The judge overseeing the trial of comedian and television patriarch Bill Cosby declared a mistrial in the only sexual assault allegation against Cosby to go to trial, but the lead prosecutor is vowing a retrial because he says accuser Andrea Constand “is entitled to a verdict.”
“Do you believe there’s a hopeless deadlock that cannot be resolved by further deliberation?” the judge asked each juror on day six of the trial. Each said yes. The judge then declared a mistrial.
It’s a stunning development for Cosby, whose reputation took hit after hit following as many as 40 allegations from a parade of women who say the once beloved comedian drugged and sexually assaulted them. The mistrial was seen by some online as a sign of how difficult it is for an accuser to find justice in sexual assault cases, especially those involving a celebrity. Others stressed that Cosby, as with everyone, was entitled to the presumption of innocence and his day in court.
Cosby’s wife of 53 years, Camille, released a harshly worded statement trashing the judge, media and prosecutors. In it, she called Steele “heinously and exploitively ambitious,” the news media vicious, the judge a collaborator, and Constand’s attorneys unethical.
However, in a press conference after the mistrial was declared, the Montgomery County District Attorney, Kevin Steele, announced that he will retry Cosby.
“We will push forward to try and get justice done,” Steele said during a press conference after the mistrial. “We hope that moving forward in this case sends a strong message that victims of these types of crimes can come forward and can be heard on what has happened to them.”
However, Cosby’s lawyer declared that justice “is real; it lives here in Montgomery County.”
Judge Steven T. O’Neill’s decision came after the mostly male, almost all white Cosby jury announced several times that it was hopelessly deadlocked in the case alleging that Cosby engaged in the aggravated indecent assault of Constand, then a Temple University employee who, at one time, considered the much older Hollywood star to be a mentor. Constand was in court when the mistrial was declared, although she didn’t show any visible reaction, other than hugging her supporters. Cosby sat expressionless, according to The New York Times.
Constand says Cosby fed her blue pills he dubbed his “friends” and then, when she felt too woozy to consent, touched her sexually. By Friday afternoon, the jurors had deliberated for 45 hours. “What we got now is jurors trying to overcome other jurors by reading testimony in the case,” Cosby’s lawyer told the judge. “We’re well past the point of free will.”
The case revolved around the question of consent. Constand insisted she did not consent to sexual contact with Cosby, and prosecutors argued that Constand was too incapacitated to legally consent were she so inclined. In contrast, Cosby’s lawyers put Constand on trial, digging into inconsistencies in her different statements over the years, pointing out that a previous prosecutor opted not to charge the case, and accusing her of making up the accusations for money.
The defense never called Cosby himself to the stand, keeping the focus on Constand, the accuser, instead.
The Cosby jury hung after five days of deliberations, although the jurors’ failure to reach a unanimous verdict became apparent several times in. Twice, the judge rejected a defense motion for a mistrial, sending the jury back in to try once again.
Cosby, 79, was facing a life prison sentence due to his advanced age were he to be convicted of the crimes. The comedian admitted giving Constand drugs with her knowledge and having sexual contact with her in a past deposition that the jury asked to scrutinize.
Cosby had faced three charges, according to NBC Philadelphia: “Count 1 alleges that Cosby didn’t have consent when he penetrated Constand’s genitals with his fingers. Count 2 alleges she was unconscious or semi-conscious at the time and could not give consent. Count 3 alleges all this happened after he gave her an intoxicant that substantially impaired her and stopped her from resisting.”
Cosby’s publicist, Andrew Wyatt, told the media Cosby’s “power is back,” drawing criticism online.
One Cosby accuser came out to face the media after news of the first deadlock:
Here’s what you need to know:
1. The Jury Deliberated for More Than Five Days & Asked for the Definition of ‘Reasonable Doubt’
Although the jury never heard from Bill Cosby himself via the witness stand, the jurors were privy to a past deposition that Cosby gave when Constand sued him civilly. After a previous prosecutor had declined to file criminal charges against Cosby, Constand had sued him in civil court.
