Prosecutor vows to launch new sexual assault case against Bill Cosby following mistrial

June 17, 2017 12:25 PM PT

Reporting from NORRISTOWN, Pa. — A Pennsylvania judge declared a mistrial Saturday in the case against Bill Cosby after a jury was unable to come to a unanimous decision, an inconclusive finale to one of the most high-profile sexual assault cases in years.

Cosby was charged with three counts of aggravated indecent assault in an incident involving former Temple University basketball staffer Andrea Constand at his home in suburban Philadelphia in 2004.

Over the last 10 days, jurors heard the entertainer’s defense that the encounter was consensual, while Constand, taking the stand and facing Cosby for the first time, testified that Cosby drugged her and robbed her of the ability to consent.

Had he been found guilty, Cosby, 79, would have faced a maximum of 10 years in prison on each count.

Prosecutors said immediately they would retry the case, and Judge Steve T. O’Neill said he would try to schedule a new trial within 120 days.

The judge had sent jurors back for more deliberations Thursday after they initially reported they were deadlocked.

The jury asked for several portions of testimony to be reread, including Cosby’s admissions in the past that he had offered Qaaludes to women. Later, jurors requested a definition of “reasonable doubt.”

The judge concluded Saturday that they could not reach a verdict.

“Do you agree that there’s a hopeless deadlock that cannot be resolved by further deliberations?” he asked after calling the jurors in a little after 10 a.m. EDT. All jurors said yes, and O’Neil said, “After 52 hours of deliberation, which is probably one of the most courageous, selfless acts I’ve ever seen in the criminal justice system, I’m compelled to grant a mistrial.”

Outside the courtroom, various factions reacted to the mistrial ruling.

Attorney Gloria Allred, who represents many of the Cosby accusers, said, “We can never overestimate the blinding power of celebrity. But justice will come.‎”

She added, “‎‎It’s too early to celebrate, Mr. Cosby.”

Allred was flanked by Cosby accusers Linda Kirkpatrick and Jewel Allison, who have been in the courtroom audience throughout the trial. As they spoke at the podium, a small group of people nearby chanted, “We love Bill,” while Cosby and his team made their way to their car. Constand was not present outside the courthouse; she did hug other accusers in the courtroom, where she sat when the mistrial was declared.

Kirkpatrick‎ stood outside the courthouse and told The Times she was unpersuaded by the result.

“The jury worked hard and I have respect for everyone’s opinion,” she said. “But my experience trumps your opinion.”

She said it wasn’t disappointment that seized her Saturday but — with a new trial looming and her ongoing work on behalf of sexual-assault victims — a deeper sense of resolve.

“I’m incredibly hopeful. We just ‎have to get back to work,” she said.

Lili Bernard, another accuser, appeared more distraught. Normally chatty with the media, she walked out of the courthouse in a daze, bypassing cameras.

Dolores Troiani, a lawyer who represents Constand, praised her client to reporters.

“She’s a very spiritual person; she believes things happen for a reason,” Troiani said of Constand’s reaction to the mistrial. “She’s amazing — you can see there are other victims here that she was consoling,” the lawyer added, referring to the hugging moment in the courtroom.”

When it emerged at the top of the courthouse steps after the ruling, the Cosby camp claimed victory.

Cosby spokesman Andrew Wyatt said, ‎”Johnnie Cochrane is looking down smiling,” referring to the late lawyer, a Cosby ‎friend.

‎Wyatt said of Cosby’s reputation, “The legacy didn’t go anywhere. It has been restored.”

As Cosby stood with little expression on his face, an assistant read a statement from the comedian’s wife, Camille Cosby, in which she ‎ decried an “overtly arrogant” judge, “totally unethical” district attorney and “blatantly vicious [media] entities that continually disseminate intentional omissions of truth.‎”

‎She added “truth can be subdued but not destroyed.”

‎‎‎‎‎‎Cosby’s lawyer, Brian McMonagle, thanked jurors and court staff, then said of the mistrial, “Like the Rolling Stones song says, ‘You can’t always get what you want. But sometimes you get what you need.’”

