Uh-oh. What do we do now?
In the worst possible outcome, the seven men and five women assigned to judge the guilt of William Henry Cosby Jr. could not reach the required unanimous verdict on any of the three counts of aggravated indecent assault. It’s a hung jury.
It doesn’t satisfy the alleged victims, the criminal justice system, the people, or the media.
A hung jury may seem like a tie, but it’s not.
“A hung jury is a victory for the defense,” says attorney Daniel McGarrigle. “It has taken the best shot from the prosecution, and the client is still out of jail.”
In this particular case, he adds, Montgomery County sustained the enormous cost of bringing in a jury from out of town — Western Pennsylvania — and providing room and board. The high-profile trial also taxed other staff and financial resources.
To convict, the 12 jurors had to reach a unanimous decision, and when you delve into the complexities of the case, you find a few weak boards in the floor.
Andrea Constand, former operations manager for Temple University’s women’s basketball program, waited a year before going to police, talked to a civil attorney first, she and her mother were in contact with Cosby after the alleged assault, and some of her statements to investigators were inconsistent.
That presented a steep hill for prosecutors, and the defense tried making a mountain of it.
Constand did catch one break.
Although the evidence didn’t include a tape, the case did have a tale — the 79-year-old Cosby’s testimony in an earlier civil case brought by Constand. He insisted the touching was consensual but admitted to giving her three blue pills and to “offering” quaaludes to other women in the past.
That laid the foundation for a claim of a pattern of misconduct.
On the night in 2004 on which Cosby invited Constand to his home, she testified, he drugged her. He testified he was groping her and that “I continue to go into the area that is somewhere between permission and rejection. I am not stopped.”
Hard to put up a fight when you’re drugged, as Constand says she was — and she was not the only one.
In this trial, only one other alleged victim was allowed to testify, and former talent agency assistant Kelly Johnson tearfully told jurors that Cosby gave her a pill during lunch that made her feel woozy. She later awakened in Cosby’s bed, she said.
Again, he said/she said, but indicating a pattern — dots 12 jurors could not agree to connect.
Johnson didn’t come forward at the time because Cosby was her company’s biggest client. Who would take her word over the much-beloved Cos?
So the jury had to weigh what Johnson said and didn’t do, and what Constand said and didn’t do in a timely fashion. And the jury had to be sure beyond a “reasonable doubt.”
One takeaway lesson from the trial is that when you are the victim of a crime, even one that is embarrassing, you must come forward right away. Yes, easy for me to say, but the results of delay can work against the victim.
Despite an admission that Cosby was a pill-popping horndog, the jury could not find unanimity in a belief that he was guilty of sexual assault.
The mistrial means he still is not guilty in the eyes of the law, but most Americans never again will listen to a lecture from the self-confessed adulterous senior citizen about how people should conduct themselves. He failed to live up to the standard he advocated. There’s a word for that: hypocrisy.
With that said, because he is a philanthropist, loyal to his hometown, and to Temple, Philadelphians’ reaction may be softer, more measured, than elsewhere. Almost every day, fans and supporters had applauded Cosby as he entered the Norristown courthouse. The fact that he has admitted to shameful behavior seems besides the point.
Since I’ve been at my keyboard at this news organization, I’ve mentioned Cosby in 121 columns — almost always complimentary, because he earned it, and, well, you know, he’s Cos, the guy who made us feel good about being from Philly even when being from Philly wasn’t all that good.
We no longer need Cos to feel good about ourselves, and I no longer feel good about him. Do you?