Cosby’s lawyer in final, chair-pounding plea to jury: ’Can’t we stop this?’

It’s the prosecutor’s methodical connection of dots against the defence’s incredulity, as the jury takes Cosby’s fate into its hands
Bill Cosby arrives for his sexual assault trial with his wife Camille Cosby, right, at the Montgomery County Courthouse in Norristown, Pa., Monday, June 12, 2017. (AP Photo/Matt Rourke)
Bill Cosby arrives for his sexual assault trial with his wife Camille Cosby, right, at the Montgomery County Courthouse in Norristown, Pa., Monday, June 12, 2017. (Matt Rourke/AP/CP)
Bill Cosby arrives with his wife Camille for the last day of his sexual assault trial. It was Camille Cosby’s first appearance at the proceedings (Matt Rourke/AP/CP)

Brian McMonagle, Bill Cosby’s lead defence lawyer, drew a gasp from the gallery Monday during histrionic, high-decibel closing arguments that occasionally veered into melodrama. His client did have extramarital affairs, the lawyer acknowledged, referring to Cosby’s testimony that he offered to set an education fund for complainant Andrea Constand. “When you dance outside your marriage, you have to pay the band,” McMonagle said, using the sort of folksy aphorism that peppered his address. He then walked in the direction of Cosby’s wife, Camille, who was sitting in the second row, her first courtroom appearance. “And she deserved better!” he yelled at top volume. Camille Cosby, a composed woman with closely cropped hair, didn’t move a muscle (Mrs. Cosby, who arrived at court with her husband, was accorded special consideration in entering the courtroom; she came in shortly after the trial was in session—contrary to the court’s strictly enforced orders on decorum—and left after the defence made its closing arguments).

Camille Cosby’s surprise appearance prefaced the trial’s surprise last day. Before the jury was brought in, Bill Cosby spoke aloud for the first time in court; Judge Steven O’Neill asked the performer, sitting at the defence bench and sworn under oath, a series of questions: Did he understand he didn’t have to present a defence? Did he choose not to have any character witnesses testify on his behalf? Did he agree not to testify? Cosby variously answered, “yes,” “no,” and “correct,” with an assertive exaggeration that drew light laughter from the gallery.

The day moved quickly toward jury deliberations, which began at 5:30 p.m. The prosecution officially rested after submitting a toxicology report. The defence’s case lasted all of six minutes with one witness called: Detective Richard Schaffer of Cheltenham Township police. The detective, who conducted the 2005 investigation into Constand’s allegations (the case was closed by the Montgomery County district attorney’s office the next month), was a strong witness for the prosecution in week one; he proved hostile to defence under cross-examination. Schaffer was asked by McMonagle to verify the accuracy of police statements and confirm the accuracy of follow-up questions for Constand—one involving Constand travelling to Foxwoods Resort Casino in Connecticut, the scene of the duelling versions of sitting on a bed; another about whether she knew Cosby had trouble with his eyesight.

READ MORE: Bill Cosby’s own words: how he viewed his alleged sex assaults

Andrea Constand and her mother, Gianna, arrived in court after the defence rested, just in time for closing arguments; they sat next to Schaffer in the front row. Both appeared relaxed, wearing dark blue blazers. Before McMonagle began his address, O’Neill instructed the jury: “Closing arguments do not constitute evidence, but you should consider them very carefully.”

McMonagle, a high-profile Philadelphia criminal lawyer who has defended mobsters and the Roman Catholic Church, put on an explosive 1.5-hour performance, complete with chair-banging. A compact man with a street-smart, scrappy manner and a powerful pair of lungs, McMonagle expressed indignation that the charges even made it to trial; his voice could reach the pitch of a high squeak. “Can’t we stop this … it’s nonsense!” he shouted at one point. More than once, he spoke of the need for a fair judgment: “A man’s life depends on it.”

