“We spent all our time trying to figure out the wording,” said one of the jurors, who agreed to speak on the condition of anonymity to protect his privacy. “It all came down to the wording.”
Much is unclear about what happened in the jury room during the Cosby case, which ended with a hung jury and a mistrial. But two jurors who spoke to The New York Times said a great deal of their time was spent parsing — and disagreeing about — the meaning of words and phrases like “unconscious,” “reasonable doubt” and “without her knowledge.”
“There were other issues, but it was definitely prevalent,” said Bobby Dugan, one of the jurors.
Experts say wording disputes within juries are not rare — that one of the trickiest tasks for jurors is matching the visceral intensity of some testimony with the bloodless language of the law.
“They are tricky concepts and in very abstract terms, and that is one of the difficulties that jurors often have with jury instructions, especially in trying to make that jump from the technical abstract language,” said Paula L. Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts. Several studies have documented that jurors can have a hard time grasping the language of the so-called jury “charge,” the instructions that judges give to panels before deliberations begin.
Now, as prosecutors prepare to retry Mr. Cosby, experts said they would have to consider not only how well Ms. Constand gave her account, but also whether their own words to the new jurors could avoid the confusion that seems to have plagued at least some of the old.
“Hopefully, the second time around, they can figure out a better way of connecting the dots for the jury,” said Deborah Tuerkheimer, a professor of law at Northwestern University and a former prosecutor. She said that while the jurors might have found Ms. Constand credible, ”they couldn’t match up what she was telling them with the precise language.”
Reports from jurors have differed, with some saying that the panel of 12 had been totally split, and another suggesting that Mr. Cosby narrowly escaped conviction because of two holdouts who could not be persuaded of his guilt. Mr. Dugan said he would only discuss his own deliberations, and that he had voted to convict Mr. Cosby of two counts of sexual assault but not a third, which accused Mr. Cosby of penetrating Ms. Constand while she was “unconscious.”
Mr. Cosby has admitted the penetration but says that Ms. Constand was awake and consenting.
Ms. Constand testified to slipping in and out of consciousness after digesting three pills given to her by Mr. Cosby. She said she was jolted awake after the penetration occurred, was aware of Mr. Cosby’s fingers moving inside her, but still felt “frozen” and could not stop him. The jury charge included an explanation that, to find Mr. Cosby guilty, the jury would not have to agree that Ms. Constand was continuously unconscious but that she was at all times too impaired to be able to consent.
“She was saying she does not remember when she passed out,” Mr. Dugan said, “but she does remember waking up to Mr. Cosby sexually assaulting her, then she went back to sleep. I didn’t think if you have such a shock to your system that you would fall right back to sleep.” So she could not have been unconscious, he said.
Barbara Ashcroft, a former prosecutor who teaches at the Temple University Beasley School of Law, said the jurors “had an image of someone unconscious on a hospital bed, but unconscious in legal terms can mean being unable to give consent.”
Similarly, the jurors puzzled over a phrase in another of the criminal counts, which accused Mr. Cosby of providing Ms. Constand with impairing drugs “without her knowledge.”
Ms. Constand said she had knowingly taken the pills, though she and prosecutors argued that Mr. Cosby lied about what they were — suggesting that they were herbal supplements, when in fact, the prosecutors said, they were some kind of impairing sedative. (Mr. Cosby said that he did not tell Ms. Constand what they were and later testified that they were Benadryl.)
At one point during deliberations, the jurors asked Judge O’Neill to clarify what the phrase “without her knowledge” meant, but he said he could not.
Experts said that while judges had some responsibility to clarify the law for jurors at the time of instruction, too much interpretation of language after that could be seen as interference or coaching from the bench.
“The jurors are the ones who have to somehow interpret these unfamiliar terms and apply them to the facts of the case,” said Valerie Hans, a professor at Cornell Law School who has studied and written about juror behavior.
During his two-hour closing argument, the Montgomery County district attorney, Kevin R. Steele, worked to make plain the links between the testimony and the language of the law. He checked off that Mr. Cosby said that he never told Ms. Constand what the pills he gave her were. He described her rubbery legs and blurred vision, which he said would suggest that she was substantially impaired. And he said that the law did not require Ms. Constand to be literally unconscious during the entire encounter, just to lack knowledge or awareness of an assault during portions of it.
At a news conference after the mistrial was declared, Mr. Steele said his office would review the way it presented the case as part of its preparations for the retrial.
Kate Delano, a spokeswoman for the district attorney’s office, said that last year the office handled 99 sex crimes cases, and successfully prosecuted more than 90 percent of them. “Clearly, jurors in those cases understood the charges and the language related to the law,” she said.
Jennifer Storm, Pennsylvania’s victim advocate, said that in her experience, jurors cited confusion over language more often in sexual assault cases.
Such encounters are rarely witnessed by other people, she said, and jurors can have widely varied predispositions about what sort of a person is likely to be credible and what sort of behavior constitutes consent. Pressed to decide, jurors uncomfortable in voting to convict might seize upon a language issue to explain their reluctance, she said.
“They can conveniently use it as a scapegoat for their own preconceived notions,” Ms. Storm said.
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