Today, Explained - He said, she said, she said, she said....

Episode Date: April 12, 2018

Today is Day 4 of Bill Cosby’s retrial. The first trial ended in a hung jury, but this time things are different. Five new women are testifying, accusing Cosby of sexual assault. Vox’s Jen Kirby offers the latest, and Vox’s Laura McGann explains why Cosby’s retrial could be a game changer in the wake of #metoo. Learn more about your ad choices. Visit podcastchoices.com/adchoices

A quick note about Quip electric toothbrushes before we get started with the show. They're sleek. They're quiet. They give you these little pulses to let you know when to switch brushing quadrants. Go to getquip.com slash explain to learn more. Today is the fourth day of Bill Cosby's retrial in Norristown, Pennsylvania. Women who say Bill Cosby knocked them out with intoxicants and sexually abused them decades ago are finally getting a chance to confront the entertainer. The allegations stem from a 2004 incident involving Andrea Constant. And she says in 2004, she went to Cosby's home, which is in a suburb of Philadelphia, and he gave her pills, drugged her and sexually assaulted her. Cosby faces three

counts of aggravated indecent assault. Cosby maintains the relationship was consensual. So last year in June, the first trial ended in a hung jury. So they declared a mistrial. The jury couldn't reach a verdict. Jen Kirby's covering the case for Vox. And so the prosecution immediately said, we're going to retry this case. And a year later, here we are. There's a mountain of allegations against Bill Cosby. But why was the jury unable to come to a guilty verdict? You know, it's hard to say, but basically they just couldn't agree that Cosby was guilty. A couple of reports said there were two jurors that were hung up, but it seems to be that those jurors who were outstanding doubted Constance's testimony that Cosby drugged and sexually

assaulted her. Cosby has claimed that the encounter was consensual. Not all the jurors spoke out, so it's hard to know exactly what happened in the jury room, but they couldn't reach a verdict after almost a week of deliberations. If I know anything from my law and order days, it's that the prosecution will not retry a case unless it's pretty confident it can get the verdict it wants. So what's the prosecution doing differently this time around? So this case is a little bit different. More than 60 women have accused Cosby of some form of sexual misconduct. Most of them say that he drugged them or attempted to drug them and either sexually assaulted them or attempted to.

So the prosecutors want to get some of this evidence into the court. They asked if they could put 19 women on the stand. The judge said, you can put five. And he gave them a pool of eight women that they could choose from. In the first trial, only one other woman, one other accuser who had similar allegations was able to testify. What was the defense's major strategy last time, and how might it be different this time around? One, they kind of came out and said, this is Bill Cosby, he's America's dad, and don't you remember him on your television screens?

And sort of trying to relive the glory days, I guess. In the opening statement, the defense this time around really put down a stake that Constant is an opportunist and is after fame and is after money. The judge has let in some different evidence. He's bringing in information about a civil settlement that was settled in 2006 between Andrew Constant and Bill Cosby. Just to backtrack a little bit, this incident that Cosby's on trial for took place in 2004,

according to Andrea Constant. Okay. About a year later, she went to police and said, this happened to me. She gave them her testimony that she went to Cosby's house, that he gave her pills.

She became incapacitated and he sexually assaulted her. Police spoke to Cosby. Cosby said, I gave her Benadryl. We did some heavy petting, and it was consensual. The prosecution in 2005 declined to bring charges. Constant went ahead with a civil suit. They ended up settling that out of court in 2006,

and that settlement, the amount of money that she received, has never been disclosed until this week at trial. And how much was it? $3.38 million. Wow. The defense is trying to say, this woman, Andrea Constant, she was after money. The prosecution is trying to flip it as well and say, listen, Andrea Constant went to police in 2005. They declined to prosecute Cosby. She pursued a civil suit. She hasn't talked about it.

She never has spoken publicly until she testified in court. The lead attorney, Tom Mesereau, called her a con artist who tried to extort his famous client. Her motivation, he said, was, quote, money, money and lots more money. In 2006, Constant received nearly $3.4 million in a civil suit settlement with Cosby. You know, you're also hoping that people say $3.38 million, that's a lot of money. Why pay that if you're innocent? So it can kind of go both ways in this trial. But that's sort of a huge reason why this trial is different than the first. They have a witness who worked with Constant at Temple University who is going to testify that Constant said that she would make up a claim so that she could get money out of Cosby.

Really? Yes, Margo Jackson. She wasn't allowed to testify in the first trial. She's allowed to testify now. So that kind of a thing can change how you present your case. And on the prosecution side, other women are testifying, right? It's not just Andrea Constand up there. Four of the five women who the prosecution is going to call to testify have taken the stand and told their stories. And they've said some pretty dramatic things. So it's been intense to hear the reports coming out of the courtroom.

Late this afternoon, the prosecution called Heidi Thomas, one of the five additional accusers allowed to testify. She claims that he gave her a sip of wine or a glass of wine. She took a sip and then fell unconscious. At that point, she says sometime later she awoke to him forcing himself on her. Baker Kinney says at the time people didn't talk about date rape and that few would be believed, but maintains Cosby drugged her and sexually assaulted her in the early 80s. Shalon Leisha was in tears when she testified that Bill Cosby molested her when she was 17 years old. Leisha said Cosby gave her two blue pills and some alcohol when she told him she had a cold. She remembered not being able to move and Cosby touching her breast and rubbing himself against her leg.

As the judge called for a lunch recess, Leisha stared in Cosby's direction and said, quote, you remember, don't you, Mr. Cosby? Bill Cosby's 80 years old. I think he's legally blind. If he's found guilty, will they actually send him away to prison for the rest of his life? Like what could, what kind of consequences is he actually facing? He's charged with three counts of aggravated indecent assault. Each charge carries up to 10 years in prison. So it's probably unlikely he'd get that much, but he definitely could spend the rest of his life in prison if he's convicted. Is there any scenario in which the prosecution, if he gets off on this one too, might try him again? Are they just going to keep doing this until they get him?

