Why Couldn’t the Cosby Jury Reach a Verdict? Legal Experts Assess

The New York Times asked some top criminal law experts who have been monitoring the case to provide their assessments of the trial. Here are their analyses.

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Alan J. Tauber

Philadelphia defense lawyer and former public defender

“Some jurors were no doubt moved by Ms. Constand’s contradictory statements to police during the initial investigation. She denied having been alone with Mr. Cosby before the alleged assault; she denied having contacted him afterward; and stated that the assault occurred in March of 2004. All demonstrably false.

That, together with the summation of Brian McMonagle, one of the best closers in the business, was too much to get 12 people to agree. It would not surprise me to see Steele [Kevin R. Steele, the prosecutor] retry this case, since he made it a campaign issue when he ran for office.”

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Kevin Harden Jr.

Former Philadelphia prosecutor and criminal defense lawyer

“The jury’s repeated questions about prior statements and reports to police suggests that some were primarily concerned with Constand’s credibility. It also demonstrates the importance of the Court’s pretrial decisions about the testimony of other Cosby accusers. By limiting evidence of other accusers, the Court focused the jury on whether the prosecution presented enough credible evidence to convict Cosby of this particular assault. The pretrial decision that limited the testimony of other Cosby’s accusers is probably the reason the case ended in a mistrial. It would be reasonable, based on the evidence presented, for the jurors to agree that Cosby is a sexual predator and still disagree on a verdict as to the assault of Constand.”

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Michelle Madden Dempsey

Law professor at Villanova University

“The prosecution of Bill Cosby for the aggravated indecent assault of Andrea Constand was widely viewed as a ‘tough case’ — and no doubt the retrial will be tough as well — but as District Attorney Kevin Steele rightly observed in his comments following the mistrial, prosecutors ‘should take on the tough cases. It’s the right thing to do.’

As social norms around drug-assisted sexual assault begin to shift, prosecutions like the one of Bill Cosby go a long way toward raising awareness, supporting victims, and holding predators accountable. Now, if only all prosecutors would try the ‘tough cases’ of drug-assisted sexual assault, we would finally end impunity for these sexual predators.”

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Barbara Ashcroft

Associate professor at the Temple University Beasley School of Law and a former prosecutor in the Montgomery County district attorney’s office

“I am a bit befuddled that the jury deliberated for six days wherein jurors are simply determining the credibility of two people. No forensics, no toxicology, and no physical evidence for the jury to examine, analyze or argue over. Yet the jury was deliberating longer than it took for both the prosecution and defense combined to try this case. What this means is, jurors are ‘fighting’ over who to believe and who to trust as they methodically examine and in this case “re-examine” the testimony.

This has been a classic sexual assault case of ‘he says, she says.’”

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Joseph McGettigan

Former prosecutor who led the prosecution of Jerry Sandusky, the former Penn State assistant football coach convicted of sexually abusing boys

“By the second day of deliberations, a hung jury had started to appear to be a real possibility, at least to me. The questions certainly gave the appearance of there being an effort to persuade a faction of the jury, perhaps just one juror, of the weight of the evidence. The ‘reasonable doubt’ question is the clearest example of that. That request from the jury is usually the result of one holdout for acquittal saying to the others that ‘I think he’s guilty, but I’m just not sure they proved it beyond a reasonable doubt.’

Certainly there are factors extraneous to the evidence upon which a holdout could covertly fix — age of the defendant, race, celebrity and a generalized iconic status could all be among those factors. Of course, there were difficulties in the prosecution evidence — inconsistencies in the victim’s testimony, her delayed reporting and her continued contact with the defendant. But I think that discussions with the jurors, if they occur, will reveal that most of the jury had overcome those impediments to conviction by finding the victim credible on the witness stand. Obviously not so for one or more of the jurors.”

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