Cosby Mistrial: The Right Call

The Judge declared a mistrial in the Bill Cosby trial today. I think it was the right call, given the inconsistencies in the accuser's testimony:

The defense seized on inconsistencies in the version of events Ms. Constand gave when she went to the police the next year, and statements she made later on: She said the assault took place in March 2004, after dinner at a restaurant, then said it occurred earlier, unconnected to the restaurant outing; she said the incident had been the first time she had been alone with Mr. Cosby in his home, then said it was the third time, and that she had rebuffed his sexual advances the first two times; she said she had minimal communication with him after the incident, then acknowledged many contacts.


From the New York Times on day 1 of the trial:

[P]hone records, not previously disclosed publicly, show that Ms. Constand called Mr. Cosby 53 times, some calls lasting half an hour or more, in the months after the encounter in 2004 at his home in Cheltenham, a suburb of Philadelphia. Yet when she went to the police nearly a year later, Mr. McMonagle said, she told them that she had not tried to contact him.

As to excluding the testimony of all but one of his other accusers: I would have excluded all of them, but the jury had no questions about that person's testimony, so it doesn't seem to have been much of a factor. I think calls to repeal the statute of limitations on sex crimes are off base and just attempts at lobbying by victims' rights groups who are using the Cosby case to further their particular agendas.

I also think the DA's announcement that the state would seek a retrial was premature. First he doesn't even know the jury's position. If it was 11 to 1 for acquittal, a retrial would be a waste of resources.

“We will take a hard look at everything involved and then we will retry it,” Mr. Steele said, adding that Ms. Constand “is entitled to a verdict in this case.”

A hung jury is a verdict, just like guilty and not guilty are verdicts.

Ms. Constand got her verdict: A mistrial. It means the jury did not unanimously agree the prosecution proved its case beyond a reasonable doubt. That's all this trial was about: whether the state proved the charges involving Constand beyond a reasonable doubt. Unless all 12 jurors agree it did, the state failed. A hung jury/mistrial is a legitimate verdict.

In my view, even if it turns out the jury's position was 11 to 1 for conviction, there should be no retrial. The prosecution took its best shot and misfired. Enough. Bill Cosby is 79, legally blind, and his professional reputation has been destroyed. He already settled the civil suit with Constand. The other civil suits against him will continue. Everybody knows he's got deep pockets and wants a piece of his pie. There's nothing that can be done to stop them from trying, but the civil arena is where this should end, not in a criminal retrial.

One last thought: Not having followed the case closely, I always assumed the charge involved a date-rate drug. Turns out it was about quaaludes or benedryl, neither of which are date-rape drugs. Qaaludes (Rorer 714 and later Lemmon 714) were widely prescribed throughout the 70's and early 80's and widely taken by lots of people (for recreational as well as medical purposes). Ronald Reagan signed legislation changing their classification to schedule I in 1984, which banned doctors from prescribing them. (Pharmaceutical companies actually stopped manufacturing them in the U.S. in 1981.) Cosby reportedly received 7 prescriptions in the 1970's from an LA OBGYN who is long deceased. He said they were gone by 2002. The alleged incident with Constand occurred in 2004.

Without proof, which the state didn't present, I think a jury would be hard-pressed to find he still had pills from his 7 prescriptions 25- 30 years later, when the incident with Constand occurred. Not to mention, the pills would have expired so long ago, they could have lost much of their potency by 2004.

More importantly, Constand and Cosby both said the pills he gave her were blue. The Quaaludes prescribed in this country were not blue. They were white, with 714 stamped on them. They came in different strengths (up to 300 mg). Cosby said the pills were long in shape and he broke them in half. Quaaludes were round. (They didn't have generics for quaaludes or most other drugs in the 70's.)

What's blue and long? Hundreds of pills. There are 1.0 mg blue elliptical Xanax. The Xanax are scored for easy breaking in half. There were blue elliptical Halcion (which I had no idea were still available here, as they were banned in the UK in 1991, and I haven't seen them since the early 80's, but their manufacturer's prescribing brochure is dated 12/16, so I guess they are.)

So while it's unlikely there will ever be a firm identification of the pills Cosby gave to Constand, I think it is even more unlikely they were Quaaludes.

Quaaludes made people more uninhibited, which may have made people feel more comfortable about having sex, but that's hardly the same thing as forcing someone to have sex. Quaaludes were not a date-rape drug. The most dangerous thing about them was probably attempting to drive (which most people had the good sense not to do.)Quaaludes are an indelible part of the 70's, remembered fondly and nostagically by many of those who took them back then. Most reporters today are too young to have ever encountered a Quaalude, so their reporting comes from other reporting, not personal experiences.

More importantly, and back to Cosby, there was never any evidence Cosby gave Quaaludes to Constand or the other accuser who was allowed to testify. As his lawyers had unsuccessfully argued in trying to keep the old deposition about his Quaalude history from the 70'sout of the case:

Cosby confessed to getting quaaludes and giving them to women other than Constand and the other accuser permitted to testify and, as such, is unrelated to the trial.

