A few thoughts on the Bill Cosby mistrial

After an incredibly long period of deliberation – 52 hours – a Pennsylvania jury recently announced that it could not reach a unanimous decision regarding any of the criminal charges against Bill Cosby involving his alleged sexual assault of Andrea Constand. The judge was forced to declare a mistrial and the prosecutor has already declared that their office intends to retry the case with a new jury. Of course, this now begs the questions: 1) what went wrong for the prosecution, and 2) what could they do differently to get a conviction? Matthew Galluzzo, a criminal defense attorney and former Manhattan sex crimes prosecutor, offers a few thoughts on the subject.

First and foremost, sex crimes cases involving acquaintances are among the most difficult cases in which to secure convictions. Some talking heads in the media seem to think that this case should have been an easy conviction but that presumption simply belies the reality of what happens in criminal court. These types of cases are inherently challenging for prosecutors for several reasons that were at issue here.

To begin, these “he said/she said” sexual assault cases depend enormously on the credibility of the accuser, and the defense attorneys did everything that they should have done as advocates for their client to raise doubts about Ms. Constand. First, they highlighted her inconsistent statements to law enforcement about the incident. Nothing torpedoes a sex crimes case faster than inconsistent reports from the accuser. After all, inconsistent statements also tend to be made more often by liars than by those telling the truth. Inconsistent statements by the complainant suggest that the complainant has little respect for the truth and thus cannot be trusted to tell it at trial under oath. They also tend to suggest that the complainant has a nefarious agenda that causes him or her to “tailor” her testimony to her audience be perceived more favorably or to increase his/her chances of success. Understandably, defense attorneys always pounce on evidence that suggests those things and they did in this case. Specifically, they argued (as they should have) that the complainant was an attention-seeking, money-grubbing liar who had attempted to minimize her prior contacts and relationship with Cosby when initially making her report to law enforcement in an obvious effort to be perceived more favorably by them. They further argued that she had had a consensual romantic relationship with Cosby and only made a report to police when she did not profit from the relationship in the way that she had hoped.

The other obvious problem for the prosecution in this case is that the complainant did not behave as a perceived “normal victim” after the alleged incident. Rather than immediately run to the police after the incident, or break off all contact with Cosby, Ms. Constand communicated with him frequently and even allegedly gave him a Valentine’s Day gift. Oftentimes, jurors in these cases say to themselves, “well, if he had done that to me, I would have gone straight to the police and never spoken to him again.” Truthfully, though, most victims of sex crimes never report the incidents to law enforcement, let alone report them immediately. When the parties to the case are acquaintances, then it is more typical, in fact, for there to be a delay in the report and/or some gradual unwinding of the relationship prior to the filing of the police complaint. This is especially so in a case like this one in which the facts of what happened may have been initially confusing and unclear to the victim. Unfortunately, misconceptions about “typical responses” from sex crimes victims are widespread. The prosecution did its best in this case to address this problem by presenting an expert witness to testify about the psychology of sex crimes victims (which can cause delays in reports or behavior that might seem counterintuitive to some), but it is likely that these issues nevertheless caused some doubt in the minds of the jurors.

To be sure, there was powerful evidence in favor of a conviction in this case, too. By most accounts, Ms. Constand demonstrated uncommon poise under cross-examination. Observers (including an alternate juror) also remarked that the testimony of the complainant’s mother about Cosby’s apology to her was particularly moving and powerful. Mr. Cosby’s statements to law enforcement and in his deposition were fairly damning; in the least, they were highly suspicious. It is head-scratching to argue, as Cosby’s lawyers did in this case, that a relationship can be consensual but still somehow involve drowsiness-inducing pills to initiate the first act of sexual contact.

Finally, and perhaps most importantly, was the testimony of another of Cosby’s alleged victims. She testified that Cosby had abused her in practically the exact the same way, supporting the argument that Cosby had used his unique modus operandus to victimize Ms. Constand. It will be interesting to see whether the trial judge in the second trial will permit more (or fewer) such witnesses to testify at the retrial. The prosecution could conceivably call as many as a dozen such witnesses to testify to this modus operandus, but were prevented from doing so by the trial judge (who must exercise some discretion in deciding how many such “prior bad act” witnesses may testify in a criminal case). One suspects that this could very well make a difference at the retrial. If the prosecution is permitted to call, say, three or four witnesses (instead of one) at the retrial, then the chance of a conviction on the retrial will just simply skyrocket. Of course, a conviction obtained this way could get overturned on appeal as having been an abuse of discretion by the trial judge. The concern among appellate judges would be that Cosby was convicted for a specific crime based not on the evidence that he abused Ms. Constand, but based on evidence that he abused someone not at issue in the trial.

