Sunday, June 18, 2017

Bill Cosby trial: How did a mistrial happen? And what comes next?

The outcome of the Bill Cosby sexual assault trial is that there isn't one: On Saturday morning, Judge Steven O'Neill declared a mistrial after the jury failed to reach a unanimous verdict on any of three counts of aggravated indecent assault of accuser Andrea Constand, following 52 hours of deliberation over five days.

Cosby was not found guilty and was not acquitted. A jury of seven men and five women could not reach a unanimous verdict  required by law for either, thus resulting in a hung jury, thus resulting in the declaration of a mistrial.

Why did a mistrial happen? The bottom-line: Mongtomery County District Attorney Kevin Steele failed to prove the state's case against Cosby beyond a reasonable doubt to at least one member of the jury. Here are several theories of what led to a mistrial.
Cases are difficult to prove when significant time has elapsed

The encounter between Bill Cosby and accuser Andrea Constand happened in January 2004. She did not report it until a year later. Steele did not file charges until December 2015 (after a previous DA declined for lack of evidence due to the time lapse), and the trial took place in June 2017.

Getting a conviction this long after the alleged assault is anything but a slam dunk, lawyers say.

"Prosecuting a case this old is inherently risky as jurors need to have a comfort level that justice is reasonably speedy and has not been delayed for improper reasons,says Dennis McAndrews , a former Pennsylvania prosecutor who has been following the case.

Prosecuting sex crimes a decade or more after an incident is almost always difficult, "because memories fade over time, potential forensic evidence is often unavailable, and juries may wonder why they should convict if the alleged assault happened so long ago," adds Dan Schorr, managing director of Kroll Associates, a former New York sex-crimes prosecutor who also teaches a class on sex crimes at Fordham University's law school.
Judge O'Neill did not allow a dozen other accusers to testify

The defendant doesn't have to testify, and Cosby did not, preferring not to open himself up to cross-examination about the five-dozen other women who have accused him of drugging and/or raping them in episodes around the country dating back decades (and thus too old to prosecute).

But Steele could not persuade O'Neill to allow a dozen other accusers to testify that Cosby drugged and sexually assaulted them, too, to demonstrate a pattern of prior bad acts. Instead, Steele was allowed to call just one other accuser, Kelly Johnson , to testify that Cosby drugged and assaulted her in a Los Angeles hotel in 1996.

"The testimony of Johnson helped corroborate Constand’s account by supporting the argument that Cosby did have a pattern of drugging women in order to sexually assault them, Schorr says.

But it wasn't enough. Gloria Allred, the women's rights attorney who represents 33 Cosby accusers, told the media outside the courthouse after the mistrial, that she hoped next time more accusers will be allowed to testify.

“The court only allowed one such prior bad act witnesses,” she said. “If the court allows more accusers to testify next time it might make a difference. In other words, it’s too early to celebrate, Mr. Cosby.”

O'Neill allowed Steele to introduce as evidence Cosby's own words about his encounter with Constand, in a 2005 police interview and in a deposition he gave for her 2005 civil lawsuit against him. The latter contained damaging admissions that he acquired drugs to give to women he sought for sex.

"Cases such as this one are difficult to prosecute when there is a delay in reporting and no (forensic) evidence, says New York criminal defense attorney Stuart Slotnick who's been following the case for more than two years. Here, however, the prosecution had Cosby's explanation and deposition, which is not the case in most trials.