The school year is over, but law professors were seemingly everywhere this weekend helping media outlets unpack the mistrial in Bill Cosby’s closely watched sexual assault trial in Pennsylvania.
Judge Steven O’Neill declared a mistrial Saturday after the jury was unable to reach a unanimous verdict following six days of deliberations. Cosby faced three felony counts of aggravated indecent assault for allegedly drugging Andrea Constand and sexually violating her while she was incapacitated at his Philadelphia home in 2004.
District Attorney Kevin Steele said immediately that he would seek a retrial. Here’s a sampling of what legal academics had to say about the verdict—or lack thereof.
On what likely went wrong for the prosecution
“Perhaps some jurors thought that there was a small but real chance that Constand accepted the pills as part of a consensual sexual encounter on this particular night. That is all it takes for reasonable doubt—and just one juror’s reasonable doubt can hang a jury.”
—Jennie Suk Gerson, professor at Harvard Law School, in The New Yorker.
“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.”
—Jody Armour, professor at the University of southern California Gould School of Law, told the Associated Press.
“When a jury deliberates that long and hard, it often does not convict. The fact that the case turned substantially on one person’s testimony may have made it difficult to win and the defense counsel made many efforts to undercut [Constand’s] testimony.”
—Carl Tobias, professor at the University of Richmond School of Law, told CNN.
“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.”
—Laurie Levenson, professor at Loyola Law School, Los Angeles, told the Associated Press.
“I am a bit befuddled that the jury deliberated for six days wherein jurors are simply determining the credibility of two people. No forensics, no toxicology, and no physical evidence for the jury to examine, analyze or argue over. Yet the jury was deliberating longer than it took for both the prosecution and defense combined to try this case.”
—Barbara Ashcroft, professor at Temple University James E. Beasley School of Law, said in The New York Times.
On a potential criminal retrial or civil trial
“Anything can happen because it’s a new set of jurors. 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?”
Laurie Levenson, professor at Loyola Law School, Los Angeles, told the Associated Press.
“There may not be enough evidence for a criminal conviction, but that does not rule out a civil verdict.”
—David Harris, professor at the University of Pittsburgh School of Law, told Reuters.
“The prosecution had to show all of its cards. If Cosby had testified, I would say that benefits the prosecution, but there’s nothing there they can comb through.”
—Wesley Oliver, professor at Duquesne University School of Law, told the New York Daily News.
“The prosecution of Bill Cosby for the aggravated indecent assault of Andrea Constand was widely viewed as a ‘tough case’—and no doubt the retrial will be tough as well—but as District Attorney Kevin Steele rightly observed in his comments following the mistrial, prosecutors ‘should take on the tough cases. It’s the right thing to do.’”
—Michelle Madden Dempsey, professor at Villanova University School of Law, said in The New York Times.
“The defamation case is this clever way of saying, ‘If I say you raped me and you say it didn’t happen, then you’re defaming me by calling me a liar.’ And that in itself is a difficult defamation case. It’s not a classic defamation case.”
—Rodney Smolla, dean at Widener University Delaware Law School, told Reuters about civil cases brought against Cosby by accusers in which the statute of limitations has lapsed.