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What’s next for the Bill Cosby sex-assault case?

The Washington Post logo The Washington Post 2017-06-18 Manuel Roig-Franzia
Bill Cosby, left, and Andrea Constand. © Matt Rourke/AP; Lucas Jackson/Reuters Bill Cosby, left, and Andrea Constand.

They almost surely will meet again in a court of law.

One more time, the lanky former jock with the loose-limbed gait and the mound of curly hair is likely to sit across a courtroom from the lumbering and aging comedian who has made an elegant wooden cane his signature prop on the most dangerous stage of his storied career.

The mistrial declared Saturday morning set the scene for a courtroom rematch between Andrea Constand, a former women’s professional basketball player, and Bill Cosby, the comic legend who she says drugged and sexually assaulted her. Even though the machinations of a retrial would be handled by attorneys, the ultimate decision of the next panel of jurors will be, once again, heavily dependent on their assessment of Constand and Cosby.

As one of the jurors in the first trial said during jury selection in this case so bereft of physical evidence, the saga boils down to a matter of “he said, she said.”

It’s likely that Cosby’s defense team will try to block a new trial, but legal experts say they are unlikely to prevail. The retrial is expected to bear many similarities to the first trial, but there might be key differences that could affect the outcome.

The jury that said it was “hopelessly deadlocked” on Saturday was selected in Pittsburgh, then bused to suburban Philadelphia and sequestered during 11 days of testimony and deliberations. Defense attorneys had pushed to select a jury from another county because of intense pretrial publicity in Montgomery County, Pa., where District Attorney Kevin Steele, during his 2015 election campaign, had been critical of one of his predecessors for not prosecuting Cosby.

It’s possible the next jury could be selected in another county so as not to place too heavy of a burden on Allegheny County, where Pittsburgh is located, said Dennis McAndrews, a former Philadelphia-area prosecutor. McAndrews suggested that a jury pool could be drawn from the Harrisburg area of Dauphin County, or from the Scranton area of Lackawanna County.

The saturation coverage of Cosby’s mistrial is sure to complicate jury selection. Television satellite trucks clotted the street in front of the pre-Civil War stone courthouse in Norristown, Pa., where Cosby’s trial was held. Granular details of the evidence were splayed across newspaper front pages and websites, parsed on radio talk shows and pored over in dueling spin contests.

Still, legal experts say, it won’t be impossible to find 12 people to sit in judgment of Cosby, who turns 80 next month.

“You always find people who just don’t pay that much attention to the news or are able to set aside what they’ve heard,” said McAndrews, who successfully prosecuted John E. du Pont, the chemical fortune heir, for murder.

Steele, the lead prosecutor, tends to be cautious in his public statements. But on Saturday, moments after the mistrial was declared, he gave an inkling of his confidence level going into Round 2. He told a room full of reporters that the last time he retried a case after a mistrial — in 1992 — he won a conviction.

Steele, who is a career prosecutor, will have insights in the retrial that he did not have in the first trial: He and his key witnesses have now gotten a detailed view of the defense team’s strategy and its methods of handling cross-examinations.

“It’s obviously more difficult for the defense to find some new surprises,” McAndrews, the former prosecutor, said. “They want the element of surprise.”

Yet the fundamental potential flaw in the case will remain: Constand’s inconsistent statements to police about matters such as the date and circumstances of the alleged assault, which she says took place in 2004 at Cosby’s gated estate in tony Elkins Park, Pa.

Steele sought to tamp down the impact of those inconsistencies by enlisting a rape expert as a witness. Speaking in a calm and unemotional tone, Veronique Valliere, a psychologist, testified that sexual assault victims are frequently so traumatized that they can be confused about details. She also testified that it’s not unusual for assault victims to maintain contact with their attackers, an insight that seemed to directly rebut defense suggestions that more than 50 phone calls Constand, now 44, made to Cosby after the alleged assault were proof that she was lying about the alleged attack.

However, defense attorneys may have undercut Valliere’s testimony by suggesting she was biased by showing jurors comments she’d posted on Facebook seeming to celebrate a prosecution victory in the pretrial fight over evidence in the case.

Jurors asked for second looks at testimony from half of the prosecution’s 12 witnesses. But they did not ask to rehear Valliere’s remarks or the testimony of the other prosecution expert witness, a toxicologist who said that Benadryl — the allergy medication Cosby says he gave Constand on the night of their sexual encounter — has been used by rapists, in other cases, to make victims sleepy and unable to resist. The jurors’ decision not to ask to rehear the experts’ testimony could be an indication that they accepted their opinions at face value or, conversely, that they were unimpressed. If prosecutors conclude the latter, they might seek new or additional experts.

Some of the offstage participants also have played a role in shaping public perceptions of the case since the mistrial was declared. Cosby’s wife, Camille — who skipped all but the defense closing argument — issued a blistering statement Saturday. She accused Judge Steven T. O’Neill, who oversaw the case, of “arrogantly” siding with the prosecution.

O’Neill, an intense and folksy jurist who often strolled the hallways during six days of jury deliberations loudly whistling the theme from the television show “The Leftovers,” seemed to side with the prosecution by allowing deliberations to drag on for 52 hours. But Camille Cosby’s criticism of him was puzzling because he issued an all-important pretrial ruling that seemed to help the defense and dealt a crushing blow to prosecutors. In that decision, O’Neill blocked testimony during the trial by all but one of 13 women whom prosecutors identified as past victims and wanted to call as witnesses to establish a pattern of conduct by Cosby.

On the opposite side of drama from Camille Cosby, more than half a dozen women who have publicly asserted that they were sexually assaulted by the comedian appeared in court as spectators during the trial to support Constand. Afterward the women, who have bonded in the past 2½ years since the scandal broke and grew even closer during the trial, were upbeat.

Jewel Allison, a New York-based artist, poet and activist who has said Cosby drugged and sexually assaulted her in the 1980s, hugged Constand in the courtroom after the mistrial announcement.

“This was basically just practicing to get the ball in the basket,” Allison says she told Constand, a former star high school, college and Italian professional league basketball player. “Next time is the big game.”

On Sunday, Allison went to church back home in New York.

“As you can only imagine,” Allison said, “I’ve got a lot to praise God for.”

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