Cosby mis­trial leaves ques­tions

Ju­rors fail to find agree­ment on sex­ual as­sault charges. What’s ahead for the de­fen­dant and his ac­cuser?

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

Ju­rors fail to agree on sex­ual as­sault charges

District At­tor­ney Kevin Steele says ac­cuser An­drea Con­stand “de­serves a ver­dict,” and he plans to retry the case.

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 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 agree­ment — re­quired by law — re­sult­ing in a hung jury, and, thus, a mis­trial.

The jury de­clared it­self dead­locked Thurs­day, and Judge O’Neill sent them back to try again. By Satur­day morn­ing, ju­rors were still dead­locked. Cos- by lead de­fense at­tor­ney Brian McMona­gle mo­tioned again for a mis­trial, and O’Neill, who had re­jected mul­ti­ple mis­trial mo­tions while the jury was de­lib­er­at­ing, had lit­tle choice but to grant it.

A mis­trial, O’Neill says, is not a vindi­ca­tion for ei­ther party. Mont­gomery County District At­tor­ney Kevin Steele im­me­di­ately an­nounced he would retry the case, mean­ing it’s not over for Cosby and it’s not over for the sub­ur­ban Philadel­phia county’s ju­di­cial sys­tem.

What hap­pened? The bot­tom line: 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 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 de­layed for im­proper rea­sons,” says Den­nis McAn­drews, a for­mer Penn­syl­va­nia pros­e­cu­tor who has been fol­low­ing the case.

Pros­e­cut­ing sex crimes a decade or more af­ter an in­ci­dent is

al­most al­ways dif­fi­cult “be­cause mem­o­ries fade over time, po­ten­tial foren­sic ev­i­dence of­ten is un­avail­able, and ju­ries may won­der why they should con­vict if the al­leged as­sault hap­pened so long ago,” says Dan Schorr, man­ag­ing di­rec­tor of Kroll As­so­ciates and a for­mer New York sex­crimes pros­e­cu­tor.

OTHER AC­CUSERS LEFT OUT 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 in episodes around the coun­try dat­ing back decades (and thus too old to pros­e­cute).

Steele could not per­suade O’Neill to al­low the 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, to tes­tify that Cosby drugged and as­saulted her in a Los An­ge­les ho­tel in 1996.

“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 says.

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 hopes next time more ac­cusers will be al­lowed to tes­tify.

“The court only al­lowed one such prior bad act wit­nesses,” she said. “If the court al­lows more ac­cusers to tes­tify next time it might make a dif­fer­ence. In other words, it’s too early to cel­e­brate, Mr. Cosby.”

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,” says New York crim­i­nal de­fense at­tor­ney Stuart Slot­nick, who has been fol­low­ing the case for more than two years. “Here, how­ever, the pros­e­cu­tion had Cosby’s ex­pla­na­tion and de­po­si­tion, 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 vs. those made in the present, says trial at­tor­ney Priya So­pori of Green­berg Glusk- er in Los An­ge­les.

“They faced weighty ques­tions of cred­i­bil­ity, con­sent, drugs and sex­u­al­ity,” So­pori says. “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 says. “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.

THE DE­FENSE DID NOT PUT ON AN EX­TEN­SIVE CASE; DID THAT MAT­TER? 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 ( be­cause the bur­den of proof is all on the pros­e­cu­tion), it’s hard for laypeo­ple — i.e. ju­rors — to not think “Hmmm ...” when it hap­pens.

Cosby’s team called just one wit­ness when it came time to present his de­fense on Mon­day, and he fin­ished an­swer­ing a few ques­tions in a lit­tle more than five min­utes. “The de­fense rests,” lead de­fense at­tor­ney Brian McMona­gle said. And that was it. The trial that was sup­posed to last two weeks in­stead was over in the court­room in six days.

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

McAn­drew wasn’t sur­prised at the move ei­ther, since vir­tu­ally all of the ev­i­dence the Cosby team needed to ad­dress came in through the pros­e­cu­tion’s case, such as the de­po­si­tion and po­lice in­ter­view.

