After percolating out of sight, the possibility of a mistrial in the Bill Cosby sexual assault case burst into open court Friday.
Judge Steven T. O’Neill challenged Cosby’s lead lawyer on a mistrial motion as a deadlocked jury deliberated through its fifth day. Cosby is charged with three counts of aggravated indecent assault of former Temple University basketball staffer Andrea Constand in 2004.
“You made motions for mistrial. And as you make them it appears the court is being ignorant to you,” O’Neill said to the defense lawyer, Brian McMonagle. “I have no ability to do anything but what I’ve done.” He rejected the motion.
McMonagle argued that it was fruitless to continue deliberations.
“What we got now is jurors trying to overcome other jurors by reading testimony in the case,” he said. “We’re well past the point of free will.”
The defense, which has indicated it would consider a mistrial a win, was taking issue with the length of deliberations, which Friday evening passed the 52nd hour as it headed to Saturday; it also noted jurors asking for extensive recounting of testimony.
But O’Neill shot those arguments down.
“Get me the law that supports what your rhetoric keeps fostering,” the judge said. As long as the jury is deliberating he could and would not stop them, and would consider declaring a mistrial only after the jury returned with another deadlock, he said. “If they say they can’t give me a unanimous verdict, I intend to act.”
O’Neill then called the jury into the courtroom and asked them to keep working and let him know if they had reached a stalemate.
He also referred to four previous mistrial requests, which were made in his chambers, out of public view, and not known before Friday. He moved this one to open court, he said, because he wanted the public and news media to be aware he was not pushing the jury to do anything they weren’t already doing.
O’Neill had appeared impatient Thursday night after a news conference by Cosby spokesman Andrew Wyatt exhorting the judge to call a mistrial.
And earlier Friday, O’Neill addressed Cosby on the issue of mistrial, an unconventional address observers believed was a response to the Wyatt news conference. In talking to the defendant, O’Neill alluded to issues being “explain[ed] out in the media” and said he wanted to “understand the decision for requesting a mistrial is yours and yours alone.”
He also said to Cosby: “Your counsel has now made a number of motions for mistrial. Let me make sure you understand” what’s at stake. He then asked the entertainer a series of questions on whether he had freely given his approval.
“Every time Mr. McMonagle says [mistrial], I am understanding that you are consenting to what he has said,” O’Neill said. Cosby answered the yes-or-no questions emphatically from his defendant’s chair.
On Friday night, Wyatt held another news conference, but softened his tone.
“It’s in God’s hands, in the jurors’ hands,” he said. Asked how he felt about O’Neill’s evident annoyance at his earlier remarks, Wyatt smiled and said, “I take it as a huge compliment.”
But despite the push by Cosby’s camp — and a public eager for resolution to deliberations that have lasted as long as the trial itself — a quick mistrial call was not expected. Legal experts noted that the judge has a lot of latitude in keeping deliberations going.
“The judge doesn’t have any obligation to accommodate the defense,” said Lisa Houle, a former Los Angeles County prosecutor based in the South Bay. “I don't know any legal authority that would allow them to call the shots and have the judge call it quits.”
She said jurors would have to come back and say they’re hopelessly deadlocked for the judge to consider calling a mistrial, and even then he might be reluctant. That said, Houle predicted a mistrial is where the case would probably go — eventually.
“I don't think the jury wants to give up, and there seem to be significant issues” that would prevent a verdict, she said.
Indeed, the jury Friday continued seeking to review testimony, requesting that the judge define a linchpin of the defense’s legal argument.
“What is reasonable doubt? (The definition),” came the jury request.
The question suggested that the panel was mired over whether the defense had cast enough legal doubt on the prosecution’s case.
O’Neill then read the definition, which included a doubt that would cause a “reasonable person” to “hesitate before acting on a matter of importance” as well as a doubt that was not “manufactured to avoid the carrying out of an unpleasant duty.”
The jury also requested that the judge read aloud portions of deposition testimony from the trial involving Cosby’s past purchase of Quaaludes to facilitate sex with women.
“Was it in your mind you were going to use the Quaaludes for young women, plural, that you were going to have sex with?” a questioner had asked.
“Yes,” Cosby had said in the deposition, adding that Quaaludes “happened to be the drug that young people, kids were partying with, and I wanted to have it just in case.”
It was the first significant request by the jury to review a piece of testimony that did not specifically concern the night of the Constand encounter, and it suggested that jurors were trying to widen their scope as they sought to break their stalemate.
On Friday afternoon the jury continued to expand the breadth of questioning even further — suggesting, to some observers, they weren’t making a lot of headway. The panel requested the testimony of Constand’s mother about a phone call she had with Cosby as well as Constand’s phone records.
That more diffuse focus — combined with the length of deliberations — led some observers to think O’Neill might not send jurors back if they reported another deadlock. The order for a deadlocked jury to resume deliberations, known as the Spencer Charge, was already administered by O’Neill on Thursday morning; a second would be somewhat rarer, especially after that much time had passed.
The defense could also continue to bring case law to the judge to bolster its argument that periods of quiet from the jury should lead the judge to unilaterally call a mistrial, though O’Neill has thus far rejected the precedents presented to him as not sufficiently similar to this trial.
O’Neill continued to press the jury to find a verdict.
“I hope you are well-rested,” he told jurors. “Your form of questions does indicate you are deliberating, which is exactly what the court [wants].”
Later in the day, McMonagle renewed his call for a mistrial after the jury asked for a read-back of secondary testimony from Constand’s brother-in-law.
“We had a 36-hour trial, and this is the 52nd hour” of deliberations, McMonagle said. “This isn’t a 900-count indictment on white-collar crime. This is an aggravated sexual assault case. It’s simplistic. It took five days of eight-hour testimony. It’s not complicated.”
“It seems like it’s very complicated,” shot back O’Neill. “They have indicated to the court they’re deadlocked. Do you have any information that I don’t have about what’s going on in the room?”
“I don’t think they know they can go home” without a verdict, McMonagle said.
O’Neill said, resignedly, he would consider a precedent the defense cited concerning mistrials but didn’t sound like he would be persuaded.
“I feel your passion, I understand where you’re coming from. I will look at your case,” he said.
Before he dismissed the jurors for the day, O’Neill told them, “I see nothing but hard work, fidelity to your oath.” But he also left the door open for them to raise any objections about deliberations to him.
“We’ll do that tomorrow,” he said. “Let’s get you settled in … and talk about anything that I need to know at that time.”
7 p.m.: This article was updated with additional comments from Judge Steven T. O’Neill and defense attorney Brian McMonagle and to report that the jury will resume deliberations Saturday.
4:15 p.m.: This article was updated with comment from a legal expert.
3:05 p.m.: This article was updated with more questions from the jury and other details.
12:45 p.m.: This article was updated with more details on the mistrial bids.
4:15 p.m.: This article was updated with comments from Lisa Houle.
12:10 p.m.: This article was updated with additional information on the mistrial motions filed by the defense.
This article was originally published at 11:10 a.m.