In #MeToo era, Cosby team's attacks on victims may have backfired

[April 27, 2018]  By Joseph Ax

(Reuters) - Time and again during Bill Cosby's second trial, the comedian's lawyers launched blistering attacks on the six women who told a Pennsylvania jury that he had sexually abused them, questioning their motives and assailing their characters in stark terms.

Lead attorney Tom Mesereau called Andrea Constand, the victim in the case, a "con artist" and "pathological liar" and grilled another woman on her past drug use. His colleague Kathleen Bliss described former supermodel Janice Dickinson, who was a witness for the prosecution and testified that Cosby had sexually assaulted her, as a "failed starlet" who sounded like she had "slept with every man on the planet."

Confronted with an avalanche of damning evidence, defense lawyers may have felt they had no choice but to be hyper-aggressive.

But the tactic, not uncommon in cases involving sex crimes, appeared out of sync with the #MeToo movement and a national shift in sentiment toward sexual assault victims since Cosby's first trial ended with a hung jury last summer.

The withering tone and inflammatory words of the defense may have backfired with the jury of seven men and five women, which voted unanimously on Thursday to convict Cosby, 80, of drugging and sexually assaulting Constand at his home in 2004.

"I can understand people doing vigorous cross-examination, but calling people names and trying to characterize them in the most negative light struck me as a bridge too far. And I wonder if there was a boomerang effect in the minds of the jury," said Valerie Hans, a law professor at Cornell University who studies the jury system.

Cosby, who built a family-friendly image playing the lovable father in the television comedy "The Cosby Show," has been accused by more than 50 women of sexual assault, though all the allegations but Constand's are thought to be too old to support criminal charges.

He has denied any wrongdoing, saying any sexual encounters were consensual. His first trial in Pennsylvania last year ended with a hung jury.

Mesereau and Bliss did not respond to a request for comment about their strategic choices. Mesereau told reporters after the verdict that Cosby was not guilty and that they would appeal.

In addition to Constand, five other women, including Dickinson, were permitted by the trial judge to testify about their own allegations against Cosby. Though the charges related only to Constand, the other witnesses allowed the prosecution to portray Cosby as a serial offender.

Attorneys for actor and comedian Bill Cosby Kathleen Bliss and Tom Mesereau speak outside the Montgomery County Courthouse after a jury convicted Cosby during a sexual assault retrial in Norristown, Pennsylvania, U.S., April 26, 2018. REUTERS/Brendan McDermid

The #MeToo movement, which has destroyed the careers of numerous powerful men after a wave of sexual misconduct allegations, has helped women be believed rather than attacked when making such accusations, even in cases when victims avoided speaking up for years, as in Cosby's case.

"The defense may have been less able to rely on those stock narratives of lying women," said Deborah Tuerkheimer, a law professor at Northwestern University. "It may have backfired because jurors are more sensitive to this."

While none of the jurors spoke to reporters after the verdict, it is unlikely that #MeToo had no impact on any of them, said Dennis McAndrews, a former Pennsylvania prosecutor who attended the trial.

"We're in a different world now," he said, adding that the defense "overplayed its hand" at times by crossing the line from questioning credibility to blaming the victims.

In her own closing argument after the two-week trial, prosecutor Kristen Feden zeroed in on the defense's conduct, calling Bliss' comments about Dickinson "utterly shameful."

Bliss "is the exact reason women and men don't report these crimes," Feden said, as Bliss' face appeared to redden.

(Reporting by Joseph Ax in New York; Additional reporting by Brendan Pierson in New York and David DeKok in Norristown, Pa.; Editing by Leslie Adler)

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