The Familiar Disappointment of the Bill Cosby Mistrial

Sixty women have accused comedian Bill Cosby of rape, assault, and other sexual violence.

Only one of these women, Andrea Constand — a former Temple University women’s basketball team director of operations who made Cosby’s acquaintance on campus in 2002 — has faced him in a criminal trial. She testified that Cosby gave her three blue pills, and that she lost consciousness after ingesting them. She awoke, she says, to Cosby assaulting her. “In my head, I was trying to get my hands to move or my legs to move, and I was frozen. I wasn’t able to fight,” she said in court. “I wanted it to stop.”

In December 2015 — five months after 35 other women offered similar accounts of sexual assault at the hands of Bill Cosby in a New York cover story — Montgomery County prosecutors charged him with three felony counts of aggravated indecent assault. Cosby’s defense team rested its case last Monday — after calling a single witness, the police detective Sergeant Richard Schaffer, who spoke for only six minutes; so began the jury’s deliberations. Saturday afternoon, Judge Steven T. O’Neill declared a mistrial following six days of deliberations, which stalled as the jurors — who first reported a deadlock four days into their discussions — repeatedly asked the court for clarifications. They asked to rehear portions of the 2005–06 deposition where Cosby discussed his recreational use of quaaludes and Benadryl, and they also asked the court to provide further guidance on the phrases “without her knowledge” and “reasonable doubt.” It’s so far unclear which concerns specifically derailed the jury from reaching a unanimous verdict.

Immediately following the court’s declaration of a mistrial, District Attorney Kevin Steele announced that he would retry the case. (Per Pennsylvania law, he has 120 days to do so.) It’s important to note that Cosby is 79 years old, and that many of the accusations of sexual misconduct that 60 women have aired against him date back to the mid-1960s — the start of Cosby’s comedy career. The only public legal ramifications have been a 2006 civil settlement with Constand (for an undisclosed monetary amount that the court barred from discussion in the criminal trial, and which Cosby sought to reclaim from Constand last year). For Cosby, then, the worst-case scenario in a second round of this criminal trial is that he spends a late decade in prison. For Constand, the worst-case scenario is that she has spent a decade braving legal scrutiny as a victim for nothing.

The mistrial isn’t as conclusive a failure as the most widely feared outcome, a not-guilty verdict. Still, it’s frustrating to see jurors succumb to ambiguity in this particular case when, to the general observer, so many women have indicted Cosby with revolting clarity in the court of public opinion. Once the court declared the mistrial, O’Neill told the jurors, “Do not in any way feel you have let the justice system down,” even as the term “mistrial,” itself, suggests a process that suffered some critical malfunction. These are the sort of ethical mirages that render criminal justice incoherent in the public imagination. The mistrial in Cosby’s case came only a day after a Minnesota jury acquitted police officer Jeronimo Yanez of all charges stemming from the shooting death of Philando Castile at a traffic stop on July 6, 2016. Yanez and Cosby are unrelated in the eyes of the law, and yet they are contemporaneously linked in public perception of the U.S. criminal justice system’s surreal uselessness. Yanez was an agent of American policing, and Cosby is a celebrity who can summon a cast of dealers, talent agents, and attorneys to enforce his privilege. Both men are powerful, and, in both cases, absolute power prevailed absolutely.

Outside the Pennsylvania courthouse where the Cosby trial raged on, the comedian’s supporters rallied each day to trumpet his innocence. It is strange and awful to consider how a crowd of human adults might go so far as to conflate an accused serial rapist’s guilt or innocence with his Q score. While the press has marked him as a pariah in light of all the horrific testimony against him, Cosby is still a Philly folk hero whose contributions to popular culture — I Spy, Fat Albert, The Cosby Show — have so far earned him the sort of impunity reserved for celebrities who act badly. Following the announcement of a mistrial, Cosby spokesman Andrew Wyatt stood before cameras alongside his client and said, “Mr. Cosby’s power is back.” And yet, given the favorable (if tentative) outcome that Cosby; his wife, Camille; and his legal team celebrated this past weekend, and the crowd cheering at the courthouse, it doesn’t seem that any such power ever left him. Cosby’s power — his inherent trustworthiness as a famous, beloved man called to account by a strong but powerless woman — is impossible to separate from the verdict, or the trial’s lack thereof.

Another one of Cosby’s accusers, actor Kathy McKee, who alleges Cosby raped her in 1973, once described the incident — after which, she said, he pretended that nothing odd or remarkable had just happened between them — as an unthinkably violent encounter with hubris. “He just assumed, I’m Bill Cosby,” McKee told the Los Angeles Times earlier this month. “I’m the no. 1 star in the world. I can do what I want, take what I want. That’s the way it’s been in this business.” It’s a familiar line that corrupts entertainers as much as it corrupts politicians, and has done so for centuries. Occasionally, we pretend that history is a linear force that propels us, inevitably, toward more comprehensive justice, and that grotesque contradictions — such as the mistrial in the Cosby case — are brief, unfortunate glitches in the overall clockwork of progress. As if 2017 isn’t, if anything, the nadir of this nation’s faith in its institutions. Montgomery County prosecutors will retry Constand’s case, and the second time we may see it as tragedy’s cousin, farce, before we ever hear a verdict. Assuming we do.