Shortly after, Montgomery County Dist. Atty. Kevin Steele stood at a podium in the prosecutor’s offices across from the courthouse and said that he was frustrated but had harbored no illusions the case would be easy.

“Although we are disappointed that the jury was not able to come to a unanimous verdict in this case, we appreciate the extraordinary sacrifice the jury made,” he said, adding, “There’s no guarantee for a result. This is our system.”

The district attorney said he didn’t have any regrets about his strategic approach, saying he “felt good” when he made his closing argument Monday.

He vowed to press on with a new trial.

“We will take a hard look at everything involved and then move this forward as soon as possible,” he said. “Andrea Constand is entitled to a verdict in this case.” He also said Cosby’s celebrity would not deter him. “This case is about a drug-facilitated sexual assault. It doesn’t matter what you look like or who you are.”

The new trial is very likely to draw the same judge and may again pull a jury from a county far from this suburban Philadelphia area. Constand, whom Steele praised as “showing such courage,” is expected to again be the key witness in the retrial.

The prosecutor said he had not yet spoken to Kelly Johnson, the lone accuser from unrelated incidents who was allowed to testify by the judge, about whether she would take the stand again. Steele could petition the judge to admit the testimony of more past accusers.

Steele said that, despite the mistrial, he hoped the publicity would make other alleged victims feel comfortable about stepping forward. He also touted what he called another positive outcome.

“Andrea Constand got to face the defendant in court,” he said.

Victims rights groups had looked to the Cosby case as a milestone in a climate in which sexual violence by powerful men has historically gone unpunished. The failure to reach a verdict promises to be especially frustrating to the approximately 60 women who have stepped forward in the last 2½ years to accuse Cosby of similar acts.

Cosby has contended from the beginning that he and Constand were involved in a romantic relationship and there was no coercion.

The jury — seven men and five women from the Pittsburgh area, including two African Americans — spent more than four days deliberating, asking for large portions of testimony to be reread aloud in court.

“Each of you has a duty to consult with one another and to deliberate with a view to reaching an agreement if it can be done without violence to your individual judgment,” O’Neill told the jury after their initial deadlock. But such efforts proved fruitless.

Cosby’s lawyers had tried to sow reasonable doubt by pointing out inconsistencies in Constand’s account, particularly with respect to the date of the alleged attack. They pointed out that she and Cosby maintained contact for months after the alleged attack.

Steele, brought in expert witnesses who said that maintaining such contact is common among people who have been sexually assaulted by someone they know. The state also fortified its case with testimony from Constand’s mother and another Cosby accuser, former Hollywood agent’s assistant Kelly Johnson, who testified she was the victim of a similar assault by Cosby.

Over more than a week of testimony, jurors heard from a number of experts, police officers and accusers, as well as portions of a deposition and the police interview with Cosby.

The prosecution argued that Constand looked to Cosby purely as a mentor. The unidentified pills Cosby gave her during dinner at his home in January 2004, Constand testified, left her powerless to resist when he digitally penetrated her.

The comedian has insisted that their interaction was consensual, part of a romantic relationship that began before 2004 and formed the basis of their encounter that January night.

To bolster that, the defense offered evidence that they remained in contact after the encounter, both in person and on the phone. But Constand said she returned Cosby’s calls and saw him when necessary out of politeness and fear for her job — Cosby was a Temple trustee.

The verdict brings to a close one of the most high-profile sexual assault trials in years. It is likely to be hailed by victims’ rights groups, who said Cosby epitomized an ethos of privilege when it comes to sex crimes.

Constand’s assault claim took more than a decade to find its way into the courts. The fact that it made it to trial at all suggests both the strength and limits of star power. Testimony revealed a celebrity who had repeated encounters with women, but formed relationships awkwardly.

Constand caught Cosby’s eye after being introduced to him by a Temple trustee.

“I don’t know her; she doesn’t know me,” Cosby said, describing in the deposition how he was careful in how he approached Constand.

