America Convicted Bill Cosby Before the Jury Did—Then Ignored How His Conviction Collapsed
By Stacy M. Brown Senior Global Correspondent
Bill Cosby was never charged with rape in the criminal case that sent him to prison. He was never convicted of rape. Yet millions of Americans came away believing otherwise, fed a steady diet of allegations involving rape, Quaaludes, and drugging that often blurred the criminal charges, the testimony, and the accusations surrounding him.
When Pennsylvania’s Supreme Court overturned his aggravated indecent assault conviction after he spent nearly three years behind bars, another word dominated the conversation.
Technicality.
The court found something far more serious. Prosecutors violated Cosby’s constitutional right to due process through what Justice David Wecht described as a “coercive bait-and-switch.”
Cosby was 81, legally blind, and without a previous criminal record when Montgomery County District Attorney Kevin Steele’s prosecution sent him to prison. He left at 83.
Steele should have to answer how that happened.
There Was No Rape Charge
Steele charged Cosby with three counts of aggravated indecent assault involving Andrea Constand, who alleged that he digitally penetrated her and placed her hand on his penis while she was unable to consent to the acts.
Cosby maintained that the sexual contact was consensual. Testimony at trial also described an encounter at a hotel after a casino performance, when Constand sat at the edge of his bed seeking his attention, and Cosby, exhausted, declined.
There were also the multitude of phone calls Constand made to Cosby on Valentine’s Day; apparently, she was frustrated she couldn’t reach him on a day designated for lovers.
Among other things, Constand asked Cosby for tickets to his stand-up show in Canada, so her parents could enjoy her friend working his craft. All of this AFTER she alleged he touched her without permission.
Those were matters for jurors to weigh, not for a national audience to decide by the biased headlines a bloodthirsty media put forth daily.
Quaaludes became synonymous with Cosby’s name, although testimony identified the pills he gave Constand as one and a half Benadryl tablets. There was no toxicology evidence establishing that he gave Constand Quaaludes.
The widely publicized Quaalude testimony came from Cosby’s civil deposition and concerned other women decades earlier. The separate allegations became so intertwined that many Americans came to believe prosecutors had proved Cosby drugged Constand with Quaaludes and raped her.
Neither accurately describes the criminal charge nor the medication identified under oath in testimony.
The Constitutional Betrayal
Former Montgomery County District Attorney Bruce Castor investigated Constand’s accusation in 2005 and declined to prosecute. Castor, who repeatedly questioned Constand's credibility, maintained that he had assured Cosby he would not face criminal charges, thereby allowing Cosby to testify in Constand’s civil lawsuit without invoking his Fifth Amendment right against self-incrimination.
So, Cosby testified.
Years later, Steele twisted Cosby’s words, prosecuted him, and introduced excerpts from that deposition.
Pennsylvania’s Supreme Court ruled that the government’s conduct violated due process. The court ordered Cosby’s conviction vacated and barred any further prosecution on those charges.
Justice Wecht called the government’s conduct a “coercive bait-and-switch.” Justice Kevin Dougherty concluded that Cosby’s due process rights had been violated.
The ruling held that the Commonwealth could not obtain testimony after inducing Cosby to waive his constitutional protections and then using that testimony to prosecute him.
That is not a paperwork error or a technicality. It is a constitutional violation that cost an elderly man nearly three years of his freedom. Everyone should be outraged.
A Judge Whistling “Kill Bill”
I covered Cosby’s trials and witnessed conduct inside the Montgomery County courthouse that warranted considerably more scrutiny.
During deliberations in the second trial, Judge Steven T. O’Neill walked near the jury deliberation room, whistling “Twisted Nerve,” a tune widely associated with Quentin Tarantino’s Kill Bill.
I reported the incident at the time. A woman named Pauline Knightner also witnessed it.
An elderly Black defendant was awaiting a verdict that could send him to prison. The judge presiding over his trial was whistling music from the film Kill Bill near the jury room.
Imagine the reaction if a Black judge had done the same during the trial of an elderly white celebrity.
O’Neill also faced a defense request that he recuse himself because of questions about his wife Deborah’s sexual assault advocacy and her connections to organizations associated with women protesting Cosby.
He refused and defended his wife’s work from the bench.
The issue was not whether Deborah O’Neill could support causes she believed in. It was whether the circumstances created an appearance of impropriety during a trial watched by worldwide media, which featured a conglomerate of reporters who routinely regurgitated in their newspapers and on their news stations just about everything Steele's press secretary told them—word-for-word.
The judge controlled which witnesses testified, which evidence jurors heard, and which arguments the defense could make. His conduct warranted scrutiny, not silence.
Mesereau’s Warning
Thomas Mesereau, the attorney who successfully defended Michael Jackson in another high-profile criminal trial, represented Cosby during the second trial in 2018.
