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A criminal case that did have a surprise ending

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I was certain the very famous man who admitted he bought sedatives in order to sexually assault women would be found not guilty of sexually assaulting a woman after giving her sedatives.

The high-profile case accusing Bill Cosby of aggravated indecent assault ended in a mistrial Saturday after a Pennsylvania jury was unable to come to a unanimous decision.

The outcome leaves one of America’s most recognized entertainers as well as his accusers without vindication, but prosecutors immediately announced they will retry the case.

About an hour into the sixth day of deliberations, Judge Steven O’Neill declared that the jury of seven men and five women were hopelessly deadlocked in a legal battle closely watched by the public as well as dozens of women who have accused Cosby of similar misconduct in the past.

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  • AMK

    Jury quality is (another) huge problem with the system. People with responsibilities and better things to do get out of jury duty easily, so we’re left with with the shut-ins and morons to decide these cases.

    • I admit to some skepticism over whether an inability to recognize rape as rape is correlated with intelligence/social class/employment status.

      (This is not to dispute the broader point that juries are a big problem in the American justice system. I’m just not convinced that a more upscale jury would have delivered a more just result.)

      • LeeEsq

        The fact that the accused is a beloved celebrity well-remembered for his family man roles doesn’t help much either as demonstrated in a recent thread. Many people seem to not get the concept of acting and can’t separate the role from the actor.

        • LosGatosCA

          Apparently civil juries for Cosby don’t have the problem on not recognizing when he’s acting. Decades ago he was sued for breaking a photographers camera which he completely denied under oath. Which was contradicted by more than a few impartial witnesses.

          It was covered by Court TV and as I vaguely recall a juror was interviewed after the verdict, specifically why she didn’t believe Cosby – roughly – Mr Cosby seems like a nice person but he’s been acting so long he may not have a clear grasp of what’s real and what’s pretend.

      • Dr. Ronnie James, DO

        A few of the interminable “WWC voters explain why they voted for Trump” included women who bought the spin that the pussy tape was “just locker room talk” and thought Trump would be secretly pro choice “bc he’s probably paid for a few abortions himself!! [chuckle chuckle]”

        • LeeEsq

          I don’t understand this level of stupidity but it seems to make sense to a lot of people.

          • BigHank53

            None of us is entirely innocent. Most of us have smaller sins to atone for–speeding, being a jerk in line at the coffee shop, taking family members for granted–but the whole concept of forcing someone to take responsibility doesn’t sit easy with us hairless apes.

            Unless it confirms our biases, of course. Then it’s dandy!

            Also see: welfare queens, glass ceilings, the war on some drugs used by some people, redlining, Jim Crow, etc, ad nauseum. Not a real surprise that a wealthy, successful man beat an evidence-free rape charge from years back. I have no doubt that Mr. Cosby’s lawyers instructed him to appear as elderly and feeble as possible in court: look, he’s harmless!

            Jury trials are awful. It’s just that, like democracy, the alternatives are worse.

            • wjts

              …an evidence-free rape charge from years back.

              I think I get what you mean here, but the testimony of the victim is absolutely evidence.

              • BigHank53

                Yes, I should have been more specific. No physical evidence.

              • cpinva

                “I think I get what you mean here, but the testimony of the victim is absolutely evidence.”

                true enough. however, this particular witness changed different parts of her testimony over time. this would lead even reasonable, smart people to start questioning her credibility, or at least her memory.

                like the OJ trial, the burden of proof is on the state. they have to present a case that removes all reasonable doubt, from all member’s of the jury. in this case, as with the OJ case, the state apparently failed to do so.

                • Origami Isopod

                  however, this particular witness changed different parts of her testimony over time. this would lead even reasonable, smart people to start questioning her credibility, or at least her memory.

                  This is a frequent issue in rape trials because trauma affects memory.

                • randy khan

                  On the other hand, her testimony was corroborated by her mother’s testimony and by Cosby’s own deposition testimony.

          • It takes the premise that all politicians lie and turns it into a good thing–I think there was an interesting essay on it somewhere called “blue lies” which are lies which affirm group membership or which are seen as targeting outsiders. The idea that Trump was lying about this thing (his stance on abortion) to get over on evangelicals is a kind of “blue lie” which some people took as merely good political practice: he wants votes. People are often excited or comforted by the fantasy that they share with powerful people a belief that others don’t share–that they are aligned with the powerful in knowing something that others don’t know. I think this is a variant on this form of self deception and delusion: the belief that Trump is getting over on those other rubes doesn’t make you suspicious that you, yourself, are also being gotten over/lied to about something else. It makes you savvy, an insider, who who knows how things are really done –just like Trump! It makes you, in your imagination, part of an inner circle because you see the deception as pointed at other people who are, therefore, either children, fools, or outsiders.

