In her first extensive interview ahead of the June 5 court showdown, the comic's lead attorney Angela Agrusa opens up about how she can counter public perception of a serial rapist (it involves a theory of "false memory creation") and win acquittal for the most toxic figure in Hollywood: "The challenge is to change the optics."
For most people, Bill Cosby lost his presumption of innocence dozens of accusers ago. In the 13 years since he invited Andrea Constand, then a 31-year-old employee of the Temple University athletic department, to his sprawling home in Elkins, Pennsylvania, and offered her a glass of wine and pills, his reputation as an everyman comedian, a national father figure who repeatedly broke ground as an African-American and the highest-paid person in show business has been thoroughly shattered. Everything that followed from that night — the subsequent police investigation, a lawsuit, a settlement, a leaked deposition, viral social media memes and scores of women emboldened to come forward (57 in all) with similar stories of Cosby first approaching them as a mentor, then offering them a drink that left them unconscious, naked and bruised — cemented perceptions of the entertainer as a serial rapist.
"I can't identify one other case in which the public has so conclusively come to the verdict of guilty," says Angela Agrusa, who along with Brian McMonagle is defending Cosby against criminal charges of sexually assaulting Constand in the first and so far only prosecution to emerge from the dozens of public accusations against the comedian. Set to begin June 5 and expected to run for two weeks, the trial in Norristown, Pennsylvania, a leafy Montgomery County suburb outside of Philadelphia, is certain to become the type of media circus unseen since O.J. Simpson's murder trial. If convicted, Cosby could be sentenced to 30 years in prison. "This case is so difficult — it reminds me of an appeal," says Agrusa in her first extensive interview about the defense that she plans to mount for Cosby. (THR asked prosecutors to outline their case against Cosby, too, but the Montgomery County District Attorney's Office declined to speak ahead of the trial.) "It's like the court of public opinion has found him guilty, and our job as lawyers is we now have to convince not just the judge but also the public why the initial verdict is wrong. The burden of proof for this one human being has shifted."
Cosby, 79, has said little publicly since October 2014, when a stand-up routine by comedian Hannibal Buress encouraging people to "Google 'Bill Cosby rape'" brought wide attention to the accusations made by Constand and others. Soon after, Netflix shelved a stand-up special it already had taped, NBC killed a sitcom it was developing for Cosby, and one concert booker after another canceled his appearances. So pervasive is the presumption of guilt surrounding Cosby that the normal rules of a criminal defense — go for an acquittal at all costs, including the client's loss of public standing — do not apply. Instead, his legal team plans to aim squarely at what's now a near-universal distrust of the entertainer. "The challenge for us is to change the optics," says Agrusa, a partner at Liner in Los Angeles.
The daughter of a police officer, Agrusa, 54, developed an Atticus Finch-style idealistic interest in the legal system while growing up in Orange County, California. After graduating from Loyola Law School in Los Angeles, she interned for the ACLU, but the realities of student debt — and later providing for two sons, now teenagers — pushed her toward corporate law. She has represented such unpopular clients as Dow Corning in cases regarding silicone breast implants, but Cosby by far is the most toxic.
When Cosby faced an onslaught of allegations of assaulting women, he first turned to Marty Singer, who protected Cosby's reputation for years and has made a practice out of representing stars like Charlie Sheen facing scandals. But after a Singer statement to the media led to the attorney being named in defamation suits filed by Cosby's accusers, Cosby turned to L.A.'s hardball litigation firm, Quinn Emanuel. His legal bills were rumored to be running several hundred thousand dollars a month, and a year later, Cosby switched to Agrusa on the recommendation of fellow Liner partner Kirk Pasich, who represents Cosby in insurance matters.
In a survey of 65 top entertainment attorneys by THR, 83 percent said they wouldn't take Cosby as a client, but Agrusa isn't bothered by her peers. "If me, Marty Singer and Quinn Emanuel are in the minority of lawyers in Hollywood who would take on Mr. Cosby's representation, I like the company," she says. (It's worth noting, too, that among those who said they would be willing to defend Cosby, two-thirds said they expect him to be found guilty.)
