Why Couldn’t the Cosby Jury Reach a Verdict? Legal Experts Assess

Why Couldn’t the Cosby Jury Reach a Verdict? Legal Experts Assess

As the jury’s deliberations extended into this weekend, the possibility of a verdict in Bill Cosby’s sexual assault trial seemed to dim, though legal experts cautioned against drawing any conclusions. But when the judge in the case, Steven T. O’Neill, declared a mistrial on Saturday morning after the jury said it was hopelessly deadlocked, some criminal law experts who had been closely following the proceedings suggested that the conclusion was hardly unexpected.

Several pointed to inconsistencies in statements made by the woman at the center of the case, Andrea Constand, who said Mr. Cosby had disabled her with a powerful drug and then sexually assaulted her at his home outside Philadelphia in 2004. Others pointed to the strength of Mr. Cosby’s defense lawyer, Brian J. McMonagle, whose team argued that the sexual interaction between Mr. Cosby and Ms. Constand had been consensual. In his closing argument, Mr. McMonagle acknowledged that Mr. Cosby might not have been a faithful husband, but said that this was not a crime.

Still others said the jury might have believed that Mr. Cosby was a sexual predator — more than 40 women have come forward with sexual assault accusations against him — but that they could not convict him based on the facts of this specific case.

The jury’s inability to reach a unanimous verdict also pointed to the difficulties of trying sexual assault cases, particularly one brought against such a well-known celebrity so many years later, some experts said. In the end, they said, the case came down to one of “he said, she said,” about an interaction that occurred more than a decade ago, and the jury could not come to a consensus over whether Mr. Cosby had committed a crime.

The New York Times asked some top criminal law experts who have been monitoring the case to provide their assessments of the trial. Here are their analyses.

Alan J. Tauber

Philadelphia defense lawyer and former public defender

“Some jurors were no doubt moved by Ms. Constand’s contradictory statements to police during the initial investigation. She denied having been alone with Mr. Cosby before the alleged assault; she denied having contacted him afterward; and stated that the assault occurred in March of 2004. All demonstrably false.

That, together with the summation of Brian McMonagle, one of the best closers in the business, was too much to get 12 people to agree. It would not surprise me to see Steele [Kevin R. Steele, the prosecutor] retry this case, since he made it a campaign issue when he ran for office.”

Kevin Harden Jr.

Former Philadelphia prosecutor and criminal defense lawyer

“The jury’s repeated questions about prior statements and reports to police suggests that some were primarily concerned with Constand’s credibility. It also demonstrates the importance of the Court’s pretrial decisions about the testimony of other Cosby accusers. By limiting evidence of other accusers, the Court focused the jury on whether the prosecution presented enough credible evidence to convict Cosby of this particular assault. The pretrial decision that limited the testimony of other Cosby’s accusers is probably the reason the case ended in a mistrial. It would be reasonable, based on the evidence presented, for the jurors to agree that Cosby is a sexual predator and still disagree on a verdict as to the assault of Constand.”

Michelle Madden Dempsey

Law professor at Villanova University

“The prosecution of Bill Cosby for the aggravated indecent assault of Andrea Constand was widely viewed as a ‘tough case’ — and no doubt the retrial will be tough as well — but as District Attorney Kevin Steele rightly observed in his comments following the mistrial, prosecutors ‘should take on the tough cases. It’s the right thing to do.’

As social norms around drug-assisted sexual assault begin to shift, prosecutions like the one of Bill Cosby go a long way toward raising awareness, supporting victims, and holding predators accountable. Now, if only all prosecutors would try the ‘tough cases’ of drug-assisted sexual assault, we would finally end impunity for these sexual predators.”

