Retrial of Cosby case more in favour of defence, say lawyers

"The judge is right, justice is real," says an attorney for Bill Cosby, Brian McMonagle, after a mistrial was declared in Cosby's sexual assault case after the jury said it could not reach a verdict.
Attorney Gloria Allred, who represents many of Cosby's accusers, said 'justice will come' after a Pennsylvania judge declared a mistrial in Bill Cosby's sexual assault case. One of his accusers, Linda Kirkpatrick, spoke out about the mistrial.

But a different jury could lean towards getting a conviction

NORRISTOWN (Pennsylvania) • A retrial of comedian Bill Cosby on sexual assault charges will likely offer major advantages to the defence, former prosecutors and defence lawyers said, but the enormous publicity surrounding the case may also produce a second jury that is more eager to convict.

Judge Steven O'Neill of the Montgomery County Court of Common Pleas in Pennsylvania declared a mistrial on Saturday after jurors said they were deadlocked after 52 hours of deliberations.

It was a stunning development - and a momentary victory - for the 79-year-old pioneering black entertainer who risked spending the rest of his life in prison if convicted of assaulting former university employee Andrea Constand at his Philadelphia home 13 years ago.

Some 60 women have publicly accused the Emmy-winning actor in recent years of being a serial sexual predator, alleging that he drugged and assaulted them over a span of 40 years across the United States. Ms Constand's allegations brought the only criminal case against him as most of the alleged abuse happened too long ago to prosecute.

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Montgomery County District Attorney Kevin Steele announced in court on Saturday that he would seek a retrial.

New York lawyer Paul Callan, a former prosecutor, said he thought it would be "exceptionally difficult" for the state to win a second trial against Cosby. He noted that the defence would soon be able to access a full transcript of all the prosecution-witness testimonies to try to highlight inconsistencies.

Ms Linda Fairstein, former head of the sex-crimes unit with the Manhattan District Attorney's Office, agreed that retrials are usually better for the defence.

NO ADVANTAGE

From my perspective, a retrial is never an advantage because, as a prosecutor, you put your best case on.

MS LINDA FAIRSTEIN, former head of the sex crimes unit with the Manhattan District Attorney's Office.

JURY DOUBT

There's a lot at stake here with the fact that so many women have filed complaints against him... It's going to be very hard to find a fair and impartial jury anywhere in the north-east.

NEW YORK DEFENCE LAWYER HARVEY FISHBEIN

"From my perspective, a retrial is never an advantage because, as a prosecutor, you put your best case on," she said.

New York defence lawyer Harvey Fishbein noted Cosby's lawyers had shown fewer of their cards, resting without calling any witnesses.

The comedian also did not testify in his own defence.

"They might decide to re-evaluate that position," said Mr Fishbein.

The prosecution is also under more pressure than the defence in terms of expending public resources, he added. One hung jury raises the possibility of another one, and the government needs to weigh how far it wants to go to win a conviction.

But that calculus can also change in very high-profile cases, noted Mr Fishbein, who recently had that experience while representing Pedro Hernandez, who was charged with murdering six-year-old Etan Patz in New York in 1979.

After a lone holdout had deadlocked the jury in Hernandez's first trial, the public and media outcry made it extremely hard to find an impartial panel for the retrial, said Mr Fishbein.

"We had to go through 1,000 people to get a jury," he said.

Hernandez was convicted and sentenced to 25-years-to-life imprisonment in April. Mr Fishbein said he was appealing against the verdict. He said he sees similarities with the Cosby case in terms of public opinion.

"There's a lot at stake here with the fact that so many women have filed complaints against him," said Mr Fishbein. "It's going to be very hard to find a fair and impartial jury anywhere in the north-east."

REUTERS, AGENCE FRANCE-PRESSE

A version of this article appeared in the print edition of The Straits Times on June 19, 2017, with the headline 'Retrial of Cosby case more in favour of defence, say lawyers'. Print Edition | Subscribe