“Any discussion of quaaludes would only divert the jury away from its duty of weighing the evidence as to Ms. Constand, the only alleged victim,” his lawyers argued. “Quaaludes have not been available in this country for nearly two decades. They were part of a bygone era where the use of drugs for recreational purposes and in combination with casual sex was part of the culture.”

Cosby also denied giving Quaaludes to anyone without their permission or to force them to have sex. (He said he hoped the pills would make the women he was involved with want to have some kind of sexual encounter with him.) And he denied giving Quaaludes to anyone after 2002.

In the deposition, he said that at one point he gave Quaaludes to a woman named Teresa and that she acted like she was “high.” He also said he hadn’t given them to anyone between 2000 and 2005, and that he did not have any other pills that would have similar effects to those of Quaaludes.

...Cosby said in deposition testimony read Thursday that the three pills he gave Costand were the decongestant Benadryl, and that he cut one pill in two and then gave her another half pill.

Cosby turned over some pink benedryl to the police in 2005 voluntarily. But he also said in the deposition the pills he gave Constand were blue. Just like there were no blue quaaludes, there were no pink quaaludes. Nor was there any suggestion Cosby obtained pills from anyone other than a licensed physician, so whatever bootlegged Quaaludes may have been (or are still) floating around, it was never alleged they made their way to Cosby.

This trial does not speak to the many claims of other accusers. I am not familiar with their claims. But from reading many accounts today of this trial, I think the jury's refusal to convict as to Constand was the right call. I also think the media reporting is biased. Most people (including me, until I began reading dozens of articles today) believed Cosby was accused of and admitted giving Quaaludes to Constand when that's just not the case. His deposition about Quaaludes involved other people, decades prior to the incident with Constand.

What's unfortunate is that those who are unhappy with this verdict will seize on it as a reason we should change our laws on sexual assault and ban more drugs from being prescribed. Neither is called for by this verdict. This verdict was only about Constand and the state's failure to prove her allegations beyond a reasonable doubt. Quaaludes, like bell bottom jeans and Studio 54, are no more than artifacts of the 70's.

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  • Display: Sort:
    Great post (5.00 / 1) (#1)
    by McBain on Sat Jun 17, 2017 at 09:42:28 PM EST
    My life was pretty boring during the 70s... no Quaaludes, no Studio 54.  

    I was never a big Cosby fan.  I didn't listen to his records and thought The Cosby Show was overrated.

    I agree the media reporting has been biased but what else is new?

    I do not thank a jury's (5.00 / 1) (#3)
    by oculus on Sun Jun 18, 2017 at 01:11:27 AM EST
    failure to reach unanimity is a "verdict" in a legal sense. The jury failed to render a verdict.

    Yes, hung jury (none / 0) (#12)
    by KeysDan on Mon Jun 19, 2017 at 10:40:22 AM EST
    ...unable to reach a verdict.

    For me, a retrial (none / 0) (#13)
    by McBain on Mon Jun 19, 2017 at 12:23:31 PM EST
    for a case like this feels like double jeopardy.  If something happened early on causing a mistrial that would be different but the jury heard all the evidence, deliberated and wasn't able to convict.   They should leave Cosby alone.

    That is inaccurate (4.00 / 2) (#14)
    by nyjets on Mon Jun 19, 2017 at 02:57:13 PM EST
    They were unable to reach a verdict either way. In no way is it double jeoprady.

    Nothing in my post was inaccurate (none / 0) (#17)
    by McBain on Mon Jun 19, 2017 at 09:56:09 PM EST
    Perhaps you need to read it again.

    sorry (none / 0) (#18)
    by nyjets on Mon Jun 19, 2017 at 10:53:23 PM EST
    I mistyped. I meant that hung juryn was not double jeopardy.

    OK, no worries (none / 0) (#19)
    by McBain on Tue Jun 20, 2017 at 10:56:40 AM EST
    It will be interesting to see if a retrial will yield a different result.  I haven't heard what the vote breakdown was yet.  

    One of the altertate juror sd. (none / 0) (#20)
    by oculus on Tue Jun 20, 2017 at 11:21:13 AM EST
    he "probably" would have voted guilty. He was very taken w/the testimony of the mother of the victim.

    I have a lot of aloha for 60 women who ... (none / 0) (#2)
    by Donald from Hawaii on Sun Jun 18, 2017 at 12:03:38 AM EST
    ... stepped out from the shadows to accuse one of Hollywood's most formidable, respected and even revered individuals of gross personal misconduct.

    That said, I agree with the rest of your assessment. The prosecution didn't even come close to proving its case beyond a reasonable doubt. Do I believe that something happened between Bill Cosby and Andrea Cortand? Yes, I do, given the legal settlement he entered into with Ms. Cortand in response to her civil complaint. But I don't think it was as characterized by the prosecution.

    Regardless, if we take Cosby's defense at his word, then he's basically copped to cheating hundreds of times on his wife with the use of Quaaludes. And as a result, his once-impeccable public reputation as "America's Dad" is now in ruins.

    And maybe this belated rendezvous with karma is the price he must pay for his alleged transgressions.

    Great post, Jeralyn. Thank you.

