It's Time to Accept That Bill Cosby Probably Won't Be Convicted

A sexual assault prosecutor from the Clinton administration explains why the comedian will likely never see the inside of a prison cell.

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Jun 19 2017, 10:33pm

(Photo by Bastiaan Slabbers/NurPhoto via Getty Images)

After 52 hours of deliberation, jurors in the Bill Cosby sexual assault trial declared Saturday that they were "hopelessly deadlocked" about whether the comedian drugged and molested Andrea Constand in 2004. Judge Steven O'Neill promptly declared a mistrial, which inspired the comedian's spokesman to claim that "Mr. Cosby's power is back."

Well, not exactly.

Despite the obvious emotional toll that comes with providing seven hours of testimony, Constand has already made clear she's willing to do so again, and a new trial is expected to take place within the next several months. Meanwhile, even though the former sitcom star has expressed the desire to get back into showbiz, Cosby's reputation is almost certainly damaged beyond repair.

But what's at stake is much more weighty than a star on the Hollywood Walk of Fame—where Cosby's name remains, by the way. While Constand is one of over 60 women to accuse Cosby of sexual assault, she's the only one still in a position to press criminal charges, and so serves as a sort of proxy for dozens of other accusers. Jurors were instructed to focus solely on the allegations by Constand and one other alleged victim Judge O'Neill allowed to take the stand at trial, but it's safe to say a "not guilty" verdict (or even another mistrial) could trigger feelings of hopelessness among survivors nationwide—assuming this first trial hasn't done so already. If a man can survive public, eerily consistent accusations by so many women over such a long period of time, other victims might reason, what chance do they have?

District Attorney Kevin Steele tried to head off that nightmarish scenario by quickly making clear this weekend he plans to take Cosby back to court. But it remains to be seen how long the prosecutor can stay on Cosby's case. John Rogers, a criminal defense attorney in Los Angeles, told me he suspects the defense will eventually file a motion on the basis of "judicial resources and economy," arguing that the whole thing isn't worth doing again because it's extraordinarily unlikely new evidence will be admitted the second time around.


Check out our interview with Hannibal Buress, who helped expose Bill Cosby's sexual assault allegations to the wider world.


"In other words, why should the court and tax payers go through another trial and spend all this money when the outcome will be the same—it's a waste of time," Rogers said.

Meanwhile, Shan Wu, a former sex crimes prosecutor for the Department of Justice and current criminal defense attorney in Washington, believes the case probably will proceed back to trial—but he doesn't expect the second one to go much better than the first. Here's what we talked about.

This interview has been lightly edited and condensed for clarity

VICE: What options do prosecutors have going forward, given this disappointing result from their POV?
Shan Wu: Very limited options. I think it was a hasty decision by the prosecutor to pronounce instantly that they planned to retry the case. Any decision to retry the case where the jury is deadlocked is a tough decision to make, and it has to be weighed carefully and evaluated in terms of strategy, evidence, and most importantly, if you're able to learn what the voting breakdown was on the jury—that's really critical to know. Because, for example 11-1 in favor of acquittal or 11-1 in favor of conviction obviously are vastly different messages. And also, on the other hand, 5-5, 6-4, [that] kind of thing is also sending a message that, Hey, we really did not convince anybody of this.

In this case, it might be that they never learned that, because the judge apparently told the jurors to stay mum. But usually one would really want that information. I thought it was particularly puzzling that, after the prosecutor announced literally the moment they filed out of the courtroom that they would retry it, that later at the press conference he announces his plan to evaluate the evidence and go over everything before they retry it. What's the point of doing that?

Well, can't they do it differently this time around? Get more women on the stand, or get more parts of Cosby's deposition—the one in which he admitted to using Quaaludes to sleep with women—admitted as evidence?
The answer is not very much. They are very constrained by the [previous] legal rulings in terms of how many other accusers could be heard from. The judge was pretty conservative with that, only letting one other one in. But first, there's nothing different legally that would cause the judge to change their mind. Number two, I think the judge and the prosecutor should be cognizant of the fact that were the judge to change that ruling and allow in more accusers—and if they got a conviction—that would be a huge, ripe issue on appeal.