The jury showed great interest in this deposition – as well as statements Constand gave to the initial police officer she contacted to make her accusations – during its ultimately failed deliberations. At one point, jurors also asked the judge to read them back the definition of “reasonable doubt.”
According to the Los Angeles Times, “the judge read aloud portions of deposition testimony from the trial involving Cosby’s past purchase of Quaaludes to facilitate sex with women.”
The Cosby jury was tilted male and white. It was composed of seven men and five women, who were selected in Allegheny County, Pennsylvania, and who started deliberating on June 12. The racial makeup of the jury was a concern some had early on ; Racial bias allegations were raised during jury selection; only two African-Americans ended up seated on the 12-person jury.
The trial itself spanned six days. According to Page Six, Cosby “hung his head or held his face in his hand” during the prosecutor’s closing arguments on the final day of the trial, in which the District Attorney dubbed him a predator who took advantage of Constand after drugging her.
The allegations dated back to 2004, when Constand says that she passed out after taking the three blue Benadryl pills that Cosby called “three friends,” and “awoke to Cosby fondling her,” reported Page Six.
The jury had questions about count 3 at one point during days of deliberations which revolved around the notion of consent. One twist in the Cosby case is that the accuser admits knowing that Cosby had offered her the pills purportedly so she could relax. It wasn’t a case where, for example, the accused slipped drugs into someone’s drink without them being aware of it.
The jury’s first request came early on in the deliberations. “They emerged once during their early talks, asking to see a section to Cosby’s deposition in which he described giving pills to Constand on the 2004 night she says he drugged and sexually assaulted her, and later for more evidence,” reported Philly.com. That deposition came in Constand’s earlier civil suit.
“This is a very conscientious jury,” the judge said. “This is a hard working jury that’s abiding by its oath in this case.”
The jury didn’t only scrutinize Cosby’s past statements in the deposition. They also asked to read Constand’s testimony and previous statements.
“Jurors wanted the testimony of Detective Dave Mason read back to them Tuesday,” the AP reported. “Mason testified… that Constand told him Cosby gave her pills that made her feel woozy. Constand told police she was semi-conscious as he touched her breast and genitals.” Cosby’s lawyers have argued there are discrepancies in the various accounts Constand has given over the years, but the prosecution has said they are minimal and meaningless.
In the earlier deposition given after Constand sued Cosby in 2005, Cosby said he gave Constand Benadryl to “relax” her during what he described as a consensual sexual encounter, ABC News reported. According to AP, one excerpt quotes Cosby as saying about reaching into Constand’s pants, “I go into the area that is somewhere between permission and rejection. I am not stopped.”
“I wanted her to be comfortable and relaxed and be able to go to sleep after our necking session,” he said in the deposition, according to ABC News.
In the depositions, Cosby said that he “developed a romantic interest in Constand the very first time he saw her at the Temple basketball game and that he found her good looking,” according to a probable cause affidavit in the case. He developed a friendship with her first.
Cosby admitted getting pills and said he “offered them” to Constand, the court document alleges. He allegedly described them as “three friends” to make her relax. He said he gave her the pills because “they might help take some of the stress way,” the document contends.
That part of the deposition comes on page 9 of this document:
In a question to the judge, the jury asked, “Can we see the part in Mr. Cosby’s testimony where he called the pills ‘his friends?’ We need to see the whole context.”
He also admitted fondling Constand. In the 2005 deposition, Cosby also acknowledged that he had, in the past “obtained seven prescriptions in his own name for Quaaludes that he never took” and didn’t intend to take himself.
He said “yes” when asked “was it in your mind that you were going to use these Quaaludes for young women that you wanted to have sex with?” the court documents allege.
According to the Pennsylvania Crimes of Sexual Violence benchbook, “The Pennsylvania Supreme Court held that an intoxicated victim who was intermittently unconscious throughout the sexual assault and in an impaired physical and mental condition was unable to knowingly consent, and therefore her submission to sexual intercourse was involuntary.”
