At Cosby trial, focus shifts to the defense

So far, the defense of Bill Cosby has been a war waged on two fronts.

While his lawyers urged jurors last week to forget he is one of the world’s most recognizable celebrities and treat him as an ordinary citizen, outside the Montgomery County Courthouse the Cosby publicity machine has lost no opportunity to remind worldwide media audiences of his fame.

And as the focus of his sexual-assault trial shifts Monday to Cosby’s defense, his lawyers and his publicist plan to step up their efforts to acquit him both within the courtroom and the court of public opinion.

In some respects, the case being presented to the jury — seven men and five women picked from Allegheny County and sequestered near Norristown — has offered no real surprises or unorthodox trial tactics. But with more than 100 members of the media watching the proceedings — half in an overflow courtroom — and a gallery that includes other Cosby accusers and critics, the optics have added importance.

For much of the first week, Cosby showed few flashes of his old TV charm in court, his face set in an expressionless mask. As his accuser Andrea Constand testified over two days, he spent much of it avoiding eye contact and staring down at the defense table with a frown plastered across his visage.

Yet outside the courtroom, he appeared to draw energy from fans and celebrity well-wishers that have shown up to support him. Leaving court Tuesday, Cosby responded to one fan by offering up the famous “Hey, hey, hey” catchphrase from Fat Albert, the animated TV show he created in the ’70s based on his childhood in Philadelphia.

And each morning new luminaries have arrived to escort the legally blind entertainer into court, only to be positioned later by his spokesman, Andrew Wyatt, in prominent gallery seats, perfectly angled within the sight lines of the jury. That list has included his Cosby Show costar Keshia Knight Pulliam, actor-comedian Joe Torry, and actress Sheila Frazier, best known for her star turn in the 1970s movie Super Fly.

Wyatt, the nattily dressed man often seen  at the 79-year-old entertainer’s side, on Friday promised a new set of guest stars and supporters would attend the trial as it resumes Monday.  He hinted they might include Phylicia Rashad, who played Cosby’s TV wife Claire Huxtable on The Cosby Show, and the defendant’s real-life spouse, Camille Cosby, who has been conspicuously absent from the proceedings.

On the legal front, defense lawyers Brian J. McMonagle and Angela Agrusa have remained mum on whom – if anyone — they might call to testify.

Even after prosecutors concluded a week’s worth of testimony and evidence highlighted by the first public statements from Constand and Cosby’s own 2005 deposition testimony, legal experts see a path to acquittal.

“Both sides have plenty to work with here,” said L. George Parry, a Philadelphia defense attorney and former federal prosecutor. “If the jury liked Andrea, Cosby’s cooked. But I think her story has a lot of serious contradictions that the defense could argue to a jury as ample reason to find reasonable doubt.”

A list of potential witnesses, read aloud during jury selection last month, included Cosby’s longtime pilot and cook, an expert on false memory creation, and Bruce L. Castor Jr., the former Montgomery County district attorney who in 2005 opted not to prosecute Constand’s complaint that Cosby had drugged and molested her.

Perhaps the biggest question still lingering over the proceedings is whether the defendant – a celebrity once so beloved for roles like his Cosby Show surrogate Dr. Cliff Huxtable that the public embraced him as “America’s Dad” – will testify in his own defense.

Cosby had earlier ruled out such a move in light of the scandal that has shredded his reputation over the last two years, fueled by accusations from more than 60 other women of sexual misconduct dating back decades.

But Wyatt on Friday suggested his boss might be considering a change of course. “You have to look at all of your options,” he told a crowd of reporters. “Nothing is ever off the table in a trial of this magnitude.”

Seasoned defense lawyers say the question of whether to put a defendant on the witness stand is one of the most difficult decisions of any case.

“It is the question that keeps defense attorneys up at night,” said Jeff Lindy, who in 2012 defended Msgr. William J. Lynn, the Philadelphia archdiocese administrator who testified in his trial for allegedly covering up clergy sex abuse.  “If you lose the case and didn’t put your client on the stand, you think, ‘Damn it, I should have.’ If you lose the case and you did put your client up, you think, ‘Damn it, I shouldn’t have.’ ”

In Cosby’s case, the calculus could be particularly fraught.

On the one hand, he is a charismatic defendant who charmed audiences for decades with his family-friendly style of comedy. On the other, one misstatement could open the door for prosecutors to question him on dozens of other assault allegations lodged against him that have so far been kept out of the trial.

“If somehow Cliff Huxtable were to show up to testify, it would be a strong day for the defense,” said Philadelphia defense attorney William J. Brennan. “If he doesn’t and things don’t go well, that could sink him.”

Regardless of whether Cosby chooses to put his crowd-pleasing skills to the test in the witness chair this week, area defense lawyers see plenty of other material for attorneys McMonagle and Agrusa to work with.

At its core, the case against their client rests on the account of Constand, a 44-year-old Canadian massage therapist who was working for Temple University’s women’s basketball program in 2004 when she says Cosby sexually assaulted her.

She delivered an arresting performance on the witness stand over two days last week, walking jurors through the night she says Cosby offered her three blue pills that left her feeling paralyzed and powerless to resist his advances. She deflected Agrusa’s attacks on her credibility throughout more than five hours of cross-examination.

Yet key inconsistencies remain in Constand’s story, said Parry, including that she waited more than a year to come forward, kept in close contact with Cosby in the months after the alleged attack, and, in her statements to police, offered different dates and circumstances for her assault.

“According to complainant, this was a life-altering event,” he said. “I don’t see how you get the facts and circumstances around it so wrong.”

Dennis Cogan, who defended former State Sen. Vincent J. Fumo in his high-profile 2009 trial, said the most favorable evidence in Cosby’s favor may be the one piece that prosecutors have cited as a key in their efforts to convict him – the 2005 deposition he gave in Constand’s lawsuit.

Last week, jurors heard potentially damaging excerpts of that testimony, including Cosby’s admission that he had previously obtained Quaaludes, a powerful sedative, to give to women with whom he hoped to have sexual encounters.

“If he wasn’t telling the truth, if he wasn’t a credible person, he could have just lied,” Cogan said.

Of course, it is possible that the defense may opt Monday not to put on any case at all and simply argue in closing statements that prosecutors failed to prove their case beyond a reasonable doubt.

Brennan, for one, thinks Cosby’s defense team is up to the task.

“I’ve tried cases with Brian McMonagle, and I can tell you he’s the best closer I’ve ever seen,” he said. “If anyone can wrap it up and bring it home, it’s him. This is Sinatra at Madison Square Garden in ’74.”