“Everybody knows you, Mr. Cosby,” the questioner countered.

“Not really,” he replied.

Cosby said he’d hoped, upon meeting Constand, that their interactions would “lead to some kind of permission or no permission, or how you would get to wherever you’re going to wind up.”

The trial opened a window into Cosby’s life — how he maintained homes in Philadelphia, Los Angeles, New York and Massachusetts, and gave Constand his phone number in Philadelphia because his wife wasn’t there.

He also maintained a chef who would cook meals to order for guests and would often be the only other person in the suburban Philadelphia home.

Cosby would have the chef cook Constand dinner, but wouldn’t join her in the meals. Instead he would pop in regularly to check how she was doing.

The trial marked the first time Constand had publicly spoken about her encounter with the entertainer.

Her testimony was frequently more procedural than emotional, but the shape of her narrative was similar to that of other women who have accused Cosby of sexual assault — though those other stories never resulted in prosecution and weren’t mentioned in court in this case due to statutes of limitations.

Constand described how, on the night in question, she began to lose her mental capacities after ingesting three pills that Cosby had offered her. He told her, she said, that they were herbal. “Little friends,” he called them.

“He assisted me over to the couch and just said, ‘Relax, just lay down here, you need to relax,’” she said he told her after providing the pills. “I was laying on my left side and he placed some kind of pillow [under me]. I have no real recollection except later I was jolted awake,” she said, going on to describe how he used his hand to violate her.

She said she would have liked to have gotten up and left but couldn’t. “In my head, I was trying to get my hands to move or my legs to move, but I was frozen and those messages didn’t get there,” she said.

Cosby said that Constand was awake the entire time and they simply had an amorous encounter in which she not only seemed willing but guided his hand into sensitive areas. He said he had given her the pills — Benadryl, he told authorities — to help her relax because she’d had trouble sleeping.

The much-publicized trial showcased very different legal styles: the often dry district attorney, Steele, and the colorful McMonagle, the showman lawyer prone to offering personal anecdotes — his closing featured an elaborate story about a visit to a suburban Shake Shack.

“We know why we’re here. Let’s be real,” he told the jury in his closing. “We’re here because of them.” At that point, he turned and pointed at a group of previous accusers sitting in the back of the courtroom. They looked back coolly.

Steele had run a campaign for district attorney on a pledge to prosecute Cosby. In his closing argument, the prosecutor offered a harsh assessment of the former sitcom dad, saying that he “has the means to do this … has created the opportunity by bringing the person to his house.”

Steele built some of his case around Cosby’s admission in the deposition that years ago he would buy Quaaludes to enable sex with women, using them “the same as a person would say, ‘Have a drink.’” This was proof, Steele suggested, of a pattern of drugging and molestation.

To help reinforce the point, he called as a witness Kelly Johnson, a former Hollywood agency assistant who claimed she had a similar encounter with Cosby.

McMonagle had at one point sought to have Steele removed from the case because of his campaign pledge, a fact that could help form the basis of an appeal, Cosby spokesman Andrew Wyatt told The Times before the verdict.

Jurors also heard from Timothy Rohrig, a toxicologist who had said it didn’t matter whether the pills were Benadryl or something stronger, such as Quaaludes: Even Benadryl “has been used as a drug to facilitate sexual assault,” Rohrig testified.

But it was Constand’s mother, Gianna Constand, who sparked some of the most interest in the courtroom. More emphatic than her daughter, she recounted how Andrea Constand had bad dreams and night sweats after the night at Cosby’s house.

When a defense lawyer asked her whether her daughter had shared details of a romantic relationship, she retorted: “No. Because there wasn’t anything to share.”

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Twitter: @ZeitchikLAT

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UPDATES:

12:25 p.m.: This article was updated with reaction from Cosby accusers Lili Bernard and Linda Kirkpatrick.

10:15 a.m.: This article was updated with comments from Montgomery County Dist. Atty. Kevin Steele .

9 a.m.: This article was updated with reactions and statements outside the courthouse to the mistrial.

This article was originally published at 7:25 a.m.