Update: In a retrial, Bill Cosby was convicted on all three accounts of aggravated indecent assault on April 26, 2018
Everyone expected Andrea Constand to be the star witness Wednesday at Commonwealth v. William H. Cosby, Jr. And certainly Constand, who took the stand in a bright white jacket, the same hue associated with sexual assault awareness and activism, proved unflappable for a second day. Over a four-hour cross examination, defence lawyer Angela Agrusa veered from citing inconsistent police statements to combing through phone records to mentions of bath salts, brandy, incense and a $225 hair dryer.
What no one could have anticipated was the powerful late afternoon appearance of the witness to follow Constand: her mother, Gianna Constand. Over one and a half hours, “Canada’s Mom” slayed “America’s Dad,” unleashing unrelenting maternal fury on Bill Cosby. She also shut down the defence in its cross-examination, reprimanding it for focusing on the sort of extraneous, picayune details and inconsistencies that routinely take centre stage in sexual assault cases.
Gianna Constand, a former medical secretary, described receiving a call from her daughter while driving to work in early January 2005. Andrea was upset. “Mom, I have PTSD,” Gianna recalled her daughter saying, adding that Andrea called Cosby “a bad word.” Then, she said, her daughter told her: “Mom, he drugged me and he raped me.” Constand testified she’d seen changes in her daughter since she’d returned to the family home in Pickering, Ont. in 2004. She was having nightmares, waking up in a sweat, spacing out when the family was watching TV, her mother reported.
The news shocked her, Gianna Constand said. She believed Cosby and her daughter were friends. She’d met the entertainer briefly after he’d arranged tickets for her and her other daughter, Diana, to attend a March 2003 appearance at Toronto’s Roy Thomson Hall. The two had pictures taken with Cosby backstage. Cosby also arranged tickets for the family to attend his performance at Casino Rama Resort in Orillia, Ont., in August 2004, months after the alleged assault took place. Gianna Constand bought Cosby a Roots sweatshirt at the mall across the street to express the family’s appreciation. “Extra large. I put it in a gift bag,” she told the court, adding that they didn’t see the beloved celebrity in person: she gave it to a doorman at the show to pass on to him.
After her daughter’s revelation, Gianna wanted to call Cosby and insisted her daughter give her his number. Andrea refused, she testified: “She said, ‘Mom, it’s better that you don’t. I’m worried he might do something to our family.” Constand wasn’t having it. “My mothering instincts kicked in,” she recalled, “and I said, ‘Andrea, if you don’t give me the number, I’m going to take the next flight out.'”
She called Cosby and left a message. Meanwhile, the family tried to figure out what to do, she said: “Do we call police? Do we call a lawyer to protect us?” They consulted with her son-in-law, Stuart Parsons, a veteran Toronto city police officer, who testified in court on Tuesday. Andrea also called Ontario’s Durham regional police.
Cosby returned the call on Jan. 6. “I was really angry; I was in another state of mind,” Gianna Constand told the court. She asked Cosby: “What medication did you give to my daughter and what did you do to my daughter? She expressed anger that he’d gone to bed, leaving Andrea alone: “If my daughter was sick, why didn’t you call 911?” she recalled asking.
Cosby asked to include Andrea, who picked up an extension. “Let’s tell your mother what happened,” Cosby told her daughter, Constand testified, noting Cosby called her “Mom” throughout. It was a conversation that detonated the fiction that Cosby is Cliff Huxtable. Cosby, not her daughter, shared the details of the night her daughter said Cosby drugged and assaulted her, she said. “Andrea was embarrassed to tell.” Cosby said he touched her daughter’s breasts, she said, adding he told her: “Don’t worry, Mom, there was no penile penetration; there was digital penetration.” Cosby issued a sordid boast, Constand told the court: “Mom, she even had an orgasm.” She said Cosby said, “Andrea, do you remember?” At that point, Andrea hung up the phone, her mother reported.
