The man once known as “America’s Dad” has experienced a long, public fall from grace in the wake of explosive sexual assault allegations that span decades—but as a Pennsylvania jury declared themselves unable to come to a verdict, it remains to be seen if Bill Cosby will ever be punished by a court of law.
Here is a brief explainer to help you understand, from a legal perspective, why the Cosby trial ended without a verdict and what is likely to happen next.
What is a mistrial?
To put it plainly, a mistrial occurs when the judge throws out the case before a jury reaches a verdict. There are several reasons why a judge would declare a mistrial, including attorney and/or jury misconduct, prejudicial error in favor of one party over another or failure to reach a verdict.
In the instance of The Commonwealth v William H. Cosby, Jr., the judge declared a mistrial after the jury of seven men and five women failed, after 52 hours of deliberation over five days, to unanimously reach a verdict on any of the three counts of aggravated indecent assault against the alleged victim, Andrea Constand.
The 79-year-old former sitcom star faced allegations that he drugged and sexually assaulted Constand in 2004.
In a criminal trial, each and every juror must reach the same conclusion, and must do so beyond a reasonable doubt. Reasonable doubt is the highest standard of proof in the legal system (as you are voting to take away the defendant’s liberty) and is to be reached by a juror knowing with nearly-absolute certainty that the defendant is guilty of the crime charged. If there is a shred of doubt, the juror must vote “not guilty.”
In a civil case, the burden of proof is lower—the standard there is “beyond a preponderance of the evidence,” which is akin to “more likely than not” that the defendant is guilty as charged. Also, civil trials don’t require a unanimous decision of the jury, so it is easier for the jury to reach a verdict.
In many instances, as in the Cosby trial, if the jurors report to the judge that they are hopelessly deadlocked, the judge will send the jurors back into deliberations and instruct them to try again. The jurors deliberated for another 18 hours and again came back deadlocked, forcing the judge to declare a mistrial.
It is important to underscore that while Cosby was not found guilty, he was NOT acquitted of the charges against him.
Why weren’t the jurors able to reach a verdict?
The prosecuting attorney, Kevin Steele failed to prove the state’s case that Cosby was guilty beyond a reasonable doubt. In a criminal case, because the burden of proof is so high, it is often difficult for a jury to unanimously agree on a decision. If there is even one juror holding out, the jury is considered deadlocked.
This particular case stems from a sexual encounter that happened in January 2004, almost 13 years ago, and Ms. Constand did not report the incident until nearly a year later. In instances where there is such a long lag in time, it is often more difficult to convict, as memories prove to be unreliable and forensic evidence is no longer available or is compromised.
There were other issues in the case that proved too difficult for the prosecution to overcome. Ms. Constand’s story was inconsistent in many parts regarding time and date. Constand continued to maintain contact with Cosby, having over 72 calls with him after the incident, even bringing him a sweater as a gift when he invited her and her family to a comedy show.
In instances of sexual assault where it often comes down to “he said vs. she said,” it all boils down to credibility: Who does the jury believe? Was the jury willing to believe that Ms. Constand was coerced to take drugs or did she knowingly take them and then had a consensual sexual encounter with Cosby? He claims it was consensual, she claims it was not. “I didn’t hear her say anything. And so I continue…I go inside her pants. She touches me, “ Cosby said in his deposition. The fact that she stayed for a breakfast of blueberry muffins and tea, and sit and talk afterwards may have dissuaded the jurors’ ability to reconcile Cosby’s actions and her reaction with an unwanted sexual encounter.
In such instances it is often difficult for a jury to resolve the inconsistencies. In Constand’s situation, lag time in reporting the alleged assault, and continued contact with Cosby may not add up for some jurors, especially the male jurors who may have been personally faced with a similar situation trying to determine consent in their own minds. Add celebrity to the mix, and that makes it more difficult for a juror to decide whether Constand is a jilted ex-lover trying to exact monetary revenge (she did receive an educational fund set up by Cosby and a settlement in the civil case) or is she simply a shaken victim trying her best to maneuver her way around the legal system?
In the Cosby trial during deliberations, the jurors asked the judge 12 key questions. In these cases, the jury is looking for clarity. The jury asked for, among other things, the definitions of “reasonable doubt” and “informed consent,” and for the court to reread transcripts from several parties, which indicates that they were trying in earnest to reconcile inconsistencies, but in the end, they failed to do so.
What happens next?
The prosecutor immediately stated in a post-trial press conference that he would seek a retrial “as soon as possible.” What is immediately clear is that he has some retooling to do. Perhaps Steele will be able to establish a pattern of Cosby sexually abusing his victims while drugged, where in this trial, he was not. The prosecution was limited to bringing in only one witness who could testify that Cosby allegedly drugged her, making it tough to establish a pattern of behavior. In the next trial, if the prosecution is successful in petitioning the judge to allow more of Cosby’s alleged victims to testify, that may change the outcome.
In the coming days, Steele is going to be looking at the breakdown of the jury votes in order to determine how to proceed. If the votes were evenly split, this indicates that many of the jury found her story difficult to believe, making a conviction in a retrial an uphill battle.
Considering the number of accusers, why hasn’t Cosby been on trial for more of his alleged crimes?
Simply put, the statute of limitations has run out these accusers’ claims. In most states, the statute of limitations on such claims is 10 years. Pennsylvania’s statute of limitations is 13 years, and the state brought this case in literally days before the statue of limitations was set to expire.
Does the inability to convict Cosby suggest that he is innocent?
No. It simply means that the prosecution failed to meet the burden of proof beyond a reasonable doubt.
It is important to note that in any case (civil or criminal), the defendant doesn’t have to disprove any of the prosecutor’s claims, as the burden of proof rests squarely on the shoulders of the aggrieved party to prove that their claim is true. The defense can put on as much or as little of a defense as they desire. In Cosby’s case, his lawyer wrapped up his defense in five minutes, without putting Cosby on the stand, which is not unusual. The logic: there is no need for the defense to open up the defendant to cross examination since the burden of proof rests with the prosecution, not the defense to disprove any allegations.
Will Cosby ever serve time behind bars?
In my opinion, it is unlikely. All of the 60 alleged victims’ statues of limitations have expired, making Constand’s the only viable case—which means there is a lot riding on the outcome. Everyone from the accusers, to victims’ rights groups were hanging their hopes of vindication and justice on this verdict.
It all comes down to the retrial and only time will tell.
Lisa Bonner is a veteran attorney and journalist.