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Bill Cosby Trial: What to Watch for Next

Variety logo Variety 6/15/2017 Ted Johnson
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After the jurors in the Bill Cosby sexual assault trial informed the judge that they were deadlocked, and the judge sent them back for more deliberation, the entertainer’s spokesman Andrew Wyatt declared it a win.

“Today we have really seen Mr. Cosby get the justice he was looking for,” he told reporters.

But the case is not over, even if the jury deadlock is a signal of sharp disagreement over Cosby’s guilt or innocence. He is facing three aggravated indecent assault charges involving accuser Andrea Constand. If convicted, he could be sentenced up to 10 years on each count.

Judge Steven O’Neill denied a defense request for a mistrial, saying that it was “inappropriate at this time.”

So what happens next? Here’s a guide to the possible scenarios:

Deadlock. It’s tricky to guess how much more time the jury will give itself before folding. It is not unheard of for a jury to go back to deliberating and reach a verdict. They could also deadlock on one or more of the counts and not on the others, although they did not indicate that they had reached a verdict on any of the counts on Thursday.

“I don’t think the fact that they announced a deadlock can give us any idea of what is going to happen,” said Steven Fairlie, a criminal defense attorney in Pennsylvania who has been tracking the case. He said that the Cosby spokesman’s suggestion that this was a victory is mere “spin.”

But he said that the word of the deadlock suggests a degree of tension in the jury room.

He noted that judges instruct jurors to return to deliberations with the phrasing, “as long as it’s not going to do violence to their conscience or their individual opinions.” That’s a sign of just how contentious they can get.

“We don’t know how much longer the jury will deliberate,” Fairlie said. “I think when a block of jurors say, ‘I will never change my mind,’ you know it is done.” That would mean that they are “hopelessly deadlocked.”

So if that happens, then it would be a mistrial. That hasn’t happened yet.

Priya Sopori, partner at Greenberg Glusker, doubts that the jury will come to a verdict.

“In my experience, sending them back to deliberate will not do any good,” she says, adding that she predicts that there will be a hung jury.

She noted that one of the questions that the jury had was about the third count, alleging that Cosby gave Constand a drug without her knowledge “for the purpose of preventing resistance.” The jury asked for the definition of “without her knowledge.” He declined to elaborate.

“They are probably grappling with serious issues of consent in the taking of the drugs, and the understanding that the drugs would lead to a romantic interlude,” Sopori said.

Mistrial. A hung jury almost always means that the judge declares a mistrial.

“A mistrial costs us all,” Fairlie said. “It is an ungodly amount of money for the taxpayers.”

It’s unclear just how much the Cosby case has cost so far, but the trial is especially expensive because it was moved to the suburbs of Philadelphia from Montgomery County, and the jurors were sequestered, among other factors. Cosby is also bearing huge expenses, but he appears to have the resources to bear them.

It’s not much of a surprise that the judge would send the jurors back after the first time they declared their deadlock. The judge could send them back to deliberate multiple times, even for days, before ultimately throwing in the towel and declaring a mistrial.

Cosby’s team already is talking as if such a scenario would be a victory.

Fairlie said that he did not think that the defense cross-examination of Constand went all that well, so “a mistrial gives you a second bite at the apple.” The defense called just one witness, with six minutes of testimony, so they could have the advantage in a second trial of knowing the prosecution’s case.

New trial. Montgomery County District Attorney Kevin Steele will have to decide whether to pursue a new trial.

Sopori noted that Steele ran on the possibility of prosecuting Cosby during his 2015 election campaign, so there is some expectation that he would pursue another trial should the judge declare a mistrial.

She does see some advantages for the prosecution in this scenario, as “the government can prepare witnesses knowing the manner in which they will be cross-examined.”

Another factor is how the jury breaks down in a deadlock. If it is a 6-6 split, “that is an indication to the prosecution that maybe you don’t need to try this case again,” Fairlie said, although he doesn’t expect that Steele would do so given what he said during his 2015 campaign.

Verdict. Of course, the jury could reach a verdict on one or more of the counts. If found guilty on all, Cosby would likely appeal. If not guilty on all, the criminal case is over. Cosby still faces a raft of civil litigation.

Even if there is a deadlock, Sopori said that the trial will have focused public attention on the issue of consent.

“I believe that the issue of legal consent has been around for a long time, but we are finally catching up to what that translates to in a real life,” she said.

Related slideshow: Cosby's rise and fall (via Photo Services) Bill Cosby: From icon to accused

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