The judge in Bill Cosby's sexual assault trial here rejected another defense motion for a mistrial over a deadlocked jury, instead sending the jurors back to continue deliberating for a fifth day on Friday.
About 20 minutes after the jury entered the jury room in the morning, they requested to ask questions of the judge, the seventh time they've done so since they got the case on Monday evening.
Meanwhile, Cosby's defense team called for a mistrial — their second motion since the jury announced it was deadlocked on Thursday at lunchtime – arguing that jurors have deliberated long enough and would not come to a unanimous verdict.
Judge Steven O'Neill denied the motion, after first asking Cosby if he consented to his attorneys' move. "Yes,” Cosby answered. O'Neill warned Cosby that if he does declare a mistrial later, and prosecutors retry the case, Cosby cannot then argue a double jeopardy defense.
The judge then read to the jury the definition of "reasonable doubt." They also requested he re-read excerpts from testimony about what Cosby said about his use of the now-banned sedative Quaaludes to give to women he sought for sex. O'Neill read from Cosby's 2005 deposition in a civil suit accuser Andrea Constand filed against him.
“Question: When you got the Quaaludes, was it in your mind that you would use these Quaaludes to give to women you wanted to have sex with? Answer: Yes. Question: Did you ever give the Quaaludes to women without their knowledge? Answer: No. Question: Did you know at that time that it was illegal for you to dispense those drugs? Answer: Yes.”
Jurors’ eyes were glued to their projection screen as the reading continued. Cosby sat back in his chair, expressionless.
Then the judge sent the jury back to the jury room to continue deliberating.
Later, attorney Gloria Allred, who presents dozens of other Cosby accusers and has been attending the trial, interpreted the jury's interest in the Quaaludes question.
"It's good for the prosecution," she said, flatly.
Cosby spokesman Andrew Wyatt telegraphed Thursday night the defense move for a mistrial, telling a mob of reporters on the courthouse steps the judge should call a mistrial even while the jury was still deliberating.
“We’re in the 40th hour and we can only imagine the emotional and physical toll this has taken on the jurors and we’re just hoping that the judge, if they don’t have a verdict by now, he would release them, and just say that this thing is a deadlock,” Wyatt said.
The jury's move on Friday morning sent the speculation and tension in the courthouse, already high following a series of 12-hour days of deliberations with no verdict, into overdrive. The seven men and five women on the jury told the judge on Thursday before lunch that they were deadlocked on all three counts; O'Neill sent them back to try again.
"Very often, juries that are deadlocked are able to come to a verdict on Friday afternoons or the day before a holiday," says New York criminal defense lawyer Stuart Slotnick, who's been following the trial. "It is a phenomenon that occurs across the country. Psychologically, the jurors feel that they are at the end of the week and (then) pull the trigger."
Maryland trial attorney Steve Vinick, who's also been following the trial, thinks it's looking more likely the deadlock will continue, thus leading to a mistrial.
“They have already been deliberating for (four) days," Vinick says. (The jury has deliberated more than 40 hours since Monday.) "If they are hopelessly deadlocked, I don’t think anything else is going to change that."
Cosby, 79, is charged with three counts of aggravated indecent assault stemming from an encounter with Constand at his nearby home in 2004. She says he drugged and molested her as she lay helpless on his couch. He says they were lovers and the encounter was consensual.
If he is convicted on even one count, he faces spending the rest of his life in prison.
The jury must be unanimous in voting either to convict or acquit. The jury could potentially vote to convict on some counts and acquit on others but that would likely be an issue for appeal. Or the jury could remain deadlocked and unable to come to a unanimous decision, which would give O'Neill little choice but to declare a mistrial.
District Attorney Kevin Steele, who ran for office promising to pursue Cosby on the long-abandoned case, would then have several months to decide whether to retry Cosby. It took 18 months for these charges to come to trial; another trial would likely take as long, thus making the case even older than 13 years.
It's not clear what the jury's current vote is: Is there only one holdout or more than one? Are the majority for acquittal or for conviction?
"The jury can always write a note to the judge what the vote is, but the courts prefer not to have that information," Slotnick says. "Sometimes the jury will disclose the vote to demonstrate that the jury is far apart or that they are very close but there is one holdout. Frequently after high-profile cases, some of the jurors speak to the press and disclose all."