By Manuel Roig-Franzia
NORRISTOWN, Pa. – A Pennsylvania judge declared a mistrial Saturday after a jury was “hopelessly deadlocked” on sexual-assault charges against Bill Cosby, the comic legend whose legacy as a promoter of wholesome values has been tarnished by a years-long sex and drugging scandal.
As the mistrial was declared, Cosby sat at the defense table with his chin held high, a flat, blank look on his face. Across the well of the courtroom, jurors stood one-by-one in the jury box and said, “Yes,” as the judge asked each whether they agreed that the jury is “hopelessly deadlocked.” The jurors answered without hesitation, but several slumped forward in their chairs, elbows on their knees and fingers knit, looks of frustration on their faces.
After the questioning was done, the entertainer sat back in his chair, holding a slender cane that has been with him inside the courtroom each day to his chest. Cosby’s family was not in the courtroom to hear the judge’s decision. After the jury filed out, prosecutor Kevin Steele announced in court that he will retry Cosby.
The jurors, who had complained of exhaustion, deliberated 52 hours before finally saying they could not reach a verdict on three counts of aggravated indecent assault against the 79-year-old entertainer. But the hung jury does not end Cosby’s legal troubles because he could be retried on the same charges and is still facing lawsuits filed by some of the 60 women who have accused him of sexual assault, rape or sexual harassment.
As deliberations dragged on, signs of discontent in the jury room kept emerging. The jurors, who had been kept working for 12- and 13-hour days by Steven T. O’Neill, the Montgomery County judge overseeing the case, since beginning their cloistered discussions Monday afternoon, asked to go back to the hotel early on Tuesday. The next day they expressed “concerns” to court officials, though the judge did not reveal the substance of their complaints.
Defense attorneys furiously demanded a mistrial many times in the courtroom during the lengthy deliberations, but Judge O’Neill insisted on letting the jury continue its work. Cosby’s press team angered the judge by holding impromptu news conferences on the courthouse steps, fulminating for a mistrial and criticizing the judge for allowing deliberations to stretch longer than anyone could remember in previous cases held in this scruffy Philadelphia suburb.
Late Thursday morning, just after passing the 30-hour mark in deliberations, jurors formally announced for the first time that they were deadlocked in a one-sentence note saying they could not reach a “unanimous consensus” on any of the counts. The judge gave the standard order to keep trying, but they were ultimately unable to break the deadlock. When he first heard about the deadlock, Cosby walked out of the courtroom with a smile on his face.
The jurors gave few hints as to their leanings. But a few, including an elderly man who entered court each day leaning on a cane, showed their fatigue by occasionally nodding off in the jury box.
The jury seemed to take an unusually painstaking approach to deliberations, asking to rehear testimony from half of the prosecution witnesses and to look anew at evidence. The requests amounted to something akin to replaying the entire trial. And, by the end, jurors had deliberated for far more hours than the length of testimony, opening statements and closing arguments combined.
The conclusion of the trial, to an extent, softens one of the most thundering falls from grace by a popular culture figure in recent American history. Still, testimony in the case further sullied Cosby’s image as “America’s Dad,” with jurors hearing of his frequent infidelities.
His accuser, Andrea Constand, a former Temple University women’s basketball staffer, testified that Cosby sexually assaulted her in 2004, manipulating her into taking pills that left her “frozen” and unable to stop him from touching her breasts and genitals during an evening at his suburban Philadelphia estate. At the time, Cosby sat on the Philadelphia university’s board of trustees and frequently served as its public face.
Gianna Constand, the accuser’s mother, testified that the entertainer confessed to her that he was a “sick man.” But defense attorneys exploited numerous inconsistencies in Andrea Constand’s statements to police, cementing an impression that she was “a false accuser” who consented to sexual contact with an older man who showered her with gifts, such as cashmere sweaters and concert tickets.
Cosby’s charismatic lead attorney, Brian McMonagle, acknowledged that the comedian was an “unfaithful” husband, but said he is also “a brilliant comedian, who not only taught us how to smile but how to love each other no matter what we look like.”
The defendant, legally blind and palming the handle of a pencil-thin wooden cane, entered the courthouse in this working-class Philadelphia suburb each day clasping the arm of his publicist.