It is fitting that Constand's case against Cosby is the one on which his freedom is staked since it was her complaint that kicked off the sequence of events that made the comedian, once one of the Gallup Poll's Most Admired Men, a persona non grata. Some of the accusations against Cosby date back decades, and many of the alleged victims said they were too fearful of Cosby's influence in the entertainment industry to go to the police or to the public. "For 40 years, I didn't say anything because I thought it was just me," says Kathy McKee, a former L.A. morning talk show host who has accused Cosby of raping her in 1974 in a Detroit hotel room while she was on tour with Sammy Davis Jr. "Imagine a girl in the early 1970s trying to make it in Hollywood and have a career. He was in his heyday when it happened. My common sense told me nobody would believe me."
Constand, however, did file a complaint with law enforcement in 2005, and when the district attorney declined to prosecute, she filed a civil lawsuit that year that had two remarkable features. One was the appearance of 13 "Jane Does" — women with their own assault stories about Cosby who said they were prepared to testify at trial. The other was Cosby's deposition, in which the entertainer admitted to much of the alleged behavior but insisted it was entirely consensual.
The civil suit would settle for millions and might have become a footnote in Cosby's biography. (Of the many accusers, all predate Constand.) But when people followed the imploration to Google "Bill Cosby rape," one of the results was a largely forgotten Philadelphia magazine feature from 2006 that included allegations of assault by Constand and three other women. While Cosby's deposition in that suit once was sealed, excerpts published in 2015 by THR, followed by other news outlets, cemented the perception of Cosby as a monster. In it, Constand's attorney asked: "When you got the quaaludes, was it in your mind that you were going to use these quaaludes for young women that you wanted to have sex with?"
Cosby replied, "Yes."
In the months leading to the criminal trial, Cosby's defense team has been seeking to attenuate the damage from the past two and a half years. After their first gambit was rejected by Montgomery County judge Steven O'Neill — who ruled that there was no binding nonprosecution agreement and that the lengthy delay in trying Cosby didn't unfairly prejudice him — they have sought to narrow the focus of the trial to what happened in 2004. In fact, the defense recently celebrated a fairly enormous victory when the judge largely denied a bid by the prosecution to have testimony from 13 "prior bad act" witnesses (i.e. other Cosby accusers). Instead, only one — a woman named Kacey, who in the 1990s was an assistant to Cosby's former William Morris agent Tom Illius — will get to present her own alleged Cosby victimization to jurors. Although O'Neill hasn't yet explained his reasoning, it's likely the judge allowed testimony from Kacey because her alleged assault was relatively recent compared with the incidents alleged by the other accusers.
On the basis of O'Neill's "prior bad acts" decision, Cosby's lawyers now are seeking to exclude the most damning portion of his deposition in the civil case — arguing that Cosby's now-infamous comment about employing drugs to have sex with women (which they say has been misconstrued and does not refer to Constand) is outside the scope of the case and will be unfairly prejudicial.
In 2014, Marty Singer sought to fight the bias against Cosby by attempting to discredit the claims from the numerous alleged victims as "fabricated," "ridiculous" and "absurd." Agrusa has taken a different approach to pushing back against Cosby's accusers. Mindful of the public's belief that the high number of women is the most damning evidence against her client, she points to "lots of literature out there" about "how memories can be distorted" by news events, meaning the women may have been influenced by the headlines they saw about Cosby. At trial, Cosby's team may present some discussion about what psychologists call "false memory creation" when they respond to Kacey's testimony. It not only would be a way to subvert allegations stemming from provable interactions between Cosby and many of his female accusers but also a gentler response than directly calling all 57 women liars.
Cosby's team also is looking to promote sympathetic voices. In a letter provided to THR, Cosby's youngest daughter, Evin Cosby, 40, argues her father has been the victim of a media witch hunt. "My dad tried to defend himself," writes Evin. "His lawyers tried to defend him, but they all got sued. People were constantly reaching out to me about why doesn't your dad say something. I kept saying he's trying, but the media is only interested in the stories of the women." She adds, "I know that my father loves me, loves my sisters and my mother. He loves and respects women. He is not abusive, violent or a rapist. Sure, like many celebrities tempted by opportunity, he had his affairs, but that was between him and my mother. They have worked through it and moved on, and I am glad they did for them and for our family."
In addition, the defense team is being extra sensitive to media coverage that potential jurors might see. For example, right before Cosby victims were featured on the Reelz documentary series Exposed With Deborah Norville on April 14, Agrusa sent a stern letter hinting that Cosby could bring a defamation action. Agrusa says she also is keeping a close eye on coming documentaries from CNN and BBC. Legal threats to those networks may be forthcoming.
