What Divided the Cosby Jurors? Words, for One Thing

Bill Cosby, arriving this month at Montgomery County Court for a pretrial 

hearing in his sexual assault case. Credit Matt Slocum/Associated Press

One hurdle prosecutors had to clear to secure a conviction of Bill Cosby was obvious from the start of his sexual assault trial. The credibility of the complainant, Andrea Constand, who had continued contact with him after the night she says she was drugged and assaulted, would be critical.

Less obvious was another point of contention that would entangle the jurors during their 52 hours of deliberations — the not-so-simple meaning of words.

What is meant, the jurors asked, by the term “unconscious” in the law against aggravated indecent assault? Did that mean she had to be out cold during an assault, or simply incapable of giving consent?

And when Judge Steven T. O’Neill said the panel might need to find Mr. Cosby’s behavior “reckless” to find him guilty, what exactly did he mean?

“We spent all our time trying to figure out the wording,” said one of the jurors, who agreed to speak on the condition of anonymity to protect his privacy. “It all came down to the wording.”

Much is unclear about what happened in the jury room during the Cosby case, which ended with a hung jury and a mistrial . But two jurors who spoke to The New York Times said a great deal of their time was spent parsing — and disagreeing about — the meaning of words and phrases like “unconscious,” “reasonable doubt” and “without her knowledge.”

“There were other issues, but it was definitely prevalent,” said Bobby Dugan, one of the jurors.

Bobby Dugan, who was a juror at Bill Cosby’s trial, at his home in Pittsburgh.

  Credit Kristian Thacker for The New York Times

Experts say wording disputes within juries are not rare — that one of the trickiest tasks for jurors is matching the visceral intensity of some testimony with the bloodless language of the law.

“They are tricky concepts and in very abstract terms, and that is one of the difficulties that jurors often have with jury instructions, especially in trying to make that jump from the technical abstract language,” said Paula L. Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts. Several studies have documented that jurors can have a hard time grasping the language of the so-called jury “charge,” the instructions that judges give to panels before deliberations begin.

Now, as prosecutors prepare to retry Mr. Cosby, experts said they would have to consider not only how well Ms. Constand gave her account, but also whether their own words to the new jurors could avoid the confusion that seems to have plagued at least some of the old.

“Hopefully, the second time around, they can figure out a better way of connecting the dots for the jury,” said Deborah Tuerkheimer, a professor of law at Northwestern University and a former prosecutor. She said that while the jurors might have found Ms. Constand credible, ”they couldn’t match up what she was telling them with the precise language.”

The Montgomery County Courthouse was the site of Bill Cosby’s sexual assault trial.
Credit Matt Rourke/Associated Press

Reports from jurors have differed, with some saying that the panel of 12 had been totally split, and another suggesting that Mr. Cosby narrowly escaped conviction because of two holdouts who could not be persuaded of his guilt. Mr. Dugan said he would only discuss his own deliberations, and that he had voted to convict Mr. Cosby of two counts of sexual assault but not a third, which accused Mr. Cosby of penetrating Ms. Constand while she was “unconscious.”

Mr. Cosby has admitted the penetration but says that Ms. Constand was awake and consenting.

Ms. Constand testified to slipping in and out of consciousness after digesting three pills given to her by Mr. Cosby. She said she was jolted awake after the penetration occurred, was aware of Mr. Cosby’s fingers moving inside her, but still felt “frozen” and could not stop him. The jury charge included an explanation that, to find Mr. Cosby guilty, the jury would not have to agree that Ms. Constand was continuously unconscious but that she was at all times too impaired to be able to consent.

“She was saying she does not remember when she passed out,” Mr. Dugan said, “but she does remember waking up to Mr. Cosby sexually assaulting her, then she went back to sleep. I didn’t think if you have such a shock to your system that you would fall right back to sleep.” So she could not have been unconscious, he said.

Via New York Times