    If There Were 60 Accusers, (none / 0) (#4)
    by RickyJim on Sun Jun 18, 2017 at 09:14:47 AM EST
    why weren't there at least 60 charges?  That way all the evidence would have gotten in.

    The statute of limitations (5.00 / 1) (#7)
    by Peter G on Sun Jun 18, 2017 at 11:25:31 AM EST
    barred prosecution of any other charges.

    Read the linked reportage (none / 0) (#5)
    by Towanda on Sun Jun 18, 2017 at 10:58:38 AM EST
    and this question is answered for you.

    The Only Thing I Could Find (none / 0) (#6)
    by RickyJim on Sun Jun 18, 2017 at 11:16:22 AM EST
    Ms. Constand took the witness stand as a proxy for all of Mr. Cosby's accusers, many of whom told stories similar to hers. None of the other women's accusations have resulted in prosecution -- in many cases, too much time has passed -- leaving hers as the only formal test of Mr. Cosby's guilt and, in the eyes of many of them, the only chance for justice.

    Are they saying that the statute of limitations had expired in every one but the Constand case?  It sounds strange that with 60 accusers, plenty of charges weren't filed years ago.


    Yes. (none / 0) (#9)
    by Towanda on Sun Jun 18, 2017 at 10:32:16 PM EST
    Cosby is an old codger.

    Inconsistent testimony by accuser (none / 0) (#8)
    by RCBadger on Sun Jun 18, 2017 at 05:10:25 PM EST
    From what I understand, that's actually supposed to bolster her credibility.  I think it's the idea that she was so traumatized she couldn't remember anything and that things are being recalled piecemeal.  That's all rape accusers, not just Ms. Costand.  

    I wonder what the breakdown of the jury in regards to the verdict was too.

    a few minor points (none / 0) (#10)
    by nyjets on Sun Jun 18, 2017 at 11:34:39 PM EST
    The reason they want to change the statue of limitations of rape is the presence of DNA evidence. That does make a lot of sense.
    Also, a hung jury is NOT the same as a not guilty or guilty verdict. Not even close. The prosecution should have the right to refile and retrial the case.
    Also, I think you are being unfair to the other accuser . While I am willing to admit that a few might want money. when you consider how hard it is to prove rape, the action of some of the accuser are more than understandable.
    Also, the age and condition of BIll CObsey is irrelevant. IF the prosecution has evidence, he should prosecute.

    The prosecution does not (5.00 / 1) (#11)
    by oculus on Mon Jun 19, 2017 at 10:13:54 AM EST
    re-file a case criminal case following a jury's failure to reach a verdict. Operative pleading has not been dismissed.

    This article states the judge gave (none / 0) (#15)
    by oculus on Mon Jun 19, 2017 at 09:26:31 PM EST
    the required instruction to the jury after the judge declared s mistrial. Questioning that assertion. Also, is it a breach of professional conduct rules in PA state court to publicly discuss evidence the trial ruled inadmissible?  This would be a breach in CA.

    Source is Hollywood Reporter (none / 0) (#16)
    by oculus on Mon Jun 19, 2017 at 09:31:43 PM EST
    Interesting interview with Cosby juror (none / 0) (#21)
    by McBain on Thu Jun 22, 2017 at 12:27:03 AM EST

    In an exclusive interview with ABC News, a juror in the Bill Cosby sexual assault case said that after dozens of hours of grueling deliberations in a tiny room, 10 of the 12 jurors agreed he was guilty on two counts. On a third count, only one of the jurors believed he was guilty.

    Here's where it gets strange....

    The jurors initially voted overwhelmingly, in a non-binding poll, to find the entertainer not guilty on all three counts of aggravated indecent assault, the juror told ABC News on Monday...

    ...Dan Abrams, ABC News' chief legal affairs anchor, found it "astonishing" that the juror said so many of the jurors changed their vote from innocent to guilty, and said he's never heard of a similar situation in such a high-profile case. However, he added, taking an initial vote is merely part of the deliberation process.

    Assuming this is true, I wonder what changed their minds?  

    "Twelve Angry Men." (none / 0) (#22)
    by oculus on Thu Jun 22, 2017 at 12:36:17 AM EST
    Another juror tells a somewhat different (none / 0) (#23)
    by McBain on Thu Jun 22, 2017 at 04:32:03 PM EST
    The juror, who spoke on condition of anonymity, told NBC affiliate WPXI that votes on whether Cosby was guilty of sexual assault were either 7-5 or 5-7, describing it as a "true deadlock." There was one tally of 10-2, but some of those jurors switched their votes, the juror said.

    I read that they took an intitial poll (none / 0) (#24)
    by sarcastic unnamed one on Thu Jun 22, 2017 at 07:17:37 PM EST
    without much, if any, discussion.

    But afterwards they discussed each charge in detail and that changed a lot of minds.


    Isn't it common (none / 0) (#25)
    by McBain on Thu Jun 22, 2017 at 07:52:33 PM EST
    to take an initial poll without much discussion?  What the first juror to come forward said about 12-0 turning into 2-10 seems odd.  Keep in mind first reporting is often incorrect.