Cosby trial judge rejects mistrial, jury to resume deliberating on Saturday

Karl Baker, The (Wilmington) News Journal, Maria Puente USA TODAY | USA TODAY

Show Caption Hide Caption Bill Cosby trial still has no verdict. Here's what could happen It’s been a high profile case and one that after four days of deliberations still has no verdict.

NORRISTOWN, Pa. — The jury in Bill Cosby's sexual assault trial here broke off deliberating late Friday after a fifth day with no verdict, but will return Saturday to continue its struggle to resolve its impasse.

After the jury retired for the night, Cosby for the first time spoke to supporters outside the courthouse, according to video on Twitter. Earlier in the evening, a group of supporters sent up an impromptu chant of “let Bill go,” punctuated by shouts of “hey, hey, hey,” in the style of Cosby’s Fat Albert comedy character, in a demonstration near the front steps of the courthouse.

When Cosby left the courthouse, he paused and spoke to media cameras, thanking the jury for its work and urging supporters to remain "calm."

Breaking News!! Cosby speaks! Thanks supporters pic.twitter.com/mHrHnmefHW — DeMarco Morgan (@DeMarcoReports) June 17, 2017

The jury has deliberated more than 50 hours since it got the case late Monday. Friday was Day 10 of the trial, another grueling 12-hour day during which an exasperated Judge Steven O'Neill rejected multiple motions for a mistrial from Cosby's defense team while dealing with a slew of questions and requests for testimony read-backs from the jury.

The seven men and five women on the panel announced they were deadlocked on all three counts at lunchtime Thursday but O'Neill sent them back to try again. Repeatedly, the jury has come into court seeking guidance or read-backs; repeatedly he has tried to accommodate them and then sent them back to the jury room.

Meanwhile, Cosby lead defense attorney Brian McMonagle kept demanding a mistrial, arguing that the jury would never be able to reach a unanimous verdict.

O’Neill told McMonagle that he has no authority to interrupt a jury that is actively deliberating, no matter how long they go on. He said McMonagle should provide legal precedents to show when a judge interrupted and ended ongoing deliberations.

"You’ve given me no cases...that a judge has a right to stop a jury from deliberating when they are actively deliberating,” O'Neill said.

McMonagle countered that jurors may believe they are obligated to continue hashing out a unresolvable dispute, following O’Neill’s statement from yesterday directing the body to continue after they announced the deadlock.

But O’Neill did say he “intends to act” if jurors indicate again they are hopelessly deadlocked.

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The jury has requested multiple read-backs of trial testimony. They heard extended excerpts of testimony by Cosby in a police interview and a deposition, by accuser Andrea Constand on the stand, and by her mother, Gianna Constand, on the stand. They heard the definition of "reasonable doubt." They re-examined testimony about what Cosby said about his use of the now-banned sedative Quaaludes to give to women he sought for sex.

“Question: When you got the Quaaludes, was it in your mind that you would use these Quaaludes to give to women you wanted to have sex with? Answer: Yes. Question: Did you ever give the Quaaludes to women without their knowledge? Answer: No. Question: Did you know at that time that it was illegal for you to dispense those drugs? Answer: Yes.”

Jurors’ eyes were glued to their projection screen as the reading continued. Cosby sat back in his chair, expressionless.

“We’re being asked to review the entire trial,” McMonagle protested.

By late afternoon, O'Neill rejected one of the jury's read-back requests; the material had been read only minutes earlier in another review of testimony. He told jurors they should rely on their “collective memory.”

Before denying the first mistrial motion of the day Friday, Judge O'Neill warned Cosby that if he does declare a mistrial later, and prosecutors retry the case, Cosby cannot then argue a double jeopardy defense.

Later, attorney Gloria Allred, who represents dozens of other Cosby accusers and has been attending the trial, interpreted the jury's interest in the Quaaludes question. "It's good for the prosecution," she said, flatly.

Cosby spokesman Andrew Wyatt telegraphed Thursday night the defense motions for a mistrial, telling a mob of reporters on the courthouse steps the judge should call a mistrial even while the jury was still deliberating.

“We’re in the 40th hour and we can only imagine the emotional and physical toll this has taken on the jurors and we’re just hoping that the judge, if they don’t have a verdict by now, he would release them, and just say that this thing is a deadlock,” Wyatt said.

Cosby, 79, is charged with three counts of aggravated indecent assault stemming from an encounter with Constand at his nearby home in 2004. She says he drugged and molested her as she lay helpless on his couch. He says they were lovers and the encounter was consensual.

If he is convicted on even one count, he faces spending the rest of his life in prison.

The jury must be unanimous in voting either to convict or acquit. The jury could potentially vote to convict on some counts and acquit on others but that would likely be an issue for appeal. Or the jury could remain deadlocked and unable to come to a unanimous decision, which would give O'Neill little choice but to declare a mistrial.

District Attorney Kevin Steele, who ran for office promising to pursue Cosby on the long-abandoned case, would then have several months to decide whether to retry Cosby. It took 18 months for these charges to come to trial; another trial would likely take as long, thus making the case even older than 13 years.

It's not clear what the jury's current vote is: Is there only one holdout or more than one? Are the majority for acquittal or for conviction?

"The jury can always write a note to the judge what the vote is, but the courts prefer not to have that information," says New York criminal defense lawyer Stuart Slotnick, who's been following the trial. "Sometimes the jury will disclose the vote to demonstrate that the jury is far apart or that they are very close but there is one holdout. Frequently after high-profile cases, some of the jurors speak to the press and disclose all."