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Prosecutors and the defense began picking a jury for Bill Cosby’s sexual assault retrial Monday in a #MeToo era that could make the task more difficult.
More than half of the 120 potential jurors who answered questions about their background and views told a judge they had already formed an opinion about the comedian’s guilt or innocence.
And all but one had heard or seen something about #MeToo, the powerful cultural movement that has been exposing sexual misconduct in the entertainment industry.
Cosby is charged with drugging and sexually molesting a woman at his suburban Philadelphia home in 2004. He says the sexual encounter was consensual. His first trial ended in a hung jury.
As jury selection for the retrial got underway Monday, all but 10 potential jurors indicated they had knowledge of the case.
While the jury in the first trial came from Allegheny County, on the other side of Pennsylvania, the jury for the retrial is from the Philadelphia suburbs in Montgomery County.
Experts say the campaign that has felled major figures in news and entertainment could cut both ways for the comedian, making some potential jurors more hostile and others more likely to think men are being unfairly accused.
“We really have had this explosion of awareness since that last trial and it has changed the entire environment,” said jury consultant Richard Gabriel. “It is a huge challenge for the defense, but it could also provide an avenue and open up the topic.”
A jury deadlocked at Cosby’s first trial last June, months before #MeToo started toppling famous men in rapid succession, among them Harvey Weinstein, Matt Lauer, Kevin Spacey and former Sen. Al Franken.
Veteran lawyers and jury consultants say #MeToo will make jury selection more complex and raise the stakes even higher.
The defense is likely to use attitudes toward the movement to weed out jurors.
“There may be a juror who says, ‘I don’t have an opinion about Cosby, but the #MeToo [movement] is very important to me,'” said Melissa M. Gomez, a jury expert and author of the book Jury Trials Outside In. ”That person is still very dangerous to the defense.”
Cosby, 80, is charged with drugging and molesting Andrea Constand, a former Temple University athletics administrator, at his suburban Philadelphia home in 2004.
Last year’s trial was mostly a case of he-said-she-said. For the retrial, a judge has ruled that jurors can hear from five additional accusers, giving prosecutors a chance to portray the man once known as “America’s Dad” as a serial predator.
“It’s going to be much more difficult for the defense to chip away at all six, especially if there is a common thread and story,” Gomez said. “That shows a pattern of behavior.”
Typically, prosecutors and defense attorneys can take what happened at the first trial, learn from it and improve on it in the retrial, but some experts say the climate surrounding sexual assault has changed so thoroughly that both sides should go back to the drawing board.
“There is no question that this is a very difficult time to try someone who has been accused of sexual assault,” said defense attorney and Harvard Law School professor Alan Dershowitz. “For some jurors, the whole movement will be on trial, because Cosby has been the poster person for this kind of accusation.”
At a hearing last month, Cosby lawyer Becky James argued it would be difficult to find an impartial jury in this climate: “There’s no way we will get a jury that hasn’t heard these allegations against not just Mr. Cosby but many other celebrities.”
Judge Steven O’Neill scoffed at the notion Cosby cannot get a fair trial.
Jury experts said the key is getting potential jurors to open up about their personal experiences surrounding sexual assault and misconduct, something that might be better done behind closed doors, in the judge’s chambers, where people might be more likely to speak candidly.
“Without getting it out in the open, it can be underneath the surface,” Gabriel said. “The hidden bias is always the most dangerous bias.”
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