Twelve Pennsylvania residents currently have the power to write Bill Cosby into the history books as a convicted sexual assailant. They also have the power to uphold his status as the target of four dozen accusations but the perpetrator of no proven crimes.
The Norristown jury deliberating on Cosby’s alleged 2004 sexual assault of Andrea Constand looks like it’s leaning toward the latter. Over the past five days, the jurors have asked the judge several questions, and on Thursday told him they were unable to come to a unanimous decision. The judge instructed them to go back to the deliberation room and try again.
From the content of the questions, it sounds like there are one or more jurors willing to believe that Cosby did what no one disputes he did—bring her to his house for a career conversation; leave her to eat alone; offer her pills without telling her what they were; giving her as many he later said he’d take to go to sleep; penetrate her manually and put her hand on his penis; and abandon her on the couch, unable to move—in the context of a loving, romantic relationship. That is what the defense has argued: that Cosby is a mere philanderer, and that their sexual contact was one entry in a long-running affair. He was married and 37 years her senior; she was dating a woman and identifies as gay.
The jury has asked to hear again the passage of Constand’s testimony “put them down, they are your friends,” which she said Cosby told her when he offered her the pills he said would help her relax. (She says she asked if they were herbal, and he nodded, but when her mother later demanded that Cosby tell her what they were, he wouldn’t say.) They asked the judge to define “without her knowledge,” a part of one of the three charges Cosby’s facing, as in, Cosby gave Constand intoxicants “without her knowledge.” The jury has asked to rehear Constand’s testimony about the alleged assault and the testimony of two law enforcement personnel who’d interviewed Constand and Cosby. Twice, they reheard segments of Cosby’s deposition from the civil suit Constand brought. This was their only way to hear his version of the night she says the assault occurred, since he didn’t take the stand in court. On Friday, the jury asked to see Constand’s phone records, which the defense used to argue that she’d had an affair with Cosby, since she’d called him several times after the alleged assault. She testified that she’d been looking for answers about what happened and what pills he gave her; the jury asked to rehear that testimony, too.
They also wanted to know the definition of “reasonable doubt.” This is important, because it’s the crux of what the jury’s supposed to do—decide whether all 12 members are satisfied, beyond reasonable doubt, that Cosby committed the three counts of aggravated indecent assault with which the prosecution has charged him. The question makes it seem like there are one or a couple jury members who think Cosby did what Constand, several witnesses, and the prosecutors say he did, but aren’t sure whether their hunches clear the threshold of reasonable doubt. Perhaps the other jury members are trying to convince a few holdouts that yes, no one but Constand and Cosby know exactly what happened at his home in 2004, but any reasonable person would look at the mountains of evidence and testimony that support Constand and call this man guilty.
One of the jurors’ Friday requests was to rehear the part of Cosby’s civil suit deposition where he said he gave women Quaaludes to get them to have sex with him. Constand’s mother testified last week that Cosby told her he was a “sick man” in a phone call—the jury asked to rehear that testimony, too—but this deposition statement is the closest Cosby has ever come to admitting his guilt in his own words. If the jurors can hear that deposition, on top of all the other testimony they heard last week, and still believe the one-sided sexual encounter that took place on a couch in Cosby’s home was part of a consensual relationship, next to nothing could have convinced them otherwise.