After five days of deliberation, the Pennslyvania jury tasked with deciding whether Bill Cosby is guilty of sexually assaulting ex-Temple University employee Andrea Constand in 2004 announced today it was “hopelessly deadlocked” and could not reach a verdict. Following Montgomery County Judge Steven T. O’Neill’s decision to decare a mistrial (and prosecutors’ vow to retry Cosby), The Hollywood Reporter convened its trio of legal experts to debate the result and the next steps. Editorial director Matthew Belloni, who once practiced entertainment law, exchanged emails with senior editor Eriq Gardner, who writes and edits the publication’s legal blog THR, Esq. with staff reporter Ashley Cullins. An edited version of their exchange, in which they explore what led to this outcome and what might change if prosecutors follow through on their promise to re-try the case, is below….
GARDNER Are either of you surprised? Can’t say I am. It’s always nearly impossible to predict what a dozen jurors are going to decide. I thought it was a bit odd that in the survey we took a couple months ago of top entertainment lawyers, about 80 percent thought Cosby would be convicted. Take away the dozens of other accusers, focus just on the two stories of alleged assault that were allowed to be discussed in court (Constad and a former William Morris assistant who testified as “prior bad act” evidence), and what we’re dealing with is a jury discussion of credibility and consent. Interviews with the jurors about what happened during deliberations are going to be fascinating. I also see that the DA plans to re-try the case. I have doubts whether this will happen. What do you think?
BELLONI They can’t NOT retry him, I don’t think. There would be considerable outrage. I’m actually more surprised than you at the mistrial. Even though jurors are instructed to consider only the evidence presented, they must have been aware of the volume of accusations against Cosby. They were everywhere.
GARDNER I think this is the type of case that’s very hard for prosecutors. The best evidence for this is the fact that the prior DA in Montgomery County chose not to charge Cosby. When a case comes down to a measure of credibility (or definitions of consent, as a very good column the other day in Above the Law put it), there’s the strong potential for non-consensus of judgment. Sure, the jurors may have known about the other allegations against Cosby, but perhaps they DID obey the judge’s instructions. I was taken by the fact that of all the things the jurors asked to review during their days of deliberation, they never wanted to hear again the testimony of Kelly Johnson, the former William Morris staffer whose allegations were allowed into evidence. Will the outcome really be different if this is tried again? Doesn’t a mistrial allow the prosecutor to save face by saying he gave it a good shot? How much money do you think it costs taxpayers to go to trial against Cosby? I’m sure no one cares, but the mistrial does also potentially avoid what would have been a rather exhaustive (if interesting) appeal.
CULLINS If they do re-try it, do you think Cosby’s team would change tactics at all? I was pretty shocked that they presented their case in principle in less than ten minutes — seemed like they thought they had an acquittal in the bag.
GARDNER I think what Cosby’s team does depends a little on what prosecutors do. Here’s an interesting thought: What if prosecutors change tactics? Let’s say, instead of going straight to a re-trial, prosecutors attempt to appeal the judge’s decision not to allow more Cosby rape accusers to testify. Perhaps if prosecutors were allowed to have 13 women testify, as they originally wanted, they would have won the case. As for Cosby’s legal team, I think they are perfectly pleased by the hung jury outcome. Maybe not quite as great in their eyes as an acquittal, but the ultimate goal has to be to keep their client out of jail.
BELLONI Right. He’s 79 and not in good health. Every day avoiding a verdict is a good one. Eriq, you wrote a great piece before the trial outlining the defense strategy. What do you think was effective?
GARDNER The Cosby team talked a big game about rehabilitating his image, but, from a legal perspective, I honestly believe that the biggest thing they did was to limit the number of other accusers allowed to testify. The most important event at trial didn’t actually happen at trial. It occurred in February when the judge excluded so much evidence. Although that moment where Cosby rested the defense case after just a few minutes of testimony was certainly incredible — the kind where you think, “Wow, it doesn’t just happen on TV!”
BELLONI Yeah, when I saw that, I thought “Those lawyers must be really really confident or thinking they’re totally screwed.” Gloria Allred is blaming the “blinding power of celebrity” for the mistrial. How much do you think Cosby’s fame played a role?
GARDNER Celebrity definitely played some factor, although not fully in Cosby’s favor. For instance, it’s quite unusual for a prosecutor to file sexual assault charges 12 years after a police investigation. Were it not for Cosby’s fame — or infamy after all the accusers came forward — that would never have happened. On the other hand, of course he (like most celebrities) had better resources to defend allegations against him, and it certainly may be true that some segment of the population still thinks of him as Dr. Cliff Huxtable. What do you two think?
BELLONI I still believe celebrities get the benefit of the doubt from juries, which in a case like this could have been enough for the mistrial. It’s just a question of how much of the media coverage of the accusations made it to these jurors. By the time of this trial, Cosby wasn’t like most celebrities. Because of the volume of claims, he’d become a pariah.
CULLINS I agree. I’d argue that Cosby’s celebrity would have weighed heavily in his favor if this had been tried a decade ago. But prosecutors had the advantage of years of people dragging the comedian and his reputation through the mud as a seemingly endless line of women came forward accusing him of varying levels of assault. The statute of limitations exists for a reason; memories fade, evidence is lost, and I think if Cosby hadn’t become a pariah the prosecution would have faced a much higher bar in trying to prove its case beyond a reasonable doubt.
GARDNER Do you think it’s fair that Cosby faced a criminal trial from only one woman? I suppose that’s a question about the wisdom of the statute of limitations. The traditional argument for having such a time rule is preservation of memories and evidence. Though I wonder whether a better argument is to encourage victims to come forward sooner rather than later so as to get serial rapists off the street. Then again, statute of limitations didn’t result in any prosecution against Cosby until this month.
BELLONI I’m sure there are plenty of accusers who believe they should have their day in court too. But regardless of the criminal outcome, civil cases eventually will move forward. Cosby isn’t vindicated in any way here, despite his publicist claiming his “power is back.”
CULLINS One of the interesting things about the impact of this trial on the civil matters is the Cosbys’ recent openness to the media. He wished people Happy Father’s Day outside of court, as one example. His wife issued a long, angry statement in response to the mistrial, as another. Until the trial, they had both been virtually silent. It almost seems as if there was a concerted effort to remind people that, despite being famous and the allegations at hand, they’re real people with a real family. It will be interesting to see if this change in publicity tactic carries over to the civil cases.
GARDNER Let’s remember that unlike in the criminal trial, he’ll be forced to testify in the civil cases. In fact, this could be a good reason for prosecutors not to re-try him because as long as they do, the civil cases are paused. And Cosby isn’t getting any younger.
CULLINS How much will Andrea Constand’s wishes play into the prosecution’s decisions moving forward? If she says “I had my day in court. Let the other women who are suing have a shot,” would they listen?
GARDNER I bet prosecutors would follow Constand’s wishes. They might even be secretly relieved if she asked not to try him again.
BELLONI I’m betting they asked her before they announced today they would retry him. So this thing is far from over.