Sitting shoulder-to-shoulder in the courtroom were several of the 60 women who have accused him of sexual assault since the scandal broke in late 2014.
During the six days of testimony here, court security officers sometimes whispered the name “Dr. Huxtable” after Cosby passed, referencing his career-defining role on “The Cosby Show,” a program about an upper-middle-class African American family.
But the seven-man-and-five-woman jury, which included two African Americans, was introduced to a much more manipulative and scheming character. Jurors learned that Cosby sought to calm Constand’s mother by offering to pay for her daughter to attend graduate school. She did not accept the offer. All Gianna Constand wanted, she said, was an apology – and she testified that she got one from Cosby on the phone. In a deposition read to jurors – Cosby gave it after his accuser sued him in 2005 – Cosby worried that the mother thought of him as “a dirty old man.”
Cosby, who accrued one America’s largest entertainment fortunes with his television programs, books and G-rated comic routine about family life, was challenged in court by two sets of mothers and daughters.
Jurors also heard the searing testimony of prosecution witness Kelly Johnson, who sobbingly told them that Cosby drugged and sexually assaulted her in the mid-1990s; and her mother, Pattrice Sewell, a poised retired educator. Johnson, who met Cosby while working as an assistant to his agent, testified that Cosby had her fired after the alleged assault.
Johnson provided some of the most emotional testimony of the trial. She sobbed loudly as she described how Cosby coerced her to take a pill that made her vision so blurry she could not read the labels on a large array of prescription medicine bottles in the bathroom of the entertainer’s bungalow at the luxe Hotel Bel-Air. She was the lone previous accuser allowed to testify in the trial as prosecutors sought to establish a pattern of behavior.
Constand testified emotionally about meeting Cosby at Temple University in the early 2000s and striking up a friendship that centered on the entertainer’s interest in the women’s basketball team. Cosby testified in his deposition that he was attracted to Constand from the moment he first saw her and set about trying to woo her by offering to help with her sports-broadcasting aspirations, as well as arranging a romantic fireside dinner at his Philadelphia-area home.
The strongest pieces of evidence against Cosby were his admissions in police interviews and a decade-old deposition that he’d given doses of Benadryl, which he used as a sleep aid, to Andrea Constand before their sexual encounter at his home. A toxicologist called to testify by prosecutors said that Benadryl had been used by a serial rapist in Great Britain and that Cosby gave Constand enough of the medication – 1 1/2 pills – to make her drowsy.
He also testified that the symptoms she described were consistent with the effects of quaaludes, a powerful sedative that Cosby has admitted giving to women with whom he wanted to have sex.
The comedian was charged with three counts of aggravated indecent assault, each with slightly different criteria for a guilty verdict. One required the jury to find that Constand could not “consent,” another that she was “unconscious,” and a third that Cosby “administered an intoxicant.”
The jury seemed to be grappling with the basic framework of the case, sending several notes asking for large swaths of testimony to be read back to them. They seemed to chafe at the long hours imposed by O’Neill, who wanted them to work 12 1/2-hour days until 9:30 p.m. One night they urged court officials to let them eat earlier than usual, and the answer to one of their questions was delayed because the judge didn’t want their hot stromboli to get cold.
Little is known about the jurors because their names and even simple facts such as their ages were not disclosed during a lengthy selection process. Most appeared to be in their 20s or 30s, though there were several – including a woman who was the forewoman – who appeared to be middle-aged. During the trial, most dressed casually, with several of the younger men wearing jeans each day.
During the public portion of jury selection, one of the jurors said he is a teacher and regular NPR listener. A mother with a 2-year-old said she was willing to make child-care arrangements so that she could do her civic duty by serving on the jury, a remark that prompted Judge O’Neill to say she was “inspiring.”
The massive publicity about the allegations against Cosby made selecting the jury extremely difficult. One-third of the first pool of 100 jurors and half of the second pool were dismissed because they said they’d already formed an opinion about the comedian’s guilt or innocence. What was left were candidates who insisted they could remain impartial, even though they’d heard about the case, and several candidates who professed to only following sports news and said they’d heard little or nothing about Cosby’s scandal.