Needless to say, it is entirely possible that some jurors were reluctant to convict an old man in ill health that was once one of the most beloved entertainers in the United States. Frankly, it can be baffling to see Cosby supporters standing outside the courtroom cheering him on during the trial, despite the fact that in the very least, in carrying on questionable affairs with dozens of women (if not outright raping them), Cosby has clearly demonstrated himself to be a terrible husband, tremendous phony, and generally lousy and hypocritical human being (if not much much worse, i.e. a serial rapist). Even his most ardent supporters would have to acknowledge that in reality Cosby is hardly the wholesome family man that he tried to present to the public at the height of his career. Celebrities don’t always benefit from residual admiration, however. Indeed, one can point to the case of Aaron Hernandez, the exalted New England Patriots football star who was convicted of murder on his “home turf” of Boston, as a recent example. Moreover, it is unlikely that the entire jury truly ignored everything it had heard in the media and on TV about Cosby’s dozens of accusers, despite the judge’s specific instructions not to consider those things. To put it plainly, Cosby’s notoriety might have worked both for and against him in this case. Certainly, there must have been at least one juror that was unimpressed by Cosby’s celebrity status and wanted to convict him. (Note: an anonymous juror recently revealed to the New York Post and other sources that ten out of the twelve jurors wanted to convict on two of the three criminal charges).

One of the interesting things about trying cases that the general public doesn’t necessarily realize is just how big of a difference jury selection can make in the outcome. In fact, a different jury might have convicted or acquitted Cosby on the same evidence, plain and simple. Selecting a favorable jury through voir dire is probably one of the most difficult skills for a trial lawyer to master (especially in federal court, where attorneys are not generally permitted to ask direct questions of potential jurors). Few, if any, honest practitioners would claim to have truly mastered that aspect of a trial. The simple fact is that it is actually very difficult to formulate useful opinions of potential jurors after learning only superficial things about them (their education level, their famliy situation, their employment, etc.) and hearing them speak for less than a minute. It is even doubly difficult to predict how a potential juror will respond to certain evidence and arguments. Trial lawyers oftentimes rely upon prepared assumptions and shortcuts in selecting their jurors and those sorts of assumptions are routinely wrong. Assuming, for example, that women will be better prosecution jurors in sex crimes cases is simply a losing strategy for a prosecutor (if anything, a jury full of men might be better for prosecutors in many such cases). The truth is that above all else, prosecutors need jurors with agreeable dispositions. After all, the real challenge for a prosecutor is not just in proving the case but in getting twelve people to agree on the defendant’s guilt. Sadly, when it comes to group decision-making, personalities within the group are oftentimes more important than the thing being decided (or in the case of a trial, the evidence). Individuals with strong personalities are more likely to take contrarian positions for the sake of being contrarians, and a diverse group of strong personalities is unlikely to agree on anything. An article in the New York Daily News offered this interesting tidbit about the Cosby jury from an alternate juror: “We had a hard time deciding where to go for dinner,” he said. “We had so many personalities in the room.” In a nutshell, during the jury selection for the Cosby retrial, the prosecutor might want to more carefully focus on whether the jurors he/she selects to be on the jury can “play nice together,” rather than just whether he/she thinks the individual will find Cosby guilty. Of course, the prosecutor should exclude any potential jurors that demonstrate obvoius bias in favor of Cosby or any hostility towards the criminal justice system, but beyond that, the key in selecting a jury (from a prosecutor’s perspective) is to select a good group of twelve, not a group of twelve good individuals.

To put this idea in different terms, consider the old maxim that “every happy family is alike, and every unhappy family is unhappy in its own way.” A prosecutor wants a “happy family” that can agree on things. This requires a jury of twelve people that can listen and be open-minded to each other’s ideas and work together as a team to reach a unanimous verdict (after all, a “hung jury” is basically a win for the defense). A defense attorney, on the other hand, tries to assemble a jury that is going to be chaotic (“unhappy”) when deliberating. Strong and outspoken personalities, arrogant and condescending individuals, overly sensitive people, and stubborn people often make great selections as jurors from the perspective of defense attorneys. These types of people tend to cause disagreements in group discussions, become intractable, or refuse to change their mind as a result of perceived “personal attacks” by other jurors.

In any event, the retrial will be interesting to professionals in the criminal justice business. Prosecutors oftentimes do better at retrials, as they have the opportunity to correct their perceived mistakes and present evidence differently. On the flip side, every time a prosecution witness testifies, it creates the possibility that they will make mistakes (i.e. inconsistent statements) under oath upon which defense attorneys can seize. Interestingly, the judge has ordered the jurors not to discuss many of the specific aspects of the deliberations (including the juror vote counts), so it will more difficult than usual for the prosecution to gage its performance. (Note: it is quite common for these sorts of questions to be asked of the jurors following mistrials. Indeed, the “holdout juror” in Etan Patz’s first trial – which ended in a mistrial – gave extensive press interviews about the jury deliberations). That being said, an anonymous juror recently told the press that ten of the twelve jurors wanted to convict Cosby on two of the criminal charges, which strongly suggests that a retrial is more likely to result in a conviction than an acquittal.

For what it’s worth, the author of this post is a criminal defense attorney and former sex crimes prosecutor, and has never lost a sex crimes trial in his career. You can read about some of his sex crimes acquittals here.