Jury selection is set to get underway today in comedian Bill Cosby's sexual assault retrial in Philadelphia in a cultural landscape changed by the #MeToo movement, posing new challenges for the defence and the prosecution.
Experts say the movement could cut both ways for Cosby, making some potential jurors more hostile toward him and others more likely to think men are being unfairly accused.
This is a very difficult time to try someone who has been accused of sexual assault.- Alan Dershowitz, defence lawyer and law professor
"We really have had this explosion of awareness since that last trial, and it has changed the entire environment," said Richard Gabriel, a jury consultant who has worked on over 1,000 trials. "It is a huge challenge for the defence, but it could also provide an avenue and open up the topic."
The process of picking 12 jurors was to begin on Monday in suburban Philadelphia.
A jury deadlocked last June at the former TV star's first trial after Cosby's lawyers managed to sow enough doubt in the minds of a few jurors. That was before the #MeToo movement against sexual misconduct started toppling famous men in rapid succession, among them Harvey Weinstein, Matt Lauer, Kevin Spacey and Democratic U.S. Senator Al Franken.
Veteran lawyers and jury consultants say #MeToo will make jury selection more complex and raise the stakes even higher.
The defence 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 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 defence."
Cosby, 80, is charged with drugging and molesting Andrea Constand, a Canadian former Temple University athletics administrator, at his suburban Philadelphia home in 2004.
Last year, after more than 52 hours of jury deliberations over six days, the judge declared a mistrial. One juror said the panel was split 10-2 in favour of conviction, while another said the group of seven men and five women was more evenly divided.
A juror who spoke to The Associated Press on condition of anonymity said he was suspicious of Constand's story, questioning why she waited to tell authorities about the alleged assault and suggesting the clothing she wore to Cosby's house had influenced his view of their encounter.
The Associated Press and CBC News do not typically identify people who say they are victims of sexual assault unless they grant permission, which Constand has done.
Cosby has a retooled legal team for his second trial, led by former Michael Jackson lawyer Tom Mesereau.
Last year's case was mostly he-said-she-said, but the judge agreed last month to let the jury at the retrial hear from an additional five women who have accused Cosby, 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 defence to chip away at all six, especially if there is a common thread and story," Gomez said. "That shows a pattern of behaviour."
Impartial jury elusive, defence argues
Typically, prosecutors and defence lawyers 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 defence lawyer and Harvard Law School Prof. 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. But 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."