NORRISTOWN, Pennsylvania — Bill Cosby will remain a free man, for now.
After more than 50 hours of deliberation, 12 jurors were unable to reach a consensus on whether he sexually assaulted Andrea Constand after allegedly drugging her in 2004. A judge declared a mistrial in the case on Saturday morning, but prosecutors immediately announced they would retry the 79-year-old comedian.
More than 50 women across five decades have accused him of sexual assault, but only Constand’s accusations fell within the statute of limitations for criminal prosecution.
Cosby's team counted the draw as a victory.
"Mr. Cosby's power is back. It's back. He has been restored," publicist Andrew Wyatt said on the courthouse steps. Wyatt told attorneys who supported the accusers such as Gloria Allred to "go back to law school and take another class."
Montgomery County District Attorney Kevin Steele said he decided to try again after speaking to Constand.
"She is entitled to a verdict in this case and we will push forward to get the job done," he said. "We will push forward."
While the state legally has a year to refile charges, Steele alluded to a 120-day window in which he plans to announce a new case against Cosby.
"We felt really good about this case, there are always tweaks and we can always do things better," he said." We are confident in the case we put on and we hope we will be in a position where a jury will come to a unanimous verdict next time around."
The jury first announced it was deadlocked Thursday morning after four days of deliberation. Judge Steven O’Neill told them to keep trying. The jury returned to the courtroom several times to ask O'Neill questions, including the definition of reasonable doubt. They deliberated all day Friday with the Cosby defense team calling twice for a mistrial.
On Saturday morning the jury came back to say it was at an impasse and O’Neill declared a mistrial.
“Beyond a reasonable doubt is a high standard to meet, especially when it’s a case of he said, she said,” said Gail N. Marr, a former Assistant District Attorney in Bucks County, Pennsylvania, who now defends clients accused of sexual assault.
Marr said that once a jury reaches an impasse — particularly in a case like the Cosby trial, which lacked any physical evidence of a crime — it is unusual for a verdict to be delivered.
“It's hard to change someone's mind when they have strong beliefs about something,” she said.
Prosecutors alleged Cosby sexually assaulted Constand, a former Temple University employee, at his Philadelphia-area home in 2004. Following an investigation in 2005, the Montgomery County District Attorney’s Office declined to charge Cosby, citing insufficient evidence. In 2015, a judge unsealed Cosby’s deposition from Constand’s civil lawsuit against him, in which he admitted to giving drugs to women he had sex with. That led Steele to charge Cosby with three counts of aggravated indecent assault.
Jurors were asked to consider three separate counts against Cosby, including whether Cosby intentionally drugged Constand to have sex with her without her consent. This seemed to be a sticking point for the jury, which asked for clarification on the definition of being unknowingly drugged. Constand didn’t dispute that she willingly took the pills Cosby gave her, but she claims he lied to her about what they contained.
“Mark my words: In this case, ladies and gentlemen, we want you to look very, very closely at his words, because when you do there is no other decision to make in his words that he is guilty…it comes out of his own mouth,” Steele said in his closing arguments.
Constand was the prosecution’s central witness in the trial that began last Monday. She worked for Temple’s women’s basketball program from 2001-2004 and befriended Cosby, one of the school’s high-profile trustees and donors. Constand told the jury that Cosby became a mentor and father figure to her. That is why Constand said she visited Cosby’s home in January 2004 to discuss her career plans.
Instead, Constand claims, Cosby offered her three blue pills that he called “his friends.” She testified that the comedian claimed that the pills were herbal and would help her relax. Instead, she claims that they made her unconscious.
In graphic testimony, Constand says she came to while Cosby was assaulting her.
“At some point later, I was jolted awake and I felt Mr. Cosby’s hands [on] my breast and his hand inside my vagina moving inside and out, and my hand on his penis and moving it back and forth,” she said. “I wasn’t able to—in my head—I wasn’t able to move my hands and those messages didn’t get there. I wanted it to stop.”
The defense prodded Constand’s accounts during cross examination, and argued that she and Cosby’s relationship was consensual. They also pointed out that Constand's initial statements to police in January 2005 were inconsistent with her later testimony.
For example, Constand had told police that the assault occurred at Cosby's house on March 16, 2004, after a dinner with Cosby and others. Constand admitted in her testimony that the alleged incident occurred on a different date.
“I was mistaken,” Constand said. “It was a lot of confusion putting a lot of dates together.”
The defense also pointed out, through phone-record evidence, that Constand remained in touch with Cosby after the alleged assault.
“This isn’t talking to a trustee,” defense attorney Brian McMonagle said. “This is talking to a lover.”
Though the alleged incident took place in January 2004, Constand did not tell anyone else until a year later. She told her mother, Gianna, who called Cosby to confront him. In that conversation, Cosby admitted to engaging in intimate relations with Constand, and apologized to her mother, even calling himself “a dirty old man,” in his civil deposition. Cosby did not admit to drugging or assaulting Constand though.
One accuser, Kelly Johnson, was allowed to testify as prosecutors wanted to corroborate her account with Constand’s and show a pattern of assaults by Cosby.
“He opened his hand and there was a large white pill in the palm of his hand,” Johnson testified, describing an incident involving Cosby that she said happened in 1996. “I sort of came to in the bedroom of the bungalow. I remember hearing sounds, grunting sounds behind me. My dress was pulled up from the bottom and pulled down from the top. My breasts were out. I felt naked but my dress wasn’t off me. I saw [Cosby] standing by the side of the bed. I could see a bottle of lotion… he put lotion in my hand and he made me touch his penis.”
Cosby’s defense attorney accused Johnson of being an opportunist who waited until 2015 to go public with her story by holding a press conference and going on a media tour that included stops on cable news and Dr. Phil.
Cosby’s statements to police in 2005 and his answers in a civil deposition in 2006 were also damaging to his case. In a statement to police, Cosby says he gave Constand over-the-counter Benadryl, but that she was awake and consented. He says that after a brief sexual encounter the two laid on a couch until Constand fell asleep. In the morning, Cosby said he made breakfast for Constand before she left.
In statements made by Cosby in the civil deposition, he admitted to obtaining Quaaludes to give them to women he wanted to sleep with. Quaaludes have be illegal in the U.S. since 1984.
Cosby mostly sat quietly until Monday, when he told the judge that he would not testify, following some speculation that he might take the stand.
While the prosecution rought 12 witnesses over the course of the first week of the trial, the defense only called one witness, Detective Richard Schaffer, to the stand on Monday.
Schaffer had appeared as a somewhat combative witness for the prosecution last week, but was only questioned by the defense for six minutes before the defense rested its case.
McMonangle implored the jury to understand that in order to come to a guilty verdict, they had to feel Cosby was guilty beyond reasonable doubt in his closing statements. Meanwhile, Steele focused on using Cosby’s own words against him.
“Drugs and sexual relations don’t go together, they take away people’s ability to make decisions and that was the defendant’s goal,” Steele said.