USA TODAY International Edition
What happened in Cosby mistrial and what’s next
Jurors fail to find agreement on sexual assault charges against actor
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.