Ending in a mistrial today, 79-year-old comedian Bill Cosby walked out of a Norristown, Pa. courtroom a free man, after a 12-person jury couldn’t find a unanimous verdict after 50 hours of deliberation. Begun June 5, the trial was much awaited after some 60 women came forward with similar stories against the TV icon, claiming he drugged and sexually assaulted unconscious women over the last 40 years. Only 44-year-old former Temple University employee Andrea Constand met Pennsylvania’s statute of limitations, enabling District Attorney Kevin R. Steele to prosecute Cosby for aggravated indecent assault. Constand contended Cosby drugged her in 2004 at his Philadelphia mansion with Benadryl and sexually assaulted her when she was paralyzed and partially unconscious, a similar story given by some 60 other women Jurors had to deal with the 14-year delay.
Unable to reach a unanimous verdict required for guilt in criminal trials beyond-a-reasonable-doubt, the jury performed its duty. “I remind everyone that this is not vindication or victory,” said Montgomery County Judge Steven T. O’Neill. “A mistrial is merely the justice system at work,” setting up a possible retrial, if Steele decides to retry the case. While the Constitution prohibits double-jeopardy, being tried twice for the same crime, that’s essentially what Steele plans to do. “Justice is alive in Montgomery County,” said Cosby’s attorney Brian McMonagle,. “We wanted an acquittal, but like the Rolling Stones’ song says, you can’t always get what you want, sometimes you get what you need,” accepting the deadlocked jury as proof that he made his case to at least one or two jurors. Constand’s attorney Bebe Kivitz said, “we are ready” for retrial should Steele decide on round two.
Constand reported her sexual assault to the police in 2005, filing a civil suit against Cosby after the DA refused to pursue criminal charges. Cosby contended at the time that whatever happened between he and Constand, it was a consensual romantic relationship. In a deposition in the civil trial, Cosby admitted to giving Constand the over-the-counter antihistamine Benadryl to help her relax before the two engaged in a sexual encounter. Over seven hours of testimony, Constand couldn’t square her 2005 police report when questioned by Cosby’s attorney. She told the police she had never been alone with Cosby before the 2004 encounter at Cosby’s home where she claimed she was drugged and raped. When she admitted under cross-examination that she recalls going to Cosby’s hotel room, it provide enough inconsistency for at least one or two jurors to deadlock.
Before Steele wastes more Pennsylvania taxpayer money, a jury of Cosby’s peers deadlocked based the DA’s best case, including Constand’s own testimony. Hoping to get more sympathetic jurors, the opposite could happen, since only two of the 12 jurors were African American. Cosby could very well get a more sympathetic jury with the outcome of outright acquittal. Constand’s testimony didn’t add up to all jurors. “In my head I was trying to get my hands to move or my legs to move, but I was frozen and those [mental messages] didn’t get there and I was very limp, so I wasn’t able to fight him,” Constand told jurors. “I wanted to stop him,” making little sense that over-the-counter Benadryl could cause such sedation. Cosby admitted under deposition he sometimes gave women Quaaludes, a more power sedative hypnotic drug, before consensual sexual encounters.
If Constand reported accurately her physical condition, it’s doubtful Cosby gave her Benadryl, probably something more powerful. Whatever the merits of Constand’s testimony, jurors also knew that the DA in 2005 found insufficient evidence to pursue a criminal case against Cosby. With numerous women coming forward with similar stories, some nearly 40 years ago, Steele felt compelled to take Constand’s case, something he promised during his 2015 election campaign. Whether or not numerous women came forward with similar stories, it doesn’t change Constand’s testimony, exposing inconsistencies to jurors. Constand found out at trial the difference between making allegations and submitting to cross-examination. When it comes to sexual encounters between consenting adults, it’s difficult to convince 12 jurors that a romantic
encounter was sexual assault.
Whatever happened between Cosby and Constand in 2004, Philadelphia DA Kevin R. Steele couldn’t convince 12 jurors that Cosby was guilty of sexual assault. Expecting to get a different result if Steele decides to retry is unrealistic but, more importantly, to place Cosby essentially into double-jeopardy, when the jury spoke today. Watching the Judge O’Neill declare a mistrial today shouldn’t compel Steele to retry the case when the outcome isn’t likely to change. Proving beyond a reasonable doubt that a 14-year-old case could be reconstructed to convince 12 jurors about sexual assault, shows the problem prosecuting these cases. Cosby plead not guilty to sexual assault because he claimed his encounter was consensual. Constand gave her best testimony but couldn’t convince 12 jurors that Cosby should go to jail for sexual assault. Retrying the case won’t change the outcome.