2. The Defense Had a Surprise Witness Up Its Sleeve but Didn’t Get to Call Her
If the jury had a difficult time coming to an unanimous verdict based on the testimony presented in court, one can only wonder how tough the deliberations would have been if the jury could have heard from the defense team’s surprise witness, a long-time Temple University adviser named Marguerite Jackson.
In the midst of deliberations, during a lunchbreak, the defense team surprised the news media by releasing the statement of Jackson, whom the judge did not allow the defense to call to the stand because her testimony would have been hearsay.
Marguerite Jackson, whom the defense unsuccessfully sought to call, claims Constand told her she was going to make up allegations against a high-profile person:
However, Constand testified that she has never met Jackson.
The defense derided the trial, saying that Cosby was not receiving a fair trial.
The defense did not rely on the testimony of Bill Cosby himself; the one man in a position to rebut Constand’s accusations, the only other person in the room, exercised his right to remain silent.
However, that was not necessarily a legally faulty call.
Some legal experts defended this decision; Cosby would have been a risky witness to put on the stand because of his age and health, not to mention his past statements in depositions which the prosecution could have used to highlight any contradictions, imperiling his credibility with the jury. Calling character witnesses could have opened the door for the prosecution to tell the jury about accusations from the parade of other women. Although the jurors may have heard about all of those women, they were not allowed to consider their accounts in judging Cosby for the Constand allegations.
Cosby’s defense attorney Brian McMonagle said the accuser in the case, Constand, “had too many inconsistencies in her story to be a reliable witness,” according to CNN. “This ain’t right!” McMonagle said, calling the accusations a lie driven by greed, according to The Washington Post.
The defense attorney pointed out that Constand did not come forward to police right away, doing so in 2005, meaning the case was finally being prosecuted 12 years later. While not unheard of, that certainly does compound things for the state.
The defense presentation lasted only six minutes, surprising some observers, according to The Post. The defense attorney called only the detective who spearheaded the case and also testified for the prosecution, reported Fox News. The defense strategy was to poke holes in the prosecution’s case.
The jury also had Cosby prior statement to police to consider.
In a statement to police, Cosby admitted giving the victim Benadryl, the probable cause affidavit contends. He said that after she took the pills, they began touching and kissing and she “never told him to stop, never pushed him away, never told him her vision was blurred and never said she felt paralyzed or affected by the Benadryl.”
He alleged there were other instances where they “petted and kissed.”
The defense attorney “described his client as a philandering husband, but an overly forthcoming one whose own statements about Constand have remained entirely consistent over 12 years — no matter how damaging,” reported Philly.com.
You can read the Cosby deposition here:
Learn more about Marguerite Jackson:
3. The Prosecutors, Who Called Cosby a Predator, Say They Will Retry the Case
What happens after a mistrial?
That’s up to the prosecution. The State of Pennsylvania can choose to retry Cosby, but it doesn’t have to do so. It was far from clear how the state will proceed, especially considering the comedian’s advanced age, high profile, and relatively poor health. However, in a press conference, the DA announced intentions to retry Cosby over the Constand allegations.
However, prosecutors painted a picture of Cosby that stands in polar opposite to the image he carefully crafted over the years as a Jello pitchman and father on TV. They told the jurors that he was calculating. They told the jurors he was a predator.
Prosecutors called 12 witnesses during their side of the case, according to The Washington Post. “He assaulted her. Drugging somebody and putting them in position is not romantic, it’s criminal,” said Montgomery County District Attorney Kevin Steele.
Steele attempted to strip lingering sympathy away from Cosby – the challenging part here for the state is that everyone knows Cosby – in a closing argument that “described Cosby as a calculating sexual predator who not only drugged and assaulted Constand more than a decade ago but also cruelly recast the attack as consensual and romantic,” reported ABC News.
“To allege that this is just some relations that is going to another level just doesn’t make sense,” Steele said. “If you have sexual relations with somebody when they’re out, when they’re asleep, when they’re unconscious, that’s a crime… By doing what he did on that night, he took away that ability, he took that from Andrea Constand. He gave her no choice in this matter.”
The prosecutor “reminded jurors about a telephone conversation in which Cosby apologized to Constand’s mother and described himself as a ‘sick man,'” reported Fox News.