The defense team for Cosby, who did not testify, sought to portray his sexual encounter with Constand as romantic. They introduced telephone records that showed Constand calling Cosby twice on Valentine’s Day in 2004 – about a month after the alleged assault.
Prosecutors tried to paint the calls as business-related, because Cosby was a Temple trustee and Constand was an employee.
The Cosby team also made much of the gifts Constand gave Cosby – incense and T-shirts before the alleged assault – and bath salts afterward. Constand said she brought the bath salts to Cosby only to get the celebrity’s attention for a friend’s business venture.
When court was in session, Cosby’s face – so familiar to American television viewers for its elastic expressiveness – was usually set in a steely frown. At times, particularly during major moments in Constand’s testimony, he smirked or shook his head.
Noticeably absent from the two rows reserved for the defense during the prosecution case were Cosby’s wife of more than 50 years, Camille, and his four adult daughters. However, when it was the defense’s turn to start its case on Monday, Camille Cosby arrived at the courthouse on her husband’s arm. She entered the courtroom for the defense’s brief close with a rigid smile, then left after.
Bill Cosby was tried only about 15 miles from the grim North Philadelphia public housing projects where he grew up. His journey out of poverty formed the spine of a great American success story. By the time he became a criminal defendant, he had for many years been splitting time between a gated manse in the tony Philadelphia suburban enclave of Elkins Park, an elegant Manhattan townhouse and his secluded estate in Shelburne, Mass., among other homes. During jury selection, he traveled by private plane each day from his Philadelphia-area home to Pittsburgh, where his jurors were chosen because of intense publicity in Montgomery County, the site of his trial.
On the surface, his law-enforcement pursuers seemed hopelessly mismatched. The Montgomery County District Attorney’s Office that prosecuted Cosby has only 38 lawyers, with starting salaries of $41,000 and handles upward of 9,600 cases a year. They were pitted against a defendant with almost unlimited resources who hired McMonagle, one of Philadelphia’s most prominent defense attorneys, and Angela Agrusa, a Los Angeles-based lawyer who has had a series of successes representing the entertainer in lawsuits filed by his accusers.
District Attorney Steele, a tall, 50-year-old career prosecutor with gray, carefully parted hair, began assembling his team in July 2015. A trigger was the unsealing by a federal judge of Cosby’s deposition in a lawsuit Constand filed against Cosby in 2005 and eventually settled for an undisclosed amount after one of Steele’s predecessors declined to criminally charge the comedian. By then, the allegations against Cosby had been making worldwide headlines for months.
The reemergence of the scandal dated to late 2014 when a comedian, Hannibal Buress, urged a Philadelphia audience to Google Cosby’s name and the word “rape.” The routine was captured by a Philadelphia Magazine reporter who attended the show and posted a video on the Internet. Steele delivered an impassioned, career-capping closing argument while Constand, a Canadian massage therapist who once played professional basketball Italy, sat in the front row. Steele deftly used Cosby’s statements to police about his sexual contact with Constand and attorneys against the comedian.
“All the fancy lawyering you have can’t get you around your own words,” Steele said.
But in an often-volcanic closing argument Monday, McMonagle told jurors that Constand was telling “stone-cold lies.”
The defense team sought to undermine her credibility by peppering her and other witnesses with questions about a series of inconsistent statements the former Temple staffer gave to police investigators. During her early interviews, she said that she’d never been alone with Cosby before the alleged incident and that she didn’t have much contact with him afterward. She also said that the alleged assault took place in March 2004, but later asserted that it happened two months earlier, in January.
Later, some of the details of her story changed as the investigation of her allegations proceeded. She said that Cosby had made sexual overtures to her while they were alone at his Philadelphia home and described an evening they spent talking alone in his hotel room at the Foxwoods Casino in Connecticut.
Additionally, the defense sought to raise doubt by pointing out that Constand didn’t report the alleged assault until a year later.
Prosecutors tried to blunt the effect of those missteps by calling a rape expert who testified that victims are frequently confused and may have muddled memories when they first decide to report their allegations. If a victim has work or family contacts with her attacker, the expert said, it’s not uncommon for her to delay reporting an assault and to maintain contact with an attacker.