Barbara Ashcroft

Associate professor at the Temple University Beasley School of Law and a former prosecutor in the Montgomery County district attorney’s office

“I am a bit befuddled that the jury deliberated for six days wherein jurors are simply determining the credibility of two people. No forensics, no toxicology, and no physical evidence for the jury to examine, analyze or argue over. Yet the jury was deliberating longer than it took for both the prosecution and defense combined to try this case. What this means is, jurors are ‘fighting’ over who to believe and who to trust as they methodically examine and in this case “re-examine” the testimony.

This has been a classic sexual assault case of ‘he says, she says.’”

Joseph McGettigan

Former prosecutor who led the prosecution of Jerry Sandusky, the former Penn State assistant football coach convicted of sexually abusing boys

“By the second day of deliberations, a hung jury had started to appear to be a real possibility, at least to me. The questions certainly gave the appearance of there being an effort to persuade a faction of the jury, perhaps just one juror, of the weight of the evidence. The ‘reasonable doubt’ question is the clearest example of that. That request from the jury is usually the result of one holdout for acquittal saying to the others that ‘I think he’s guilty, but I’m just not sure they proved it beyond a reasonable doubt.’

Certainly there are factors extraneous to the evidence upon which a holdout could covertly fix — age of the defendant, race, celebrity and a generalized iconic status could all be among those factors. Of course, there were difficulties in the prosecution evidence — inconsistencies in the victim’s testimony, her delayed reporting and her continued contact with the defendant. But I think that discussions with the jurors, if they occur, will reveal that most of the jury had overcome those impediments to conviction by finding the victim credible on the witness stand. Obviously not so for one or more of the jurors.”


Published at Sat, 17 Jun 2017 19:49:02 +0000

Grim Echoes for Families: An Officer Shoots and a Jury Acquits

ST. PAUL — When the verdict came down on Friday — another police officer found not guilty in the killing of another black man — a father 700 miles away, in Oklahoma, felt as if he were watching a sickening replay of his own son’s fate. Other families of those killed in previous police shootings, who happened to be gathered in Detroit for a conference this past week, felt reverberations of their own pain.

And on a street corner here outside the courthouse where a jury acquitted a Minnesota officer in the fatal shooting of Philando Castile last summer, Mr. Castile’s mother, Valerie, vented a bitter frustration shared by many activists. “A murderer gets away,” said Ms. Castile, visibly anguished. “The system in this country continues to fail black people.”

After all of the public scrutiny, nationwide protests and grisly videos of police shootings over the past several years, few officers are criminally charged, and when the rare case is prosecuted, hopes rise that justice will be served. More often than not, officers are not convicted, raising a question: Do divisions widen more between the police and their communities if people view the justice system as having failed than if there had been no prosecution, no deeper look, at all?

About 900 to 1,000 people are fatally shot by police officers in the United States every year, said Philip M. Stinson, an associate professor of criminal justice at Bowling Green State University who tracks police shootings. Since 2005, when Mr. Stinson began his tally, just 29 nonfederal law enforcement officers have been convicted in on-duty shootings. Fourteen pleaded guilty, and 15 were convicted by juries. In that time, more officers — 33 — have been arrested or charged with murder or manslaughter but not convicted.

In many of these cases, questions of guilt do not hinge on who fired the fatal shot, but on what officers were thinking when they pulled the trigger.

“As soon as the officer gets on the stand and subjectively says, ‘I was fearing for my life,’ many juries are not going to convict at that point,” Mr. Stinson said. “We’ve seen it over and over again.”

Such was the case in Cincinnati, where prosecutors are retrying a former university police officer on murder charges after a jury failed to reach a verdict on whether to hold him responsible in the shooting death of Samuel DuBose, an unarmed black driver. In Baltimore, the prosecution of six officers in the death of Freddie Gray, who suffered a fatal spinal cord injury in police custody, ended last year without a single conviction after three officers were acquitted and the state’s attorney dropped all remaining charges against the other three.

And last month in Oklahoma, a jury that included at least four black jurors deliberated for nine hours before acquitting a white police officer, Betty Jo Shelby, in the shooting of Terence Crutcher. He was standing in the street outside his sport utility vehicle, was unarmed and had his hands in the air for much of the fatal confrontation.