McMonagle began his arguments by sharing the story of recently watching a father share ice cream with his young daughter—how she “looked at him like looking at god, with the adoring eyes of a daughter.” He waxed poetic about how he, the father of four, missed those days, before talking about how children’s illusions about parents eventually crumble. “I think in a minute how that changes.” Whether this was some sort of veiled reference to Constand’s mentor relationship with Cosby wasn’t clear. He then made a strange segue, walking toward Cosby: “Yours are not the adoring eyes of children,” he told the jury, who appeared to range in age from 20s to 70s. He went on to talk about the famous defendant: “I told you you would see different things—you would see a brilliant comedian who not only told us how to smile but how to love each other, no matter who you are.” And, he noted, they would see an imperfect man who did not keep his marital vows of fidelity.

He thanked the jury for coming 300 miles, leaving their children, families, and jobs behind. “You are the most important people in this room,” he said, adding: “If you have any hesitation that you have reasonable doubt whether a crime occurred, you must acquit.”

He hammered away at inconsistencies in Constand’s various police reports: that she altered the date of the alleged attack from January 2004 to March 16, 2004, then back to January; that she had contact with Cosby after the alleged assault when she said she hadn’t; that she had in one report said she’d never been alone with him. He focused on the fact Constand taped a telephone conversation with a woman, a high school guidance counsellor, who’d been at the March 16 dinner Cosby hosted to ascertain the exact date so she could give it to police. “What’s going on here?” McMonagle shouted. “How would you like to be that guidance counsellor? If that doesn’t make you hesitate I don’t know what will!”

READ MORE: Bill Cosby’s trial calls experts on pink and blue pills

McMonagle reinforced Cosby’s assertion that Constand and Cosby had a “romantic” relationship, referring to the first night she went to his house and they sat in front of a fire and burned incense. His own wife would certainly see such a setting as romantic, McMonagle noted—though, if incense was burned, she would say, “Are you really Brian?” The quip won laughter from the gallery; the jury seemed less amused. The fact Constand asked to revise a reference to drinking cognac in a police report was also emphasized by the lawyer. “She doesn’t want detectives to know there was a relationship,” McMonagle said, beginning to yell. “She’s going to cross it out too late. Somebody’s life is on the line. It’s too late.”

Cosby was open and transparent with police, he said: “You should know what I know. ‘He never shuts up,’ ”  he said, to laughter in the gallery.

Fifteen minutes into McMonagle’s closing argument, amid the deluge of assaults on her daughter’s credibility and honesty, Gianna Constand left the court. That would be a half hour or so before McMonagle referred to Gianna Constand getting a “half loaf” of information from her daughter about the alleged assault. McMonagle was indignant that Constand said she hadn’t contacted Cosby: “That’s a lie, not a fib, not a mistake, it’s a stone cold lie,” he said; they’d spoken 72 times, he said, with 53 of those calls initiated by Constand.

 (Matt Rourke/Reuters)
Constand at the courthouse in Norristown, Pa. (Matt Rourke/Reuters)

McMonagle’s outrage that Constand had phoned and then hired lawyers as she prepared to take on one of the world’s biggest celebrities was a rich irony, given that McMonagle is a lawyer’s lawyer. “It’s time to call it what it is,” McMonagle said. Exactly what that was he didn’t say. The reopening of the case due to the unsealing of Cosby’s testimony in the 2005 civil case, a 1,000-page document that revealed the celebrity gave Quaaludes to women he wanted to have sex with in the ’70s, provided McMonagle with an other source of outrage. “Did he say one thing in that sworn testimony that in any way changed what he said about Constand?” the lawyer asked, ignoring the fact the new information suggested a prior pattern of behaviour.

A detail recounted by Constand—she said she asked Cosby whether she should put the three blue pills under her tongue the night of the assault—was recycled to suggest that there had been some complicity with Kelly Johnson, the first witness who testified Cosby assaulted her in 1996. In her testimony, Johnson mentioned putting a pill Cosby had given her under her tongue so she didn’t have to swallow it; Johnson testified Cosby made her lift her tongue and swallow the pill. McMonagle imitated Constand, screaming. “Should I put it under my tongue? I knew she had never said that to anybody once ever before.” This is wrong, McMonagle told the court. “What is happening here is wrong and the only people who can stop it is you. I’m done.”

But he wasn’t done. He jumped up again to project a slide: “A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting on a matter of importance in his or her own affairs.” He brought up his wife again, telling the jury he’d go home that night and tell her he’d spent the day trying to right a terrible wrong. What are you going to say? he asked the jury.

