A retrial of American stand-up comedian, actor and musician Bill Cosby on sexual assault charges will likely offer major advantages to the defence, former prosecutors and defence lawyers claim.
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.
Montgomery County District Attorney Kevin Steele immediately announced he would seek a retrial. New York lawyer Paul Callan, a former prosecutor, said he thought it would “exceptionally difficult” for the state to win a second trial against Cosby.
Callan noted the defence would soon be able to access a full transcript of all the prosecution witness testimony to try to highlight inconsistencies. 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. She said:
From my perspective, a retrial is never an advantage because, as a prosecutor, you put your best case on.
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. Fishbein said:
They might decide to re-evaluate that position.
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 Fishbein, who recently had that experience while representing Pedro Hernandez, who was charged with murdering a six-year-old in New York in 1979.
After a lone holdout 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 Fishbein. Fishbein said he sees similarities with the Cosby case in terms of public opinion. He said:
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 Northeast.
In civil lawsuits in the United States, plaintiffs need only show that the weight of evidence is on their side, meaning they have information to tip the scales above 50 percent in their favour, as opposed to criminal cases in which prosecutors must prove claims beyond reasonable doubt.
At least 10 women have pending civil claims against Cosby in lawsuits filed in California and Massachusetts. Two have brought claims against the 79-year-old entertainer for sexual assault.
Others, barred from doing so because their claims were too old, have brought defamation claims against him, saying he smeared their reputations by publicly denying their accusations.
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