Gianna Constand was furious: “He was leading me to believe it was consensual, manipulating it. He said, ‘I feel bad telling you this. I sound like a perverted person.’ ”
She was “fuming,” she said, but stayed on the phone, speaking to Cosby for two and a half hours. “I was very rude and very aggressive,” she said. She asked Cosby to write the name of the medication down on a piece of paper and mail it to her. He said he would, she testified. Cosby “started storytelling, manipulating,” she said. She recalled asking Cosby: “Why did you do that? You and Andrea were good friends. How did you know she would not drop dead?” Cosby asked if they’d called police. She recalled, when asked by the prosecution: “I said no. I did lie. I was very nervous, very scared … It was just panic all the way around.”
Constand told Cosby her daughter would need therapy and Cosby offered to pay for it, she said. He also asked if there was anything else he could do. She said she’d discuss it with her husband, but that she’d like an apology. She recalls Cosby saying, “I apologize to Andrea and I apologize to you, Mom.”
She regretted not recording the conversation, she said, so went to to buy a recorder at RadioShack. The court heard the second call with Cosby, which began with him saying: “I want to talk about a few mutual feelings for a friendship and to just see if Andrea is still interested in sportscasting in TV.” Her mother said she’d ask her. “You’re the boss now, boss,” Cosby responded. “I’m not the boss,” Constand told him. She said her daughter, then training to be a registered massage therapist, was “doing something different.” Cosby offered to set up schooling for Andrea in Toronto or wherever she wanted, “as long as she maintains a 3.0 grade point average, she’ll be fine,” he said.
He also mentioned graduate school as something they could discuss. Constand asked again for the name of the drug he gave Andrea. “We can talk about what you asked for later,” Cosby said on the tape. “I’m serious. Lets get with the other thing.” He said he’d have his people arrange a meeting in another city.
Cosby was thinking, “Let me fix this,” Costand said. “I was still wanting to know what he had given her.” When a call-waiting beep came on the phone, Cosby was suspicious. She told him it was their pet parrot. Later she’d explain to the court it wasn’t a lie: “I do have a parrot and the parrot was in the background,” she said, adding, “His name is Ozzie.” The aside elicited one of the rare moments of laughter heard in Courtroom A of Montgomery County Court.
When the prosecution asked Constand why she’d been so aggressive, she paused, put her hand over her face and began sobbing, before regaining composure: “I was very upset because Mr. Cosby had mentored her and they were good friends,” she said. “She viewed him like a father. He’s 10 years older than her own father. I was very distraught that he drugged her. She was a very healthy girl. She wasn’t a lot into drugs and alcohol.” She paused again. “Just the fact he betrayed her.”
As Constand spoke, Cosby, who’d been reported “smirking” during Andrea Constand’s testimony Tuesday, appeared expressionless, often looking down.
Agrusa’s cross-examination of Gianna Constand didn’t go far. She suggested Andrea hadn’t come clean to her mother with the “details of her relationship” with Cosby. The elder Constand shot back: “She didn’t share details of what he did to her.”
The lawyer suggested that Cosby, a married man, was actually apologizing for “being in a relationship” with her daughter. Constand countered that Cosby was “sorry for what he did” in terms of the night they had discussed.
The lawyer asked Constand if she knew her daughter had spent time alone with Cosby, and had traveled to see him at Foxwoods Resort Casino where she spent time in his room, even lying on his bed. Her daughter and Cosby discussed Cosby’s son on that occasion, Constand said, adding, “They didn’t have an intimate relationship. There was no physical relationship. Never.”
When Agrusa noted Andrea Constand had not lived at home for years, her mother was having none of it: “I hadn’t lived with her physically, but I live with her every minute of every day” (a closeness borne out by public posts on Gianna’s Facebook page).
The lawyer also took Constand to task for not telling Cosby he was being recorded when he seemed nervous after hearing the beep. “You chose to say it was nothing,” Agrusa said. “He didn’t ask if it was being taped,” Constand answered.
“You knew,” Agrusa said.
“It doesn’t matter, he didn’t ask,” Constand retorted.
After a long list of questions—about whether or not the Constand family left the show at Casino Rama early, whether Gianna Constand helped her daughter figure out the night of the assault she reported to police (“No,” she said), whether she had a lawyer when she gave her police statement—Gianna Constand lashed out in frustration. “The questions you are asking me are testing my memory about irrelevant things,” she said. “Could you ask me questions that are important. I’m having a hard time.” At that juncture, Judge O’Neill told Constand she needed to answer the question, not respond.
