Bill Cosby judge declares mistrial; prosecutor vows to retry case

NORRISTOWN, Pa — The jury in Bill Cosby’s sexual assault trial here declared itself still hopelessly deadlocked on Saturday and Judge Steven O'Neill declared a mistrial.

O'Neill polled each of the 12 jurors whether they believe “there is a hopeless deadlock, which cannot be resolved by further deliberations?” Each juror stood and answered yes.

Cosby lead defense attorney Brian McMonagle then motioned for a mistrial, which O’Neill promptly granted.

District Attorney Kevin Steele told the judge he intends to retry the case.O'Neill released Cosby on the same conditions of his $1 million bond posted in December 2015.

“I will release you on that same bail to await the decision of the Commonwealth,” the judge said.

A mistrial, O’Neill said, is not a vindication for either party. After 52 hours of deliberations, O’Neill continued, the jury's work is “probably one of the more courageous acts, selfless acts that I’ve seen in justice.”

It was an unsatisfactory end to a 10-day trial that turned  "America's Dad" into an accused sex offender.

It was not immediately known what the vote was, but it was clear the prosecution failed to prove its case beyond a reasonable doubt in the view of at least one juror.

In the courtroom, neither Cosby nor accuser Andrea Constand, who was present, showed much emotion. After court was dismissed, Constand stood, a smile on her face, and hugged those around her.

Judge O'Neill dismissed the jury of seven men and five women and sent them home to Pittsburgh where they had been selected and then sequestered 300 miles away here in Montgomery County in suburban Philadelphia where Cosby has a home.

“We have been at this for over 18 months,” O’Neill said. “To everybody here who has done it on this county system, I thank you ... With that, I bid you a farewell for this case and a happy Fathers day for all the fathers who are out there,” he said.

Trial watchers saw mistrial coming

The result Saturday was not entirely a surprise. The jury announced it was deadlocked on all three counts on Thursday before lunch but Judge O'Neill sent them back to try again after first denying the Cosby defense team's motion for a mistrial. He did the same thing again Friday morning.

The jury deliberated a total of about 52 hours over about five days after a trial that moved at a brisk pace for the first six days. The jury got the case on Monday evening.

The trial followed more than two years of lurid headlines over a 13-year-old alleged sexual assault and a pile-up of accusations from dozens of women that Cosby, the beloved comedian once known as “America’s Dad,” was a serial rapist who drugged and/or assaulted them in episodes dating back to the mid-1960s.

But Cosby was tried here in suburban Philadelphia, beginning June 5, on the accusations of only one accuser, Andrea Constand. He was charged with three counts of aggravated indecent sexual assault stemming from an encounter with Constand at his home nearby in 2004.

Constand, 44, testified, for the first time in public, that Cosby drugged and molested her as she lay helpless on his couch. His defense lawyers said Cosby and Constand were lovers, he gave her only an over-the-counter anti-histamine, and their encounter was consensual.

Cosby chose not to testify on the witness stand and his legal team put on a defense case that lasted little more than five minutes, calling only one witness, thus cutting the courtroom part of the trial short. It was a move designed to telegraph to the jury that a defense was unnecessary because the prosecution had failed to prove its charges beyond a reasonable doubt.

But it was a message that members of the jury apparently didn’t buy; they could not agree on conviction or acquittal.

Camille Cosby calls out prosecutor, judge

Cosby, 79, frail and nearly blind, faced spending the rest of his life in prison if convicted. His wife of 53 years, Camille, who accompanied him to court Monday for the first time since the trial began, was not in the courtroom. But she issued a statement later lambasting Steele, the judge, the lawyers for accusers and the media as heinous, vicious, arrogant, unethical and greedy. She effusively thanked Cosby's defense team and her friends and family.

"Historically, people have challenged injustices. I am grateful to any of the jurors who tenaciously fought to review the
evidence; which is the rightful way to make a sound decision," her statement said. "ultimately, that is a manifestation of justice, based on facts, not lies. As a very special friend once stated, 'truth can be subdued, but not destroyed.'"