No one in America can claim more responsibility for promoting the stories from Cosby's alleged victims than Gloria Allred, the aggressive 75-year-old attorney who grew up in the Philadelphia area. Allred has become a specialist at a brand of justice one might classify as litigating in the press.
"When I began to be contacted by women who made accusations against Mr. Cosby in 2014, not long after the Hannibal Buress video became viral, I said to myself, 'What can I do? Because statute of limitations had expired for these women,'" she tells THR. "Of course, there's no statute of limitations to speaking out." She's now representing about 30 accusers, including Kacey. Allred not only put on news conferences but also began pushing state legislatures to extend statutory deadlines for sexual assault prosecutions. She also publicly called on Cosby to waive a statute of limitations defense, arbitrate claims or establish a $100 million fund for victims and let a panel of judges decide the truth.
Her actions haven't gone unnoticed by Cosby's attorneys. In fact, when asked to explain how Cosby could possibly be innocent given the number of women accusing him, Agrusa nods to Allred's role. "It wasn't until 2014 that we saw more accusations being made in the press," notes Agrusa. "It was a very orchestrated series of events." She adds that Allred is an "amazing marketer," that the attorney has "contributed to a misperception that exists today" and that the $100 million stunt "led to more and more claims being put forward." In response to the notion that she, in effect, created the Cosby scandal, Allred says: "It's a common tactic by the defense to put on trial anyone but their client. It's a diversionary tactic: 'Let's attack the victim, the people supporting the victim; let's put anyone else on trial but Mr. Cosby.'"
Allred is likely correct: The defense will put Constand under extreme scrutiny during the trial, focusing on the nature of Cosby and Constand's relationship and what happened after the night of the alleged assault. "The prosecutor is going to focus on the clarity of [Constand's] description of events and her credible explanations why she did certain things later," says Dennis McAndrews, who once served as a prosecutor in the Philadelphia area and tried such notables as Jerry Sandusky and John du Pont. Stuart Slotnick, a defense attorney who has represented billionaires including casino magnate Steve Wynn, largely agrees that the focus will be as much on Constand as on Cosby. "Her credibility is 100 percent at issue," he says, "and she's going to be vigorously cross-examined and will need to establish that everything she did was reasonable."
The facts of what happened on that January night in 2004 are largely undisputed. Police investigators later would write in an affidavit that Cosby, then 66, had "developed a romantic interest in Constand the very first time he saw her at the Temple basketball game and that he found her good-looking." Over the next two years, "before he acted upon that interest," he decided "he needed to develop a friendship with her." Constand told police she believed Cosby's social and professional overtures were sincere despite two previous times she had rebuffed his sexual advances. Constand said she visited his home seeking advice about whether to quit her job in Temple's athletic department. Cosby handed her a glass of wine, according to court papers, and then he went upstairs and returned with three blue pills. Constand asked Cosby whether the pills were herbal.
"Yes. Down them. Put 'em down," he allegedly replied. "Put them in your mouth. … Taste the wine."
Constand recalled she did so, then her vision blurred, she had difficulty speaking and her legs were "rubbery and like jelly." (Cosby later told police the pills were Benadryl that he used to sleep.) She was led to lie down on a couch. "I was aware that his hands were on my breasts," she said. "His hands were in my pants and his fingers in my vagina. … I was unable to move my body. I was pretty much frozen." After she woke up at 4 a.m., Cosby offered her a muffin.
About a year after the event, after moving back home with her mother in Canada, Constand said depression and flashbacks led her to report what happened to law enforcement. When Cosby spoke to the police, he never asserted his Fifth Amendment rights. His recollection wasn't particularly different from Constand's, with the important distinction that he insisted what happened that night was consensual. When asked by a detective whether he had sex with Constand, Cosby strangely answered, "Never asleep or awake." What Cosby apparently didn't know until police told him was that Constand is gay.
Constand later returned to Cosby's house — she told a detective she wanted to confront him about what happened that night — and she also admitted to later requesting tickets to his comedy shows. Expect Cosby's team to make much of this during their cross-examination of Constand. As Slotnick wonders, "Why would you go back to the perpetrator's house?"