When Mr. Crutcher’s father, the Rev. Joey Crutcher, 69, heard about Friday’s verdict, he said, his thoughts turned to his son and parallels between the case in Minnesota and his son’s. “We’ve gone through this time and time again in different cities,” he said. “I’m beginning to think that police have free rein and they can just do whatever they want and they are going to get off.”

Mr. Crutcher said the legal process could take a toll on family members who attend court hoping for justice but must watch videos of their loved one dying again and again. “I relived that night during the course of hearings and during the trial,” he said. “They played over and over again that video where my son was walking with his hands up, and I knew what my son was doing. He was remembering what I told him to do. If you’re stopped by the police, raise your hands and put them on the car.”

Advocates for law enforcement officers said the acquittals were signs of weak cases filed by prosecutors in response to public outcries. Earl Gray, a lawyer for Jeronimo Yanez, the officer who shot Mr. Castile, said the trial against his client had gone forward largely because of political pressure and a flood of attention over a video that Mr. Castile’s girlfriend had streamed live on Facebook in the moments after the shooting. “A lot of publicity was generated” from the video, Mr. Gray said, “which of course caused Ramsey County to charge Officer Yanez.”

But for activists and the 2,000 protesters who gathered in St. Paul on Friday night, the not-guilty verdict was a painful injustice.

Some here took solace that the case had been brought in the first place, especially given earlier cases, like the fatal police shooting of Jamar Clark in Minneapolis in 2015, in which prosecutors decided not to press charges. Others called the trial a show, nothing more. “What else could we have expected?” asked Anthony Newby, a community activist in Minneapolis who said he had cried behind his closed office door after hearing the verdict. “There’s that familiar rage that boils up all the time.”

Mr. Castile’s mother said after the verdict that she had believed her son’s death would be the case to upend the pattern of “not guilties” and deadlocked juries.

The Facebook live video of Mr. Castile’s last, bloody moments after being shot had set off two weeks of protests here over the police’s use of force, and touched off a chorus of demands to prosecute Officer Yanez. When he was charged with manslaughter, legal observers said it appeared to be the first time a Minnesota police officer had been indicted in an on-duty shooting death of a civilian. “This time we didn’t have a man fleeing from the scene,” said Glenda Hatchett, a lawyer for the Castile family. “We didn’t have a man fighting the police. We had a man who was fully compliant, as his mother taught him.”

“I don’t know what more could have been done,” she added.

But the jury’s verdict on the fifth day of deliberations after a three-week trial showed how different the same shooting could appear to protesters gathered outside the State Capitol than to 12 people inside a jury room. Prosecutors and Mr. Castile’s girlfriend, Diamond Reynolds, said Mr. Castile had been shot as he reached for his identification. But defense lawyers said Officer Yanez believed that Mr. Castile was reaching for his gun. In a dashboard camera recording before the shooting, Mr. Castile — who was licensed to carry a gun — can be heard calmly informing Officer Yanez about the weapon.

Jeff Roorda, business manager for the St. Louis Police Officers Association, said many officers were paying attention to jury decisions in police trials like Officer Yanez’s. “This isn’t cause for celebration,” he said. “A man’s dead. An officer’s career is over. And a split-second decision turned into tragedy. But again, I think what’s missed in the conversation is that sometimes cops do get it wrong. But there’s a difference between getting it wrong and acting criminally.”

John J. Choi, the elected prosecutor of Ramsey County, defended his decision to bring charges and said he recognized that the verdict would disappoint many who, though skeptical, had decided to give the justice system a chance this time. “There was ample evidence. If the jury wanted to, if they chose to choose those facts, they would have got a conviction,” Mr. Choi said. “I’m sorry that it didn’t work out as the Castile family would have liked. But the process, we can’t control it.”


Published at Sat, 17 Jun 2017 15:40:58 +0000