What hap­pened in Cosby mis­trial and what’s next

Ju­rors fail to find agree­ment on sex­ual as­sault charges against ac­tor

USA TODAY International Edition - - FRONT PAGE - Maria Puente @us­atm­puente

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: Mong­tomery County 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 might have led to a mis­trial:

TOO MUCH TIME ELAPSED

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

Get­ting a con­vic­tion this long af­ter the al­leged as­sault is tough, lawyers say.

“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 de-

layed for im­proper rea­sons,” said Den­nis McAn­drews, a former Penn­syl­va­nia pros­e­cu­tor.

Prose­cut­ing sex crimes a decade or more af­ter an in­ci­dent is al­most al­ways dif­fi­cult “be­cause me­mories fade over time, po­ten­tial foren­sic ev­i­dence is of­ten un­avail­able, and ju­ries may won­der why they should con­vict if the al­leged as­sault hap­pened so long ago,” said Dan Schorr, man­ag­ing di­rec­tor of Kroll As­so­ciates, a former New York sex- crimes pros­e­cu­tor. OTHER AC­CUSERS LEFT OUT Steele could not per­suade O’Neill to al­low a dozen other ac­cusers to tes­tify that Cosby drugged and sex­u­ally as­saulted them, too, to demon­strate a pat­tern of “prior bad acts.” In­stead, Steele was al­lowed to call just one other ac­cuser, Kelly John­son.

“The tes­ti­mony of John­son helped cor­rob­o­rate Con­stand’s ac­count by sup­port­ing the ar­gu­ment that Cosby did have a pat­tern of drug­ging women in or­der to sex­u­ally as­sault them,” Schorr said.

But it wasn’t enough. Glo­ria Allred, the at­tor­ney who rep­re­sents 33 Cosby ac­cusers, told the me­dia out­side the court­house af­ter the mis­trial that she hoped next time more ac­cusers will be al­lowed to tes­tify.

O’Neill al­lowed Steele to in­tro­duce as ev­i­dence Cosby’s own words about his en­counter with Con­stand, in a 2005 po­lice in­ter­view and in a de­po­si­tion for her 2005 civil suit against him. The lat­ter con­tained dam­ag­ing ad­mis­sions that he ac­quired drugs to give to women he sought for sex.

“Cases such as this one are dif­fi­cult to pros­e­cute when there is a de­lay in re­port­ing and no ( foren­sic) ev­i­dence,” said New York crim­i­nal defense at­tor­ney Stu­art Slot­nick, who’s been fol­low­ing the case for more than two years. “Here, how­ever, the pros­e­cu­tion had Cosby’s ex­pla­na­tion and de- po­si­tion, which is not the case in most tri­als.” QUES­TIONS OF CRED­I­BIL­ITY In a she- said- he- said case with no foren­sic ev­i­dence, it all comes down to one ques­tion: Did the jury be­lieve Con­stand 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 trial at­tor­ney Priya So­pori of Green­berg Glusker in Los An­ge­les.

“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 mis­trial means “the jury had a rea­son­able doubt about Con­stand’s cred­i­bil­ity be­cause of some in­con­sis­ten­cies in her ac­count,” Schorr said. “Even though it is very com­mon for vic­tims of sex­ual as­sault to de­lay re­port­ing of the at­tack and have some in­con­sis­ten­cies in how they re­late the events be­cause of trauma, fear, em­bar­rass­ment and other is­sues, ju­ries some­times hold such in­con­sis­ten­cies against” them. WHAT HAP­PENS NOW? Steele told the judge he in­tends to retry the case.

It’s not over for Cosby, Slot­nick said. “With­out a doubt, a mis­trial is a good de­vel­op­ment for Cosby, but he still has to face an­other trial,” he said.

The jury may now dis­cuss their de­lib­er­a­tions pub­licly, but they don’t have to do so.

“It may change the ap­proach of the pros­e­cu­tion or the defense if it is re­vealed that the vote was 11 to 1 in either di­rec­tion,” Slot­nick said. “A fairly even split be­tween the ju­rors means that there were sig­nif­i­cant doubts” about the pros­e­cu­tion’s case.

MATT ROURKE, AP

Bill Cosby ex­its Mont­gomery County Court­house af­ter a mis­trial was de­clared in Norristown, Pa., on Satur­day.

MATT ROURKE, AP

District At­tor­ney Kevin Steele holds a news con­fer­ence af­ter a mis­trial in Bill Cosby’s sex­ual as­sault case Satur­day in Norristown, Pa. He said he in­tends to retry the case, and ac­cuser An­drea Con­stand “de­serves a ver­dict.”

GETTY IMAGES

Ac­cuser An­drea Con­stand leaves the court­room af­ter the judge de­clared a mis­trial in the Bill Cosby sex­ual as­sault trial.

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