The strongest arrow in the prosecutors’ quiver: The fact that Cosby admitted giving pills to Constand and then having sexual contact with heer. But it wasn’t enough to the jury.
4. Camille Cosby Came to Court for Closing Arguments & Slammed the Judge, Media & Prosecutors
Camille Cosby, Cosby’s wife, released a harshly worded statement after the mistrial was declared.
“How do I describe the District Attorney? Heinously and exploitively ambitious. How do I describe the judge? Overtly and arrogantly collaborating with the District Attorney. How do I describe the counsels for the accusers? Totally unethical,” she said in a statement read by Cosby’s defense team. You can read the full statement here.
Although the defense attorney decided not to take the risk of calling character witnesses, Cosby did have one powerful character witness who showed up and didn’t speak. However, the mere presence of Camille Cosby in the courtroom did cause waves when it happened.
Camille Cosby, the comedian’s wife of more than five decades, who has stood by her husband’s side through the parade of allegations, was absent for most of the trial, but she did show up in the courtroom on the final day. She sat quietly in the courtroom, an obvious attempt to humanize Cosby.
Camille, who has been married to Cosby for 53 years, stayed in court for the defense team’s closing arguments but left before the prosecutor started giving his version of events, reported Page Six.
The defense attorney even pointed toward Camille Cosby several times during his closing argument, reported Fox News. Whether Camille’s appearance garnered any sympathy for Cosby among jurors is not clear.
5. Andrea Constand Took the Witness Stand for Hours of Emotional Testimony
The most emotional and central witness to take the stand was Andrea Constand, the accuser.
In contrast to Cosby, who never took the stand, Constand, 44, testified for seven hours. According to ABC News, she testified that Bill Cosby “gave her a drug at his home in Montgomery County, Pennsylvania, in 2014. The drug rendered her unable to stop his assault.”
“In my head I was trying to get my hands to move or my legs to move, but I was frozen, and those messages didn’t get there, and I was very limp, so I wasn’t able to fight him,” she said, according to ABC News. “I wanted it to stop.”
According to the probable cause affidavit in the case, Constand was employed as the director of operations for the Temple University women’s basketball team when she was introduced to Bill Cosby after he contacted her office “to discuss business-related matters.”
They exchanged personal phone numbers and developed what she “believed to be a sincere friendship.” She says she saw him as a mentor, not a romantic interest.
The 37-year older celebrity invited her to his home for dinner, to restaurants, events, made introductions for her and gave her career advice.
Constand said she “had no interest whatsoever in a romantic relationship with Cosby” but alleged he made sexual advances towards her twice before the alleged assault.
The first incident occurred after he invited her to his home for dinner, and “without warning, Cosby reached over and touched her pants, her waist, and her inner thigh.” She left, the documents contend.
On another occasion, she went “for a social visit” to Cosby’s home when “out of the blue” he unbuttoned her pants and began touching her. She left again, rejecting his advances, according to the court documents.
Constand continued acting his invitations.
In the incident that led to the charges, she said that Cosby invited her to his home to “talked about” her future career plans.” She said she felt “drained” and “emotionally occupied” and had been missing sleep so Cosby said he wanted her to relax. He had three blue pulls in his hand and urged her to take them. He then urged her to “just taste the wine,” the documents say.
She experienced blurred vision and difficulty speaking, including losing all strength in her legs, which felt like jelly.
Cosby fondled her, the documents say. She said she did not consent and described her condition as frozen and paralyzed. She awoke in Cosby’s home at 4 a.m. the next morning. Her sweater was bunched up and her bra undone and had been moved above her breasts. She got up and walked toward the door. Cosby gave her a muffin and said, “alright” and she left, the documents say.
The court documents say that Constand was deeply affected and traumatized by what occurred.
She had nightmares and would scream in her sleep. She told her mother that Cosby had sexually assaulted her. Constand’s mother called and asked Cosby what he had given her daughter, and he allegedly said he would “have to look at the prescription bottle,” the court documents say.
He apologized, offered to pay for therapy, and admitted fondling Constand, the documents allege.