MISTRIAL DECLARED IN COSBY CASE Long lapse, lack of witnesses may have been factors

USA TODAY

The outcome of the Bill Cosby sexual assault trial is that there isn’t one: On Saturday morning, Judge Steven O’Neill declared a mistrial after the jury failed to reach a unanimous verdict on any of three counts of aggravated indecent assault of accuser Andrea Constand, following 52 hours of deliberation over five days.

Cosby was not found guilty and was not acquitted. A jury of seven men and five women could not reach a unanimous verdict — required by law — for either, thus resulting in a hung jury, thus resulting in the declaration of a mistrial.

Why did a mistrial happen? The bottom line: Montgomery County (Pa.) District Attorney Kevin Steele failed to prove the state’s case against Cosby beyond a reasonable doubt to at least one member of the jury. Here are several theories of what led to a mistrial:

Significant time lapse:

The encounter between Cosby and Constand happened in January 2004. She did not report it until a year later. Steele did not file charges until December 2015 (after a previous prosecutor declined for lack of evidence due to the time lapse).

“Prosecuting a case this old is inherently risky as jurors need to have a comfort level that justice is reasonably speedy and has not been delayed for improper reasons,” said Dennis McAndrews, a former Pennsylvania prosecutor who followed the case.

Some witnesses didn’t testify:

The defendant doesn’t have to testify, and Cosby did not, preferring not to open himself up to cross-examination about the five-dozen other women who have accused him of drugging and/or raping them.

O’Neill allowed Steele to call just one other accuser, Kelly Johnson, to testify that Cosby drugged and assaulted her in a Los Angeles hotel in 1996.

Constand’s credibility was questioned:

In a shesaid-he-said case with no forensic evidence, it all comes down to one question: Did the jury believe Constand’s testimony, and that Constand herself was credible?

Jurors have to weigh the testimony of the accused and the accuser, looking for inconsistencies in past statements versus those made in the present, said Priya Sopori, a Los Angeles trial attorney.

“They faced weighty questions of credibility, consent, drugs and sexuality,” Sopori said. “They (asked) themselves if the evidence showed beyond a reasonable doubt that Ms. Constand was coerced into taking drugs or if she willingly took drugs with an informed understanding of their effect and a willingness to engage in sexual conduct with Mr. Cosby.”

The short defense case:

No matter how many times a judge reminds a jury that under American law a defendant does not have to testify and does not have to put up a defense, it’s hard for laypeople — i.e. jurors — to not think hmmmn ... when it happens.

Cosby’s sole defense witness testified for a little more than five minutes.

Lawyers say such a move is not that unusual. “It is far more often that defendants do put on an extensive case than they do,” said New York criminal defense attorney Stuart Slotnick. “Often the reason is that the defense does not believe the prosecution met their very high burden of proving guilt beyond a reasonable doubt.”

Cosby got a “great defense” by Brian McMonagle and Angela Agrusa, said Jill Stanley, a trial attorney and former federal prosecutor and criminal defense attorney who covers celebrity legal news on her website, Proof With Jill Stanley. She attended the trial.

“They fought hard on every witness, every document, every report, on Cosby’s words — his defense was vigorous,” Stanley said. “Five minutes and one witness does not mean he was not fully represented. Their case started the minute the jury sat down in the box, in the way they carried themselves, in their aggressive and powerful opening statements. They left no stone unturned.”