According to someone present who heard the exchange, Mesereau told Cosby he was being railroaded.
The account came from someone who witnessed the conversation, not from speculation about what Mesereau might have believed.
Mesereau had watched the judge’s rulings, the prosecution’s presentation, and the admission of testimony from five additional accusers whose allegations were not part of the charges involving Constand.
But his own jury decision warrants examination.
Cosby’s first jury was drawn from the Pittsburgh area and deadlocked after about 58 hours of deliberation. Reports suggested that jurors mostly had leaned toward acquittal, though they never reached a verdict.
For the retrial, Mesereau immediately and stunningly agreed to a jury from Montgomery County. Did he even consult Cosby?
Steele was the county’s elected district attorney. He had campaigned on his willingness to prosecute Cosby. Local residents had been exposed to years of publicity about the case.
The first prosecution failed to secure a conviction with jurors brought in from outside Montgomery County. The second secured one with local jurors, many of whom had biases and/or ties to prosecutors or local law enforcement.
Mesereau’s reported warning that Cosby was being railroaded deserves attention alongside the decisions leading up to the verdict.
A Juror Who Already Knew
Before opening statements in the retrial, a selected juror was accused of saying that “everyone could go home because Cosby was guilty.”
No witness had testified, and no evidence had been presented.
The defense sought to remove the juror. O’Neill questioned him and allowed him to remain.
Cosby faced imprisonment after a juror was accused of announcing his guilt before the proceedings began. Interestingly, a prospective Black woman juror was removed before the first trial because of false allegations launched against her. Although the allegations were later found to be false, O’Neill still allowed prosecutors to remove her.
Race also entered the jury-selection controversy.
Defense lawyers challenged prosecutors’ treatment of Black prospective jurors. A member of the prosecution team was accused before the second trial of referring to a Black juror as the defense’s “one token.”
The allegation raised questions about whether race influenced jury selection—it most certainly did. A Black defendant’s constitutional protections do not disappear because he is famous, wealthy, or widely disliked.
Questions about racial language also reached Constand’s side. Allegations included racist remarks attributed to Constand and relatives, along with testimony from a witness about a purported effort to “get Cosby.”
Those allegations required examination, particularly if the information bore on the credibility, bias, or motive of the prosecution’s principal witness.
What did Steele’s office know, what did prosecutors investigate, and what information did prosecutors disclose to the defense?
Those questions remain appropriate regardless of anyone’s opinion of Cosby.
The Chef, the Calendar, and the Deadline
Cosby’s former chef’s testimony raised questions about the prosecution’s timeline.
Perhaps the most credible of all witnesses, the chef described preparing meals during Constand’s visits to Cosby’s home. He was employed until May 2003.
Prosecutors placed the charged encounter in 2004. The chef’s testimony supported an earlier timeline, which could affect whether the prosecution fell within Pennsylvania’s statute of limitations.
The distinction could have determined whether the Commonwealth could legally bring the charges.
Cosby’s defense sought a definitive ruling on the timing, but the judge allowed the prosecution to proceed without the resolution the defense sought. That is unheard of in American justice.
The chef had firsthand knowledge of Constand’s visits and a verifiable termination date. His testimony was not a minor scheduling dispute.
When the law sets a deadline for prosecution, the government must show it brought its charges within that deadline.
Margo Jackson and Five More Accusers
Marguerite “Margo” Jackson, who worked at Temple University, testified that Constand had falsely discussed accusing a celebrity of sexual assault to obtain money.
According to Jackson, Constand said she would claim something had happened, receive money, leave her job, return to school, and start a business.
O’Neill excluded Jackson’s testimony from Cosby’s first trial, which ended in a deadlocked jury. He allowed her to testify at the retrial but denied testimony from a man who knew the Constand family well and who described rampant racism and money as motivators for Constand and her family making allegations against Cosby.
O’Neill did allow the second jury to hear five additional women describe unproven and uncharged allegations against Cosby, although those accusations were not the criminal charges involving Constand.
The court admitted their testimony under evidentiary rulings, but it still substantially affected the jury.
Jurors were required to determine whether the Commonwealth proved the specific charges against Constand beyond a reasonable doubt. Hearing multiple other accusations created an obvious risk that judgments about Cosby’s character could overwhelm their assessment of the charged encounter.
The first jury did not convict him. The second did.
Allred’s $100 Million Proposal
Attorney Gloria Allred became one of the most visible figures in the campaign against Cosby.
In 2014, she publicly proposed that Cosby waive the applicable statutes of limitations so accusers could file lawsuits or that he establish a $100 million fund for women alleging misconduct. Soon after Allred’s much-publicized bounty, two women quickly became 60. Now, the public could say, "Not everyone is lying,” a devastating assumption that Black Americans have particularly grown accustomed to in America’s criminal justice system.