What about the defense? They don't have that issue and could admit more evidence without having to worry about an appeal, right?
The prosecution has this double-edged sword of if they get that ruling [to admit more evidence the second time around], it's always going to be appealed (if he's convicted). So I think that's very problematic for them. Meanwhile, the defense will work to get in more evidence that would undermine the credibility or believability of the complainant. One thing we've read about this issue was that, supposedly, a friend or roommate of [Constand] had overheard some statements of her saying it might be good to set up someone rich or famous. That kind of statement is, of course, horribly damaging for the prosecution's case,. But from the defense point of view, they'd push very hard for that because it goes to the [issue of] credibility. And in this kind of he said, she said, the credibility is the entire case.

The difference is if the judge lets that [evidence] in to get an acquittal, there's no appeal from an acquittal. There's no one to challenge the judge's mistake of letting that in.

In a re-trial, do you imagine we'd see a different rhetorical strategy, or essentially the same opening and closing arguments?
I don't think they can change very much. I mean, let's look at the defense side first: The only thing they can do is attack the complainant's credibility. That's the whole case. So they really just have to stick with that, and they have some stuff to work with, there are some inconsistencies from her, so that's not going to change.

Could prosecutors still offer a plea deal?
Yes, technically that is a possibility, and that's often something that happens in a deadlocked case: the government reconsiders and says, "We don't really want to put everything to the flip of the coin here, so we're willing to offer some type of more generous plea deal." Maybe in light of his age, lack of record, [they'd agree on] no jail time, something like that. That's theoretically possible, and it's possible the defense could consider something like that.

Practically, I think the answer is no. The prosecutor is stuck with this decision: He campaigned on this case, and I think he's embarrassed that it was a hung jury. I don't think they're going to offer a significantly better deal. I think they want a felony, they [almost] certainly aren't going to promise no jail time. So it's really unlikely that Cosby's team would take a deal of any kind. I think for him, this is a My legacy, my entire reputation kind of case. Which, by the way, will have enormous repercussion on the civil suits. Because the civil suits, if he pleads guilty criminally, they would be able to have a legal argument that certain types of the conduct he's already admitting to [under a] higher standard of proof [have been proved]. So his side is locked in, they just can't take any guilty plea, it would be disastrous, financially, on the civil side.

Is there a limit to how many times this can be tried?
Theoretically, it could happen as many times as [prosecutors] want, though it'd be like Groundhog Day. I think practically, in my experience, it would be very rare to try a case a third time after two hung juries. And it's fairly rare to do that with the first hung jury. It's hard for the government: [The case is] old, and it's 100 percent he said she said, there's no forensic evidence or anything like that. The cases I've seen tried several times tend to be murder cases.

How rare is it to have an alleged sexual assault victim who testified for seven hours be willing to go through that a second time?
That makes a lot of sense that that would be a factor, but I think the victims that are willing come forward and to go through with it the first time are committed to that and are willing to go through it a second time. When I was a sex crimes prosecutor that was a very big factor for us and that is something which, again, I'm a little surprised at the haste with which the prosecutor announced his decision, but maybe he already talked with the complainant about it and said: "No matter what, we're going to retry if there's a hung jury." But usually, that's a big factor in the government's decision, that this is a lot of stress on the complainant. And the conversation that I would have with the complainant in this situation would probably be along the lines of, "You did a really courageous thing coming forward,. I's a hard case, as we know, and this jury worked really hard. They were pretty conscientious about it—it didn't seem like they were dismissive or biased, and I just don't know if I could recommend going forward."

How do you go through this again? I don't see any indication we're going to get a different result.

As an outsider, it seemed like kind of the opposite: That a prosecutor could hope for a better jury, one that doesn't ask what the meaning of "reasonable doubt" is days into deliberations, like this one did.
I see why you say that, but what that indicates to me is they were having an impasse problem. Which means usually that means that somebody in the minority, maybe a single holdout or a couple people, are just stubbornly, steadfastly refusing to convict, because they're just saying, "I have reasonable doubt, I have reasonable doubt, I'm not convinced." and the rest of the jury is going, "Please, look at the evidence!" trying to convince them. And that's when they say to the judge, "Could you again define reasonable doubt?" because one or the other side of that jury pool thinks the other side doesn't get it.

How much harder is jury selection going to be the second time?
They'll be able to pick a jury, but I think it makes it exponentially even more difficult now, particularly with the statements that have come out after the deadlock. Like Camille Cosby's statement really lashing out at the prosecution and the judge. All that stuff lives in the public consciousness, and I think that's going to make it even more difficult to pick an unbiased jury.

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