What’s holding up a jury of five men and seven women from reaching a verdict in the Bill Cosby case is anybody’s guess?
On the fourth day of deliberations, the Pennsylvania jury notified the court that it was unable to reach a unanimous verdict on any of the charges brought against Cosby by Andrea Constand.
The court gave the jury what is known as the Spencer Charge in Pennsylvania, otherwise known in most regions of the country as the Allen Charge, which instructs the jury to get back in the jury room and give another good faith effort to reach a decision in the case, because they are the best jury in the world to decide this case.
Very few defense attorneys are happy when the court gives the Allen or Spencer Charge, because it tend to suggest to the jury that not being able to reach a decision is frown upon by the law. This in truth and in fact is not true. At the commencement of any criminal trial there are three possible verdicts: Guilty, Not Guilty and No Decision or in court parlance, a Hung Jury.
It has been this writer’s experience that an Allen Charge usually end in a split verdict where the defendant is found guilty of some charges and innocence on others to appease the juror or minority of jurors who were reluctant to go along with the majority.
However, the nature of the charges in the Cosby case may shed some light on why the jury is having a problem reaching a verdict in this case.
Unlike the two year trial in the court of public opinion waged by Constand’s civil attorney Gloria Allred, this jury has taken an oath to allow their verdict to speak the truth of what happened between Constand and Cosby.
Cosby is charged with one count of penetration without consent. When Constand made the allegation against Cosby, she said that it had occurred a year from the date of her report. Therefore, there was no physical evidence to corroborate her version of what transpired between the two of them.
This fact presents a problem for the jury because count one of the indictment alleges that Cosby penetrated Constand without her consent.
Although Cosby did not testify at trial, his statement to police was read into the record by a Pennsylvania police officer. Cosby told police at that time that he had a romantic relationship with Constand and had engaged in consensual sex with her. Thus, this count comes down to “she said, he said.”
Count two alleges that Cosby penetrated Constand while she was unconscious. Constand testified that she became unconscious at Cosby’s Philadelphia estate and when she regain consciousness her clothes were disheveled and Cosby was in a bathrobe.
Other than for Constand’s word that she believes she had been penetrated by Cosby, there is no physical evidence to prove that she was penetrated by Cosby on that occasion. Again Cosby did not offer any testimony at trial, but his previous statement contends that he only engaged in consensual sex with Constand.
Count three alleges that Cosby penetrated Constand after administering an intoxicant without her knowledge. Constand testified that after telling Cosby that she did not feel well, he gave her a pill that he said would make her feel better. She then voluntarily swallowed the pill.
It would appear that some members of the jury are having a problem deciding that Constand was given this medication without her knowledge.
In order to gain a conviction on Count One, the prosecutor will have to prove beyond a reasonable doubt penetration without Constand’s consent. She said it was without consent and Cosby said it was with consent.
With respect to Count Two, the prosecutor must prove penetration without consent while unconscious. Constand could offer no testimony that Cosby penetrated her while in this alleged unconscious condition because she was unaware of what took place while she was unconscious.
Also, Count Three, the prosecutor must prove penetration after administering intoxicant with Constand’s knowledge. Constand testified that she knowledging ingested the pill given to her by Cosby.
Perhaps, a member or a few members of this jury do not believe that the prosecutor has proven penetration under the three different circumstances the indictment alleges and thus are hanging this jury up.
Harold Michael Harvey is an American novelist and essayist, the author of Paper puzzle and Justice in the Round, edited Easier to obtain Than to Maintain: The Globalization of Civil Rights by Charles Steele, Jr.; and the host of Beyond the Law with Harold Michael Harvey. He can be contacted at haroldmichaelharvey.com.