Agrusa, clearly realizing there was no upside in continuing, turned to Constand: “Your daughter is important to you,” she said. “I think all our children are important,” Constand shot back.
The arrival of Gianna Constand sent a jolt through the proceedings that, until then, had been submerged in judicial protocol. Her near-primal response in support of a daughter she implicitly believed laid bare a judicial system that holds the defendant to be innocent, while the complainant is subject to a barrage of attack assuming guilt. That was on plain display earlier in the day as Andrea Constand faced cross-examination that focused on everything from discrepancies in her various police reports to the fact she likes to talk on the phone to friends late at night.
The defence zeroed in on March 16, 2004, the date Constand had told detectives in Montgomery County and Cheltenham Township that Cosby assaulted her after she had gone out to dinner with Cosby and a group of people. On the stand a day earlier, Constand said she had been “mistaken”; the assault had been mid-to-late January 2004; she confronted Cosby about it after the dinner on March 16. Nevertheless, Agrusa combed through Constand’s phone records on March 16, to show she’d called Cosby and other friends at the very hour she said she’d been drugged and assaulted. The lawyer also spent time citing Constand’s late-night calls to a female friend, an exercise with no apparent point. The fact Constand brought bath salts to Cosby that were produced by a business run by a friend was another tangent explored; the lawyer asking the witness if she had ever talked about going into business with this bath-salt-making friend. “Yes,” Constand said.
Constand was questioned too for not mentioning bringing Cosby incense the first time she had dinner at his house, an item she said he requested. She was questioned for not mentioning the two had eaten dinner by a fire, their legs touching and lights dimmed (the prosecution would shoot down the “legs touching” detail on redirect). They also drank brandy, which was somehow rendered as nefarious behaviour. “I don’t remember how dim the lights were but I had to eat my dinner,” Constand said. She was also grilled for not mentioning in police reports that she asked Cosby whether the “three small pills” that would incapacitate her could be taken under her tongue.
Agrusa’s oddest line of questioning focused on allegations that Cosby, her client, made more explicit sexual advances than Constand reported. “He unbuttoned and unzipped your zipper. He touched the top of your zipper and proceeded to touch you,” the lawyer said. “He did not touch me,” Constand responded, saying, as she had the day earlier, she had leaned forward to thwart Cosby (the prosecution later provided earlier testimony from Constand that corroborated the point.)
Once again the court was taken to Foxwoods Resort Casino in November 2003, where Constand sat at the edge of the bed while Cosby lay out on it, his eyes closed. She again explained she had her feet on the floor the whole time.
Agrusa also combed through the date and time of the dozens of phone calls Constand placed to Cosby in late January and February 2004 to raise doubt as to why a woman who’d been sexually assaulted would contact her attacker. The fact Constand called Cosby numerous times on Feb. 14, Valentine’s Day, was fully canvassed:
“You knew Mr. Cosby was married, right?,” Agrusa asked.
“Yes,” Constand answered, later telling the court: “I may have been returning phone calls. Obviously I placed calls but I was receiving calls.” Assistant district attorney Kristen Feden put the calls in context in terms of power dynamics, asking Constand about Cosby’s illustrious stature at Temple, her employer:
“Was he on the Board of Trustees?” she asked.
“Yes,” Constand answered.
“If he called would you call him back?” Feden asked.
“Yes,” Constand answered.
The fact Cosby and Constand exchanged gifts—cashmere sweaters, perfume and a $225 hair dryer from Cosby and Temple-branded gear from Constand—would form the basis of another line of inquiry. Agrusa ended her cross-examination with a photoshopped picture of Fat Albert, a character Cosby used to play, with her face superimposed on it. Constand had given it to Cosby. A friend made it, Constand explained. “It was something silly.”
And that state of silliness was where the court was before Gianna Constand took the stand, reframing not only Commonwealth v. William H. Cosby, Jr., but also the enduring adoration for a man once known as “America’s Dad” who might now be justifiably remembered as the guy who said: “Mom, she even had an orgasm.”
More about Bill Cosby:
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