Can Bill Cosby get a fair trial? The answer is an emphatic ‘no’ if the entertainer’s lead attorney and history are to be believed. In court proceedings last week at the Allegheny County Courthouse in Pittsburgh—in a case that already involves the potent elements of money, fame, power and sex—Cosby attorney Brian J. McMonagle injected the hot button issue of race into the mix when he objected to the prosecution blocking two African-American women from the jury.
To date, no evidence has been presented in the trial where Cosby is charged with three counts of felony aggravated assault from a 2004 case involving Andrea Constand, an employee at his alma mater, Temple University.
However, the fact that only two of the 12 jurors seated for the trial this week are African American could prove problematic for the entertainer. Cosby’s massive wealth—his ability to hire the best lawyers, investigators and consultants—undoubtedly give him huge advantages over the typical defendant. Notwithstanding, a Duke University study shows that concern over the racial make-up of the jury is not without merit.
According to the study, juries formed from all-white jury pools in Florida convicted black defendants around 16 percent more often than white defendants. In cases with no blacks in the jury pool, blacks were convicted 81 percent of the time, and whites were convicted 66 percent of the time. When the jury pool included at least one black person, the conviction rates were nearly identical: 71 percent for black defendants, 73 percent for whites. The question remains whether the two African-American jurors seated in what many pundits dub the celebrity trial of the decade will be sufficient to alter these jarring statistics.
“I think this is the first strong and convincing evidence that the racial composition of the jury pool actually has a major effect on trial outcomes,” said senior author Patrick Bayer, chairman of Duke’s Economics Department.
The entertainer’s legal team thought it had won a major tactical victory when it persuaded the court that the jury pool should be drawn from the Pittsburgh area out of concerns that it would be hard to find open-minded jurors in Montgomery County, where Cosby has a home and where his trial is scheduled to start on June 5 in Norristown.
This perceived victory seem to fade as jury selection began this week and the prosecution began dismissing prospective jurors. Cosby’s lawyer argument that the prosecution was systematically targeting and excluding Black jurors was rejected by the trial judge. The court even rejected the defense’s claim that a former Black police officer, who said she could serve fairly, was being excluded for racial reasons. The court ruled similarly with respect to the prosecution’s exclusion of a black female sales coordinator a day earlier.
Cosby, himself, recently raised the prospect of race playing a role in his troubles during an interview with Sirius XM radio host Michael Smerconish. Smerconish read the comedian a quote from his daughter, Ensa, that said:
“Racism has played a big role in all aspects of this scandal.”
Asked if he agreed with his daughter’s words, Cosby said “Could be. Could be. I can’t say anything, but there are certain things that I look at, and I apply to the situation, and there are so many tentacles. So many different — ‘nefarious’ is a great word. I just truly believe that some of it may very well be that.”
With dozens of women, including black women, accusing Cosby of sexual crimes over a period of decades, many would argue that Bill Cosby brought his troubles upon himself and that any form of sympathy is misplaced. Before jumping on that band wagon and being persuaded that Cosby’s wealth is an equalizer, it’s critical to remember that the Sixth Amendment guarantees all defendants a trial by jury and the courts have made it clear that that means an impartial jury. Whether this holds true for Cosby is yet to be determined.