“Some of the Com­mon­wealth’s wit­nesses were also ef­fec­tively cross-ex­am­ined, and there­fore that left rel­a­tively lit­tle for the de­fense to in­tro­duce in their case-in-chief,” McAn­drews says.

Make no mis­take, Cosby got a “great de­fense” by McMona­gle and An­gela Agrusa, says Jill Stan­ley, a trial at­tor­ney in Wash­ing­ton and a for­mer fed­eral pros­e­cu­tor and crim­i­nal de­fense at­tor­ney who cov­ers celebrity le­gal news on her web­site, Proof With Jill Stan­ley.

“They fought hard on ev­ery wit­ness, ev­ery doc­u­ment, ev­ery re­port, on Cosby’s words — his de­fense was vig­or­ous,” Stan­ley says. “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.”

WHAT HAP­PENS NOW? Steele told the judge he in­tends to retry the case. He elab­o­rated later at a news con­fer­ence, say­ing Con­stand “de­serves a ver­dict.” He said he was dis­ap­pointed about the mis­trial but de­clared that he has no doubts about the state’s case and that the trial had mean­ing for vic­tims of sex­ual as­sault ev­ery­where.

“Our plan is to move this case for­ward as soon as pos­si­ble,” Steele said, adding that an­other year for the case would not be a bur­den. “One of the chal­lenges that we face in this type of case is the time pe­riod that has gone. But it doesn’t af­fect the ev­i­dence. And I hope, if you sat through the court pro­ceed­ings, you saw how pow­er­ful that ev­i­dence is.”

Slot­nick sug­gests some of Steele’s state­ments could be prob­lem­atic. “The pros­e­cu­tor’s press con­fer­ence was in­ap­pro­pri­ate as he dis­par­aged the de­fense,” Slot­nick says. “A pros­e­cu­tor should not make pub­lic state­ments that could po­ten­tially in­flu­ence a fu­ture jury pool.”

It’s not over for Cosby, Slot­nick says. “With­out a doubt, a mis­trial is a good de­vel­op­ment for Cosby, but he still has to face an­other trial. It is not time for Cosby to pop the cham­pagne, but a mis­trial makes the pros­e­cu­tor’s case harder to pros­e­cute.”

Mean­while, ev­ery­one, pub­lic in­cluded, will want to know what hap­pened with the jury and how the vote turned out. The ju­rors may now dis­cuss their de­lib­er­a­tions pub­licly, but they don’t have to.

“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 says. “A fairly even split be­tween the ju­rors means that there were sig­nif­i­cant doubts” about the pros­e­cu­tion’s case.

“If it’s 11-1 in fa­vor of guilty, the pros­e­cu­tion re­tries the case un­der the as­sump­tion there is one un­usual hold­out ju­ror who for what­ever rea­son never budged,” says Alan Tuerkheimer, a Chicago-based jury con­sul­tant who fol­lowed the case. “Did they miss some­thing in jury se­lec­tion that should have tipped them off ?”

Crim­i­nal de­fense at­tor­ney Lisa Houlé, a for­mer pros­e­cu­tor in Los An­ge­les County, says she would want to know the vote count but “more im­por­tantly, the is­sue in dis­pute be­fore de­cid­ing whether to retry some­one.”

“It is not time for (Bill) Cosby to pop the cham­pagne, but a mis­trial makes the pros­e­cu­tor’s case harder to pros­e­cute.” Stuart Slot­nick, New York crim­i­nal de­fense at­tor­ney

ED­UARDO MUNOZ AL­VAREZ, AFP/GETTY IMAGES

Bill Cosby was nei­ther con­victed nor ex­on­er­ated. The judge de­clared a mis­trial Satur­day when the jury could not reach a ver­dict.

MATT ROURKE, AP

An­drea Con­stand spent hours on the wit­ness stand, but the district at­tor­ney could not per­suade the judge to al­low more than one of Cosby’s other ac­cusers to tes­tify to his “prior bad acts.”

Bill Cosby did not take the stand, nor did he have to. His de­fense team called only one wit­ness, bas­ing most of its case on cros­sex­am­i­na­tion of pros­e­cu­tion wit­nesses.

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