Jurors in the Bill Cosby trial said midday Thursday they are deadlocked and cannot come to a unanimous consensus on any of the three counts of aggravated indecent assault the comedian faces.
Judge Steven O’Neill asked the jury, which began deliberating Monday evening, to go back to deliberating in another attempt to reach consensus.
“If you are still deadlocked, you should report that to me. If you’ve reached a unanimous decision on some of the charges, please report that back to me,” O’Neill said.
After O’Neill’s direction, jurors worked into the evening, approaching around 40 hours of deliberations.
There is no limit to how many times a judge can issue the Spencer Charge, which is a set of instructions that asks jurors to re-examine their own views and opinions, according to Jim Koval, the director of communications for the Pennsylvania Courts. The charge is also known as the Allen Charge in other states.
If, after further deliberations, they still cannot reach consensus, a hung jury will cause the judge to declare a mistrial.
The jury — which has deliberated for about 31 hours in all — is made up of four white women, six white men, one black woman and one black man. They were bused to Norristown, Pennsylvania from Allegheny County near Pittsburgh and have been sequestered in a hotel for the trial.
Prosecutors say Cosby drugged and sexually assaulted Andrea Constand, the former director of operations for Temple University’s women’s basketball team, at his home near Philadelphia in January 2004. Cosby, 79, pleaded not guilty to the charges.
He said, she said
The three charges accuse Cosby of assaulting Constand without her consent, assaulting her when she was unconscious and assaulting her using drugs to substantially impair her ability to consent. If found guilty, he could face up to 10 years in prison for each charge.
Prosecutors called 12 witnesses over a week of testimony, including Constand, but presented almost no forensic evidence. Cosby declined to testify in his own defense, and his attorneys only called one witness. Cosby’s defense attorneys argued the sexual contact was consensual and worked to highlight inconsistencies in Constand’s testimony on cross-examination.
Legal experts said the trial fits the “he said, she said” arguments so common to sexual offense cases.
So far, jurors have asked six questions during their deliberations, largely to rehear testimony. Two questions asked to review parts of Cosby’s account to authorities, and two asked to rehear Constand’s account and testimony. Jurors also asked the court to define the phrase “without her knowledge” in one of the charges, and asked to rehear testimony from the Cheltenham police detective who interviewed Cosby.
The announcement of a deadlocked jury created a hubbub of energy outside the Montgomery County courthouse. Lili Bernard, a Cosby accuser who has been present in court during the trial, got into a fierce argument on the courthouse steps with a man who supported Cosby.
Constand herself did not appear stressed in the court as she waited for the jury. The former basketball player posted a video to Twitter of her passing the time by shooting hoops on a mini-backboard.
Cosby spokesman Andrew Wyatt called on the judge to end the wait and declare a mistrial on Thursday evening. He added that Cosby “is just happy that we have fair and impartial jurors.”
Though dozens of women have accused Cosby of sexual misconduct, only Constand’s accusations led to criminal charges. One other accuser, Kelly Johnson, testified during the trial as prosecutors sought to establish that Cosby had a pattern of assault. Johnson testified that she was drugged and assaulted by Cosby in 1996.
‘They’re your friends’
Constand testified over two days last week for the prosecution. In clear and firm statements, she said Cosby, a powerful Temple alum, mentored her and took an interest in her career like a father figure. The comedian, 37 years her elder, twice made what she called “suggestive” passes at her, but she rebuffed him, she said.
But when speaking about her career plans one night at his home, the sweater-wearing actor known as “America’s Dad” gave her three blue pills that he said were herbal and would help her relax, she testified.
“Put them down, they’re your friends. They’ll take the edge off,” Cosby told her, she testified. “I said ‘I trust you.’ I took the pills and I swallowed the pills down.”
She began slurring her words and felt dizzy, and told Cosby so, she said. Shortly after, she became incapacitated and felt “frozen,” she testified. Cosby then placed her on the couch and sexually assaulted her without her consent, she said.
She woke up on the couch early in the morning with her clothes disheveled, she said.
“I felt really humiliated and I was really confused,” she said through tears. “I just wanted to go home.”
Cosby lowered and shook his head in the courtroom as she spoke.
Gianna Constand, the accuser’s fiercely protective mother, testified that Cosby apologized over the phone to her and her daughter and offered to pay for her schooling. Cosby also declined to tell her what pills he had given Andrea Constand, but he did say they were from a prescription bottle, she testified.
‘I was mistaken’
Defense attorneys argued that the sexual contact was part of a consenting relationship between Cosby and Constand. They cast Cosby as an unfaithful husband — but not a criminal.
In a tense cross-examination, defense attorneys pointed out that several of Constand’s initial statements to police, including the date of the alleged assault, were later proved to be false.
“I was really nervous and wasn’t able to recall every particular moment that I had seen Mr. Cosby in order of dates,” she explained.
In addition, Constand initially told police that she had not been alone with Cosby prior to the alleged assault and that they had little contact after. However, she testified that she had been alone in a hotel room with Cosby beforehand, and that there were 72 calls between the two afterward.
She also asked Cosby’s representatives for free tickets for her and her family to see Cosby’s stand-up show in Toronto in August, half a year after the alleged assault.
But she said the hotel room meeting was not romantic, and explained that she made those phone calls in her job responsibility at Temple. She got the show tickets because her family loved Cosby, and she hadn’t yet told them about the alleged assault.
Defense attorneys said those were not the actions of a sexual assault victim, and suggested she was lying.
“I was mistaken,” she said. “It was a lot of confusion putting a lot of dates together.”
Jurors did hear Cosby’s side of the story — but not in his voice. Prosecutors and police detectives read aloud portions of Cosby’s statements to police in 2005 and in a civil deposition in 2006. In those interviews, Cosby admitted to sexual contact with Constand and said they had previously had a romantic encounter.
He also said the pills he gave her were over-the-counter Benadryl, which he admitted can cause sleepiness.
In the civil deposition, Cosby admitted that he had previously obtained prescriptions for Quaaludes, a powerful sedative, with the intention of giving the drugs to women with whom he wanted to have sex.
Prosecutors say his prior use of Quaaludes shows that Cosby had knowledge of what he was doing when he gave her the pills.
How we got here
Constand initially told police about the alleged assault in January 2005, a year after she says it took place. The district attorney at the time declined to press charges, citing insufficient evidence. She sued Cosby in a civil suit and settled for an undisclosed amount in 2006.
In late 2014, dozens of women went public with accusations that Cosby drugged and sexually assaulted them over the course of his lengthy comedic career.
In July 2015, a judge unsealed Cosby’s deposition in that 2006 civil lawsuit. His admissions in that deposition led Montgomery County prosecutors to file charges against him.
The trial started on June 5. Cosby, who is legally blind and carries a cane, has arrived in court each day with someone from the world of entertainment. Keshia Knight Pulliam, who played Rudy Huxtable on “The Cosby Show,” escorted Cosby into court on the first day of the trial.
His wife Camille walked into court with him on Monday, her first appearance at the trial.