PENNSYLVANIA — The names of the jurors who failed to reach a verdict in Bill Cosby’s sexual assault trial have not been made public, but the judge in the case could revisit the issue as early as Monday.
The names remain shielded under a protective order that several news outlets have challenged.
Judge Steven O’Neill advised jurors when the trial ended on Saturday outside Philadelphia, after a week of testimony and 52 hours of deliberations, that they need not discuss the case, even as the public debates whether age, race, gender or other issues separated them.
“It can never be clearer that if you speak up, you could be chilling the justice system in the future if jurors are needed in this case,” O’Neill told them.
Criminal law professor Jody Armour wonders if the bitter divide over social issues that is evident in American politics was at work in the jury room.
“Social attitudes in general affect what happens in criminal trials, in rape cases. We can now wonder if a lot of those kinds of attitudes were at play in … Bill Cosby’s rape case,” said Armour, who teaches at the University of South California.
Cosby, the actor and comedian known as “America’s Dad,” was charged with three felony counts of aggravated indecent assault stemming from Andrea Constand’s allegations that he drugged and violated her at his suburban Philadelphia home in 2004. Cosby, 79, said the encounter was consensual.
Two women jurors looked anguished when they announced the final deadlock, wiping away tears. Other jurors were harder to read. It is not yet clear why jurors could not reach a verdict, or how close they came.
“We get 12 people to agree on sex assault cases all the time, but this is not any case. It’s an old case, it’s a controversial case, it’s a case that involves questions of consent,” said professor Laurie Levenson, of Loyola Law School.
Levenson believes the breakdown of the first Cosby jury is important to know, but perhaps not predictive of how the second trial might go.
“Anything can happen because it’s a new set of jurors,” Levenson said. “The second time around, are they coming with an agenda? Do they want to save Cosby, or do what the first jury couldn’t do, which was convict him?”
In the retrial, District Attorney Kevin Steele could ask the judge to let more of Cosby’s 60 accusers testify or disclose to jurors that Constand is gay. That never came up in her seven hours of testimony. The defense had hoped, if it did, to introduce evidence she had previously dated a man.
“The key to retrying a case is to do it differently the second time, because the defense expects you to do it the same way,” said Constand’s lawyer, Dolores Troiani.
Constand is on board for the retrial. And Steele on Sunday denied a media report that Cosby had ever been offered a plea deal.
Cosby also is battling sexual battery or defamation cases still pending by 10 women in California and Massachusetts. Several of them attended the criminal trial with their layers. The discovery in those cases is underway, but his deposition testimony will remain on hold until the retrial in the criminal case.
Cosby remains free on $1 million bail over the three felony charges. O’Neill could schedule the retrial within weeks.
The Associated Press does not typically identify people who say they are victims of sexual assault unless they grant permission, which Constand has done.