READ MORE: At Bill Cosby’s trial, ‘Canada’s Mom’ slays ‘America’s Dad’

Montgomery County District Attorney Kevin Steele provided a decided foil to McMonagle. Tall, lean and grey-haired, Steele exuded a methodical, reasoned Jimmy Stewart-goes-to-court vibe, though he, too, occasionally raised his voice. He marshalled Cosby’s own words from his police report, sworn testimony and played his phone calls with Gianna Constand, who had returned to the courtroom. He began by quoting Constand regarding how Cosby referred to pills he gave her on the night of the alleged assault: “Your friends, I have three friends for you to make make you relax.” He noted Cosby referred to himself as “a sick man” to Constand’s mother, expressed guilty behaviour in the wake of their conversations and quoted Cosby answering “No” to the question: “Have you ever known Andrea Constand at any time to be untruthful?”—even after she accused him of sexual assault.

Steele also drew attention to a red-flag detail in Cosby’s police statement. The celebrity had been asked if he had sexual intercourse with Constand: “Never asleep or awake,” Cosby answered. “This should strike you,” Steele told the jury. “Never asleep,” he shouted. “Or awake.” He explained consent to the jury. Of course it’s the central issue in this trial, yet the subject has seen far less under examination than Constand’s phone records. “If you have sexual relations when they’re out and when they’re unconscious, that’s a crime; that person is not consenting … they’re not capable of it.” Cosby took away Constand’s ability to consent, Steele said: “He gave her no choice. Why? Because of what he wanted.”

Steele carefully walked the jury through the facts of the case. Constand was an athlete who had said “No” to Cosby before. Cosby gave Constand drugs; he digitally penetrated her. Steele assured the jury Constand’s testimony was enough to convict: “The testimony of Andrea Constand, standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in this case.”

The district attorney also reviewed conditions attached to the three counts of aggravated indecent assault Cosby faces, and how the burden of proof had been met in all three: one, lack of consent (from her own mouth, she never said ‘Yes’,” Steele said); two, unconsciousness; and three, administration of an intoxicant. Steele connected the dots, calling for the need for common sense and big-picture thinking. He pointed to confusion around the drugs; Cosby withheld the fact they were Benadryl. He had a history of giving sedating drugs for sex. He also outlined the similarities between Constand’s and Johnson’s experiences: they’d both met Cosby through work; they were both isolated and alone with him; they both took a drug administered by Cosby; they both remember some details of a sexual assault; they both woke to find their clothes disheveled.

Steele denounced the notion that Cosby’s relationship with Constand was anything near the “romance” the defence presented. Cosby, who claimed to be concerned about Constand getting some sleep, didn’t offer her a bed to sleep in in his five-bedroom house, he said. “Suggesting that this is a relationship going to another level doesn’t make sense,” he told the jury. “That’s not what you do.”

Steele tied up some some loose ends remaining from McMonagle’s close. Constand asking Cosby whether she should put the pill under her tongue made sense if you considered she thought she was taking an herbal medication, which she says Cosby said it was. Cosby’s testimony about Quaaludes was also relevant, Steele said: like Benadryl, it depresses the central nervous system and is used in drug-facilitated sexual assault.

Steele attempted to knee-cap the defence, pointing to McMonagle’s opening arguments: “For someone to get up in front of you and ask to ‘Give somebody their life to save his tomorrows,’ would be violative of your oath,” Steele told the jury. “That’s not your role. Any punishment that would come after you return a verdict of guilty has nothing to do with that. That is for the judge.” He asked them to remove attempts to engender sympathy out of their minds. It was equally pertinent not to feel bias for the victim, he said. Still, Steele pointed to Constand’s “courage” in coming forward and withstanding the rigours of a sexual assault investigation and trial: “Ladies and gentlemen, when you evaluate all the evidence in this case, if you do convict, you’ll be doing justice.”

From three rows back, it appeared the jurors were more engaged with Steele’s close. As it came to an end, Cosby appeared slumped in his chair. Gianna Constand reached over and touched her daughter’s shoulder. She nodded her head in the affirmative. What the jury, a decidedly mixed crew, made of it all remains to be seen.