It would be shocking if the prosecution tried him a third time. If this ends up in a mistrial, Cosby will essentially have been found not guilty. I would find it really, really surprising that the prosecution would pour more resources and more time into this if they just can't get a verdict. The bottom line is, this is still a he said, she said. There's no DNA evidence. The allegation is more than 10 years old. These kinds of things do matter. And it's hard in general to get a conviction in these types of cases. And it just doesn't seem likely that the prosecution would take that risk again. Okay. I'm not a betting woman, so I'm not going to say yes or no, but I don't think it's likely.

The biggest difference between Cosby's first trial last year and this one that just started is the Me Too movement. So will that be a game changer? That's after the break. This is Yochly Driesen from Worldly, Fox's weekly podcast on the most important stories in the world. I've worked in journalism for nearly 20 years, and even I feel a bit overwhelmed by the news right now. There's President Trump and Vladimir Putin. I had a call with President Putin

and congratulated him on the victory, his electoral victory. And there's the North Korean nuclear crisis. North Korea best not make any more threats to the United States. They will be met with fire and fury like the world

has never seen. And then there's the Russia investigation. The Russians may have something on him personally that they could always roll out and make his life more difficult. Want to make sense of all of this? Subscribe to Worldly. We're unpacking all of these stories and more every week. Come find us on Apple Podcasts or wherever you get your

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Use your spaceship toothbrush to attack the plaque in the four quadrants of your inner mouth. Go to getquip.com slash explain to learn more about an out-of-this-world experience. You'll also discover your first set of refill brush heads will be free. Getquip.com it's today explained i'm sean ramos from last year a jury couldn't decide whether bill cosby was innocent or guilty but a lot has changed since last year a year ago we we didn't know about harvey weinstein we didn't know about big media figures who have since been accused of all sorts of behavior, have lost their jobs. We weren't watching a groundswell of social media around women speaking out about their own stories. That context just wasn't there a year ago. Laura McGann is the politics editor at Vox.

We so rarely have a way to measure social movements. A jury couldn't decide a year ago whether to believe Bill Cosby or whether to believe a woman who accused him. This to me is interesting, this trial, because it almost creates a lab type experiment where the thing that has changed is the social movement. There are essentially like six accusers testifying in this case, yeah? Yes. Unlike in the first trial where there was the accuser, Constance, who is the victim in the case or the alleged victim, this time around the judge is allowing five additional

witnesses to testify against Bill Cosby. It's five women who say that they experienced similar incidences with Bill Cosby in the 80s. All of these women have sort of commonalities. They were models or aspiring actresses. One woman is slightly different. She was a bartender, but they all sort of fit a similar age range type of woman. The crimes are very similar. None of them know each other. And the prosecution is presenting them as corroborating evidence to lend credibility to the accuser in the case. Does it take that many witnesses, that many maybe victims, to actually corroborate the sexual misdeeds of a man post Me Too or pre Me Too? Is this like, does it need to be this mounting wall of claims? The first challenge or problem Me Too was confronting was women being believed and the public at large believing that this is a huge problem. Sexual assault, sexual harassment affects a lot of women, that the startling statistics are actually real and they're true. What sort of happened was this, it's not he said, she said. It's he said, she said, she said, she said, she said in a sort of global sense

that this is about a lot of women. And then we saw that starting to be applied in these high-profile cases around, I think Harvey Weinstein is probably the most prominent, but we saw it with Roger Ailes and others, that it was a pattern of behavior. And the reason those stories were so compelling is because these men appeared so predatory and it built a case around them that this isn't one woman, it's a lot of women describing things that they all experienced independent of each other. And that made a lot of sense in the early moments of Me Too.

The big challenge now I feel with Me Too is both helping the public understand that this is a huge problem on a huge scale, but without discrediting any single woman. Yeah. That if you're the victim of a crime, you are entitled to justice, you're entitled to a safe work environment, and you shouldn't have to be expected to round up all these other victims to prove your own case. And that's something I think we're starting to see around, in particular, this Bill Cosby case, that the way the prosecution is retrying this case

is by boosting the credibility of one woman with the stories of other women. And it does. It starts to then raise this question of how many women equal one man? Is it three? Is that a trend? I think that that is the next big question for me too, which is how do you maintain the significance of any one individual in something that's become such a collective movement? We've seen a lot of men sort of step away from their media, popular culture, empires,

Louis C.K., Harvey Weinstein, Kevin Spacey, Russell Simmons, but not a lot of charges being made, not a lot of criminal follow-up, let's say. Might this be the first one to sort of change that? I think Larry Nassar comes to mind as someone who actually was convicted of crimes. But I mean, it was like 5,000 women testifying against him. Is the Cosby trial the first time we might see someone who's going to be convicted for the sorts of things that we're seeing broadly in the Me Too movement? I think that the Bill Cosby trial is significant because it's saying these are not just bad things to do.

These actions are criminal. We've seen with a lot of these cases, like the men that you just mentioned, they sort of end up in what I call me to jail. It's not jail, people. It's just a guy who is very rich, doesn't get to stand on a stage. Right. Star in a movie. His book deal gets suspended. So if he's found not guilty, does that shift how we see punishment for these crimes?

And are we going to say that if you're publicly shamed for a little while and you disappear for a while, that's good enough, that that satisfies justice, that Me Too jail is good enough? Laura McGann is the politics editor at Vox. Thanks for listening to the show, and thanks again to Quip Electric Toothbrushes for all their support. You can learn more about Quip and their quiet, dentist-approved, well-designed electric toothbrushes at getquip.com slash explained.