Day 6, the final day of the courtroom part of the trial, was taken up with closing arguments, ranging from the noisy dramatics of lead defense attorney Brian McMonagle (who repeatedly slammed his hand on the defense table, and exclaimed "This ain't right!" at one point), to the businesslike summation by Steele.

Defense attorney: We’re talking about all of the man’s tomorrows

McMonagle, who swung from dramatic stage whispers to shouts in his closing argument, insisting that Cosby and Constand had a “romantic” relationship and that their sexual encounter was consensual. He said Cosby had been unfaithful to his wife but he didn't commit a crime.

He called Constand a liar and said inconsistencies in her statements to police should cause reasonable doubt.  “Ms. Constand was untruthful time and time and time again,” he said. If you have “more questions than you’ve got answers,” he told the jurors, “that’s reasonable doubt.”

He said Cosby was prosecuted because of worldwide headlines about the accusations against him, and because graphic excerpts from his deposition in Constand's civil suit became public. He repeated to jurors that Cosby’s life was in their hands. “This isn’t a civil case about money, money, money,” he said. “We’re talking about all of the man’s tomorrows.”

How we got here

Steele told jurors the case was straightforward, resting on three pillars: One, that Cosby drugged Constand. Two, that she was “legally” unconscious. Three, she was unable to consent to sex. "All of the fancy lawyering … can’t get you around (Cosby’s) own words,” Steele said.

True, Steele acknowledged to the jury, certain details of Constand’s past statements has been incorrect or “fuzzy.”

“Why? Because, he drugged her,” he said.

Steele also reminded jurors about a phone conversation after the encounter during which Cosby apologized to Constand and to her mother and described himself as a "sick man."

Even before the mistrial was declared, Cosby’s heroic status as a pioneering and influential African-American comedian and actor had been indelibly stained by the allegations from five-dozen women who accused him of drugging and/or sexually assaulting them in episodes dating back to the mid-1960s.

Constand’s accusation is the only one to reach a criminal court because all the other allegations were too old to prosecute except in Pennsylvania, with an unusually long statute of limitations for alleged sex offenses.

Constand’s case had a long and complicated history: Her encounter with Cosby happened in January 2004, about two years after he became a friend and mentor to the Canadian-born Constand. She filed a complaint with authorities a year later.

The then-district attorney, Bruce Castor, decided not to pursue charges because of the lapse of time and the lack of evidence. So Constand sued Cosby in civil court in 2005 and in 2006 the case was settled for an undisclosed sum and sealed, including a lengthy deposition Cosby gave for the lawsuit.

Fast forward to October 2014, when video of comedian Hannibal Burress calling out Cosby as an accused rapist in his standup act went viral. Soon, scores of women began going public, accusing Cosby of being a serial rapist.

In July 2015, the Associated Press petitioned a judge to unseal the civil deposition in which Cosby made damaging admissions, including that he acquired drugs — Quaaludes — to give to women he sought for sex, and that he repeatedly had sexual affairs with young women he met throughout his career as a Hollywood icon.

His own words from that deposition were used against him in court by Steele.

By November 2015, the Cosby-Constand case was drawn into the local political race for Montgomery County district attorney in suburban Philadelphia: Steele was elected after promising to pursue Cosby using the unsealed deposition as new evidence for reopening the long-abandoned case.

In December 2015, Steele filed the charges just weeks before the statute of limitations would expire. Cosby was arrested, posted $1 million bond, and was released.

After numerous pre-trial hearings before O’Neill, most of which Cosby lost, trial was set for June 5.

The star witness was Constand, who stuck to her story and remained calm in the face of tough cross-examination about inconsistencies in and questions about her account.

O'Neill had allowed Steele and the prosecution team to call only one other accuser (he sought to call a total of 13) to testify at the trial. Kelly Johnson, who once worked for Cosby’s agent, testified that he drugged and assaulted her in a Los Angeles hotel bungalow in 1996. Defense attorneys pointed to inconsistencies about the date in her story.

Steele also used Cosby’s words against him at the trial, reading excerpts from a 2005 police interview about his encounter with Constand, in addition to the deposition.

The trial was supposed to last two weeks, lawyers in the case predicted. It went much more quickly; it was the jury deliberation part of the trial that took more time than anticipated.

© 2017 USA TODAY


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