The other person likely to be scrutinized at trial by Cosby's defense is the prosecutor leading the case, Montgomery County District Attorney Kevin Steele. A longtime assistant in the DA's office, Steele was elected in November, defeating Bruce Castor, the previous district attorney who in 2005 declined to prosecute Cosby. Steele's campaign aired an ad blasting Castor for "not looking out for the victims," which some credit for deciding the election. Pointing to how Steele already has used the Cosby prosecution for political gain, Cosby's lawyers were successful in convincing the judge in the case to bus in jurors from Philadelphia and Pittsburgh. That should provide a juror pool that is much more racially diverse than one from the wealthy suburb. Agrusa wouldn't say whether she would play the race card at trial, but, "I do think that race has played a big part in where we are today," she says. Pressed to elaborate, Agrusa wouldn't discuss the issue further.
In addition to portraying the prosecution as politically motivated, Cosby's lawyers also have been seeking to highlight Castor's original doubts about Constand's story, which led him to decline to bring charges. Castor testified at a pretrial hearing that one consideration was how the year between the alleged assault and Constand's complaint made it impossible to collect forensic evidence. Another was Castor's view that Constand was inconsistent on certain facts and didn't know the exact date of the assault during multiple interviews with police. Although several other women came forward during the investigation with their own stories about Cosby (the matter had been attracting publicity), police couldn't find an instance where allegations were lodged officially.
What played a much bigger role in Castor's decision was a key meeting with Walter Phillips Jr., Cosby's attorney at the time (now deceased). Phillips told Castor that Cosby had been secretly recorded by others. Phillips asserted this was part of an effort to incriminate Cosby and that if the DA obtained phone records, the conclusion would be that Constand and her mother were involved in an effort to extort Cosby. Other records would show, he added, that Cosby and Constand had remained friends. Though Castor hasn't revealed the details of what he looked into, he's said that he didn't like what he found. "I remember thinking it was an inordinate number of [phone] contacts," Castor would testify at a 2016 hearing. "I also believe we were able to confirm face-to-face meetings between the two after the alleged incident."
Still, the former DA testified in 2016 that he thought Constand was credible and wanted to give her a better chance of justice in a civil lawsuit — where the burden of proof is lower and Cosby would have to testify — but a decade earlier, after putting out a press release announcing the decision not to prosecute, Castor also held a news conference where, it was reported at the time, he characterized the potential case as "weak."
The overall effect the defense is trying to create — at least for the public — is permission to disregard everything they have heard about Cosby. While Cosby himself has been silent, his Twitter account these days is a steady stream of links to news reports about the (mostly minor) victories his legal team has scored in the thicket of litigation he is waging against his accusers, along with hashtags like #NotFakeNews, #JournalistGetsItRight and #MoreGreatNews. "There is this sort of perversion of taking down our icons. But everyone loves a comeback story," says Agrusa. "Mr. Cosby's social media referenced these recent and positive rulings as a way to help rehabilitate his reputation, shift the tide and regain the stature, to get people to think more critically about making a judgment."
There are key decisions about trial strategy still to be made. For instance, will Cosby's legal team show Steele's campaign ads to the jury to portray the prosecution as a politically influenced witch hunt? Or would that only remind the jury of other allegations circling even if the judge instructs the jurors to disregard all evidence not admitted? And will Cosby take the stand? Agrusa wouldn't say, but most defendants do not upon the advice of counsel. Other defendants aren't like Cosby: an entertainer so charming, he became the first African-American to be picked as a national pitchman for a major consumer product, Jello. Lately, though, Cosby has required assistance and a cane to walk into court, and his lawyers have said in motions that his eyesight has degenerated to the point where he is legally blind. When asked whether she thought Cosby would testify, Allred said it would amount to "legal malpractice" on the part of his lawyers if he did, before considering it a second and more carefully answering, "Maybe he should …"
Says McKee, one of the accusers, of the coming trial, which likely will dominate headlines into the summer: "I'm hoping and praying that everyone gets to see this. Just the fact that he's busted and faces criminal charges is a huge relief to all of the women. It won't matter if he's convicted because the bottom line is that people will know what's behind the mask. There will be a lot of people who still don't believe he did these things, and I understand that. They've been sucked into the show business portrayal." McKee adds she wouldn't be surprised by a not guilty verdict. "I remember O.J.," she says. "He had the best attorneys and got off. That's probably what is going to happen to Bill Cosby."
But Cosby's team isn't just seeking acquittal. They want total vindication, however improbable that seems. "Ultimately," says Agrusa, "we want to make it safe again to enjoy a great episode of The Cosby Show."
This story first appeared in the April 26 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.