Why Bill Cosby's jury is deadlocked

Only the jurors know, of course. But testimony over the past few days has raised potential points of contention, and more than a few unanswered questions.

At 11:06 a.m. on Thursday, jurors in the Cosby sexual assault trial sent a note to the judge: “We cannot come to unanimous consensus on any of the counts.” The judge denied the defence’s request for mistrial and sent the jurors back to try to reach a unanimous verdict. The jurors—seven men and five women ranging from ’20s to ’70s—have been deliberating for more than 29 hours under lock and key. They’ve been entrusted with determining whether the once-beloved entertainer is guilty or not-guilty on three felony counts of aggravated indecent assault in 2004, each covering a different aspect of the alleged crime:

Count 1: Aggravated indecent assault, felony 2nd degree

Did engage in penetration, however slight, of the genitals or anus of the complainant, to wit: ANDREA CONSTAND, with a part of the defendant’s body for any purpose other than good faith medical, hygienic or law enforcement procedures…

…without the consent of the complainant.

Count 2: Aggravated indecent assault, felony 2nd degree

…while the complainant is unconscious or the defendant knows the complainant is unaware that the penetration is occurring.

Count 3: Aggravated indecent assault, felony 2nd degree

…when the defendant had substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of preventing resistance.

Certain facts have been determined. Constand arrived at Cosby’s house on the night of the incident saying she was under stress due to changes in her life; without her asking, he went upstairs and returned with three blue pills he said would help her “relax”—“friends” he called them; 20 minutes later, Cosby digitally penetrated Constand vagina.

The charges are written in such a manner that Constand could have consented to take the pills, without consenting to sex. Under law, someone who is intoxicated or unconscious cannot give consent.

Constand testified she believed the pills were herbal (they’d discussed the fact she didn’t take prescription drugs in the past, she said). She said she asked Cosby if they were and he “nodded” in the affirmative. She asked the pills should be taken under her tongue—as is common when taking herbal meds. Cosby told her to take them with water, which he provided. She said he insisted she drink some wine—saying “it’s from an old bottle” At first she declined—she had nothing in her stomach—but took a sip. Within minutes, she testified, she felt disoriented, experiencing dizziness and blurred vision: she told Cosby “I can see two of you.” Her legs were weak, and she began “to panic”; Cosby lead her to the living room sofa where he lay on her side. She said next she was “jolted awake” by sexual activity—Cosby’s hand inside her vagina, him placing her hand on his penis and “moving it up and down.” She says she felt “paralyzed” unable to speak or resist. She awoke hours later—between 4 or 5 a.m. Her clothing was dishevelled; her bra was around her neck, she said. Cosby was awake. He offered her tea and a muffin before she left.

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Cosby testified he gave Constand, with whom he said he had a “social and romantic” relationship, one and a half Benadryl tablets to help her “relax.” He said he took two tablets when on the road to sleep and that they would make him so drowsy he would never take them before performing. He said he’d broken one tablet in half to make it easier to swallow. He said he and Constand had sexual activity—”touching,” petting,” “necking”—on “at least three” occasions before. He testified Constand was conscious during sexual activity and did not resist. He said he sat with her and pleaded with her to “go to sleep,” “go to sleep.” He left her on the sofa before going to upstairs to bed. He testified he set the alarm to get up to wake Constand up. He gave her tea and a muffin before she left. She did not express any “anger” he testified.

In neither account does Constand consent to taking an over-the-counter medication.

Key points of possible dispute:

Constand’s credibility: Cosby’s defence hammered away at the fact Constand revised the date of alleged assault over three police reports—from January 2004 to March 16, 2004, back to January (an expert witness in sexual-assault victims behaviours told the court trauma affects memory). The defence also characterized the relationship as “romantic,” with past sexual activity, which Constand denies. She testified Cosby made two prior sexual advances which she rebuffed by repositioning her body.

The defence also noted that in an early police report, Constand said she had never been “alone” with Cosby before the night of the assault. That was not correct; she had been alone with him on at least three occasions, once in a hotel room.

Constand was a calm and consistent on the witness stand,  admitting she was “mistaken” about the date of the alleged assault.

The “53 phone calls:”  The defence highlighted contact between Constand and Cosby after the alleged assault: it combed through Constand’s phone records to  determine she contacted Cosby 53 times. The prosecution noted Constand was then an employee of Temple University, where Cosby sat on the board of trustees, and was beholden to return his calls. It also noted most of those calls registered as one-minute, and thus did not involve contact.

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The bath salts: The defence repeatedly pointed out Constand took bath salts produced by a friend, a seemingly friendly gesture, to Cosby on March 16, after the assault. That night, she testified, she confronted him about the incident and asked what drug she had given him. He did not provide any information; she said she left. Cosby testified he did not recall this encounter.

The “Dr. Cliff Huxtable Factor:” The jury was instructed to be unbiased when evaluating evidence but the fact is some likely entered court regarding Cosby as someone they knew and liked. Someone they invited into their homes regularly via TV. Cosby’s celebrity and good-guy image was invoked repeatedly by his defence: his lawyer Brian McMonagle referred to a “brilliant comedian who made people smile.” It’s possible some in the jury room cannot square the allegations made in court with his wise, kind, paternal character, Cliff Huxtable.

Lingering questions:

Why did Cosby not provide the name of the drug earlier?

When asked by Gianna Constand, Andrea’s mother, on a confrontational Jan. 13, 2005 phone call, Cosby, left the line and returned to say he couldn’t read the label on the prescription bottle. First reference to Benadryl was made by Cosby in a Jan 26 police interview conducted at his lawyers’ office in New York City. At the end, he voluntarily handed police various pills, including pink pills later determined to be Benadryl. Yet he had told Gianna Constand only days earlier he still possessed the package containing the same pills he gave her daughter which were blue.

Why did Cosby administer a sedative to someone who he didn’t “want to spend the night,” as he said in court? And why, if he wanted Constand to sleep, did he not put her in one of his five-bedrooms?

In his closing arguments Montgomery County DA Kevin Steele was outraged on that point, pointing directly at Cosby. “No blanket? No nothing? Clothes up around her? C’mon! Come on!”

Why did Cosby bring in his people to offer Constand an “educational” trust?

What is being discussed, of course, is known only to the 12 sequestered jurors. But the end of the day, one thing will determine a finding of “guilty” or “guilty” against Bill Cosby: Andrea’s Constand must be found credible beyond a reasonable doubt.