A journalist also reported an apparent incident in which Allred seemed to signal from the gallery for a woman to cry while the woman was testifying. That account raises many questions.
Witnesses should testify without coaching by spectators, attorneys, or anyone else.
The public had every right to hear allegations against Cosby. It also deserved serious reporting on the conduct of those involved in prosecuting the case, both publicly and in the courtroom.
Guilty in the Court of Public Opinion
Before the second jury convicted Cosby, his professional and public standing had already been severely damaged.
Television projects vanished. Networks pulled reruns. Organizations severed ties. Universities revoked honorary degrees.
Accusations multiplied until their number became evidence in the public imagination.
But allegations do not become criminal convictions through repetition. Each accusation has its own facts, witnesses, dates, contradictions, and legal requirements.
Cosby’s extramarital relationships did not mean he committed aggravated indecent assault or rape.
Infidelity is not rape. Adultery is not aggravated indecent assault. Personal misconduct does not nullify the Fifth Amendment.
The Constitution does not reserve due process for defendants the public finds sympathetic.
The Degrees Went Back. Did the Money?
Universities once competed to honor Cosby. After the allegations became national news, institutions rushed to revoke his honorary degrees.
Bill and Camille Cosby had donated millions to education, particularly to Black education. Their historic $20 million gift to Spelman College helped support opportunities for generations of students.
How many institutions that rejected Cosby’s name returned his money? How many surrendered the buildings, programs, or educational opportunities his contributions helped fund?
If association with Cosby had become unacceptable, the institutions owed the public an explanation of how they reconciled that position with keeping his financial contributions.
His Civil Rights Record Cannot Be Erased
Cosby’s life did not begin with Andrea Constand as Steele and O'Neil would have you believe. Somehow, they were ahead of those in power who are trying to erase Black history.
In 1965, I Spy made him a leading Black actor in a major American television drama, even though Black performers were routinely denied opportunities of that magnitude.
Fat Albert and the Cosby Kids centered on Black children. The Cosby Show brought an educated, prosperous Black family into American living rooms. A Different World introduced millions to historically Black colleges and universities.
Cosby and his wife donated millions to HBCUs, scholarships, and cultural institutions.
His civil rights relationships also continue today.
Civil rights leader Andrew Young and former Virginia Gov. L. Douglas Wilder remain Cosby’s friends.
Young marched alongside the Rev. Dr. Martin Luther King Jr., helped lead the Southern Christian Leadership Conference, served in Congress, became U.S. ambassador to the United Nations, and later served as Atlanta’s mayor.
Wilder became the nation’s first elected Black governor.
These are ongoing friendships; not historical associations revived for public relations.
Neither friendship establishes what occurred between Cosby and Constand, but they belong in an accurate account of a man whose contributions to Black advancement cannot be erased because of criminal allegations, just as those contributions cannot determine the truth of an accusation.
Mr. Steele, Answer the Questions
Millions heard about Quaaludes. Far fewer heard testimony identifying one and a half tablets of Benadryl.
Millions believed Cosby had been convicted of rape, but he had not been charged with rape.
Millions watched him enter prison. How many understood that Pennsylvania’s highest court later ruled the prison had violated his constitutional rights?
Questions arose about Margo Jackson, the chef’s timeline, the juror accused of prejudging the case, allegations of racial language, the prosecution’s treatment of Black jurors, and O’Neill’s refusal to recuse himself.
A judge whistled a tune associated with Kill Bill near the jury room.
Mesereau warned Cosby that he was being railroaded, according to the report.
Pennsylvania’s Supreme Court ultimately ruled that the prosecution could not lawfully proceed as it had.
Steele should explain why his office prosecuted Cosby despite Castor’s earlier assurance, why it relied on testimony obtained after Cosby relinquished his Fifth Amendment protection, and how prosecutors handled information that challenged Constand’s credibility and the prosecution’s timeline.
He should explain what his office knew about allegations of racial bias, the disputed juror, and how it handled potentially favorable defense evidence.
Most importantly, he should explain why the public should accept the characterization of the Supreme Court’s ruling as a technicality, given that the court found a violation of constitutional due process.
Cosby entered prison at 81 and left at 83. The Commonwealth cannot restore those years, undo the time spent behind bars, or reverse the damage to his career and reputation.
He had entertained America for decades, broken racial barriers, supported Black education, and made personal decisions that drew criticism. None of those circumstances changed what the government owed him: Due process.
The Pennsylvania Supreme Court ruled that the Commonwealth had violated that obligation. America spent years demanding that Bill Cosby answer allegations against him.
Kevin Steele should now answer for the unconstitutional prosecution that cost Cosby nearly three years of his freedom.
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