s guilt or innocence, and all but about 20 people begged off the case, saying it would be a hardship to serve. With only a dozen people from that group still in play as potential jurors as court adjourned Tuesday, officials were forced to summon a third batch of 120 potential jurors to the courthouse for Wednesday’s session.
As jury selection proceeded, The Associated Press and other news organizations challenged an arrangement that forces reporters to watch the proceedings on a closed-circuit feed from another courtroom. The camera shows the judge, prosecutors and defense lawyers, but not potential jurors who are being questioned as a group.
Cosby’s lawyers objected to having reporters in the courtroom because they feared it could hurt their ability to find a fair and impartial jury.
Montgomery County President Judge Thomas DelRicci scheduled a Wednesday morning hearing on the news media’s legal challenge.
Last year’s trial was mostly a he-said-she-said. For the retrial, O’Neill has ruled jurors can hear from five additional accusers, giving prosecutors a chance to portray Cosby — the former TV star once revered as “America’s Dad” for his family sitcom “The Cosby Show” — as a serial predator.
O’Neill also hinted during a pretrial hearing last week that he might keep jurors from hearing Cosby’s prior testimony in a deposition about giving quaaludes to women before sex. He said he won’t rule on that until it’s brought up at the retrial.
The AP does not typically identify people who say they are victims of sexual assault unless they grant permission, which Constand has done.
