Potential Cosby Jurors Are Asked About #MeToo Bias
NORRISTOWN, Pa. — Bill Cosby sat in a courtroom here Monday. So too, in a way, did hundreds of women who have accused other powerful men of sexual assault in recent months as the #MeToo movement swept across America.
As jury selection got underway in Mr. Cosby’s criminal trial, no one could ignore that the atmosphere surrounding the case was much different than it had been last summer, during Mr. Cosby’s first trial, before one famous figure after another fell in the face of accusations of sexual misconduct or harassment.
Judge Steven T. O’Neill made that clear as he questioned the 120 potential jurors gathered at the Montgomery County Courthouse on a variety of potential conflicts.
“Do you have knowledge, have you read or seen anything about the #MeToo movement or the allegations of sexual misconduct in the entertainment industry?” he asked.
All of the potential jurors but one — 119 people — raised the cards they use to answer questions. Yes, they had heard of the #MeToo movement.
“This is very important,” Judge O’Neill said. “This will help us.”
Mr. Cosby’s second trial, scheduled to start next week, will be the first high-profile sexual assault trial of the #MeToo era. Experts are intrigued by the question of what effect, if any, it will have on jurors’ attitudes toward sexual assault — whether, for example, jurors will be more willing to believe women who come forward to bring complaints than they were in the past.
“Since Cosby’s first go-round, all courtroom participants — jurors, attorneys, judge — have been immersed in an intensive course on sexual violation,” Deborah Tuerkheimer, a law professor at Northwestern University and a former prosecutor who specialized in domestic violence cases, “including the kind of sexual assault inflicted by mentors.”
“The ways in which we evaluate the credibility of survivors has also shifted in important ways,” she said, “from a default to doubt, to a greater willingness to believe. And we have been newly schooled in the importance of consent. It will be fascinating to see how this plays out in the courtroom.”
Mr. Cosby’s interest in the question is far from academic. His first trial on charges that he drugged and sexually assaulted Andrea Constand in 2004 at his home outside Philadelphia, ended with a hung jury. At least one juror reported some problems with Ms. Constand’s credibility and had a question about why the many women who accused him did not come forward sooner. Now the entertainer’s lawyers say they are worried that the barrage of publicity surrounding bad-behaving men will lead jurors to lump Mr. Cosby in with the others.
Prosecutors contend that Mr. Cosby, 80, is also a sexual predator, one who abused dozens of women, though Ms. Constand’s case is the only one to result in criminal charges. The prosecution will offer accounts from five other women during the trial who are expected to testify that Mr. Cosby tried to intoxicate them in some way before sexually abusing them.
The very fact that Judge O’Neill is allowing five additional accusers to testify — not one, as in the first trial — is evidence of how the #MeToo moment has influenced the case, said Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts. The judge has not explained his reasoning for allowing more accusers to testify this time.
“When I saw that, I said really, the ground has really shifted,” Ms. Hannaford-Agor said. “The judge has had to pay attention.”
The defense has been arguing, instead, that the prejudicial effect on the jury to have five additional women testify is too much for Mr. Cosby to receive a fair trial, that it will distract from a focus on the facts of the Constand case. He has said the sexual encounter was consensual.
In the morning session, Judge O’Neill did some broad surveying of the jury pool and found that more than half of the potential jurors — 68 — said they had already formed an opinion about the case. They were disqualified.
Reporters were barred from the room and relegated to another courtroom where they watched on closed-circuit television, unable to see the jurors or grasp how they were answering the judge’s questions. Judge O’Neil indicated that Mr. Cosby’s lawyers had objected to allowing the media a broader view of the jury pool.
“They would object to having every member of the media sitting in the courtroom,” he said. But he seemed to condone it because it would help keep the jurors’ identities anonymous, he said, as they were in the first trial. Several news organizations complained about the exclusion, but the judge never revealed his legal basis for the decision.
The questioning of individual jurors intensified in the afternoon, and three were asked again about whether they had heard about #MeToo incidents in the entertainment industry and whether they could remain impartial. All said they could. But the defense and the prosecution settled only on one juror Monday, a white man in his 20s wearing a navy T-shirt who said he had heard about #MeToo but that he would not be affected by it.
All of the 12 jurors and six alternates will remain anonymous throughout the trial. Judge O’Neill said that the trial was likely to last a month and that the jury would be sequestered during that period. The selection process will continue Tuesday.
Last time, the jury was drawn from Pittsburgh and bused here after Mr. Cosby said he was worried that potential jurors in Montgomery County had been affected by pretrial publicity This time, however, he has made no objections to jurors from the county, where Mr. Cosby, a Philadelphia native, has long owned a home and was among the best-known graduates of Temple University, where Ms. Constand worked as support staff for the women’s basketball team.
Jon Hurdle contributed reporting from Norristown.