            • Dr. Ronnie James, DO

              Blue Lies Matter. Also, can’t improve on what you said.

            • econoclast

              “You can’t con an honest man,” as the saying goes.

              • jim, some guy in iowa

                no, but if you do a really good job of telling an honest person what they want to hear you can get the honest person to set aside whatever reservations they have about you long enough to work them over

                • Dalai Rasta

                  Also, never correct a rube when he’s selling himself on your proposition.

              • TinEar

                That proverb is taken from the title of a 1939 movie (You Can’t Cheat an Honest Man) written by W.C. Fields. Every time you think you are passing on that nugget of feel-good “wisdom” you are taking the word of one of history’s most famous inveterate liars.

                • TinEar

                  Sorry, I often mix up Fields and P.T. Barnum for some reason. It’s not really fair to call Fields an inveterate liar. However I think it’s still very worth noting that the only sources for “You can’t cheat an honest man” are first of all fiction and second of all actual criminals.

                • Origami Isopod

                  Projection, same as with wingnuts. Con artists project their morality onto others because they are incapable of putting themselves in another’s shoes.

                • Lurking Canadian

                  I think it is important to distinguish between these two. It may very well be true that you can’t con an honest man. The sorts of swindles we usually group under that name almost all involve the mark thinking he’s getting ahead somehow: he’s getting a good deal, or he’s getting inside information, or he’s going to get rich quick, or whatever.

                  You can, however, certainly cheat an honest man. All that requires is the ability to lie convincingly and a claim to unique expertise. cf: any number of shady auto repair shops, building contractors, etc. If the guy at the auto shop tells you your car needs a new Johnson rod, it’s not street legal without it and it’s going to cost $10000 to fix, you don’t need a dishonest car owner to fork over the money. Just one who is too trusting and ignorant of the details of auto repair.

                • Right, Lurking Candian. The Con is a specific type of interaction between the confidence man and the mark. You can cheat an honest man but you can’t con an honest man because all cons have an element of criminality or fraud or easy money in them. A truly honest person wouldn’t go along with it or be willing to engage in it. Cons (and I’m going by the excellent book on the topic The Big Con, involve turning the rube/mark into a co-conspirator ripping off someone else, or turning an ordinary situation into an extra ordinary source of special income.

                • TinEar

                  Semantic nonsense to ease consciences and romanticize criminals. What moral failing does the Grandparent scam exploit? (“Grandma it’s Grandson I’m in Scary Place and need you to wire me money!”) Or romance scams? Or those guys who call saying “Hi this is the IRS you’re in Big Trouble Mister”? Or those guys running fake charities for Haitian earthquake victims?

                  Do none of these count as cons because we’ve decided to only say “con” if we arbitrarily feel the victim deserves it?

        • Karen24

          Back in the 90’s I worked for the Texas Employement Commission doing appeals hearings from determinations on unemployment benefits. One of the things hammered into our heads was the difference between a fact and a conclusion, and that almost everyone thinks in conclusions. Every single person I questioned during those four years based their horrible decision on their conclusions about something which they reached without any other evidence to support it. They always got angry when I asked them to please telll me the facts which led you to make that conclusion? They got angrier when “I just assumed . . ” wasn’t a sufficient answer.

          Cases like this, and the Trump election, demonstrate this principle extremely well. All facts, including Cosby’s admission, lead to only one conclusion: that he is a rapist. The jurors, however, leap over the obvious facts and base their decisions on fantasies existing only inside their heads. Trump voters ignored the evidence that their boy was a lying, cheating, moron and decided that a guy they knew from his TV character would make a great President. Facing facts is hard, and there is not group of people on Earth less likely to do so than American white people and the worst of that group are white males who didn’t finish college.

          • We just had to do an exercise in my class on Psychopathology–we had to read a statement/intake exam from someone who might have a problem abusing alcohol and rate it using the DSM V’s methods and decide if she had no problem 0-2 criteria all the way to more than six criteria (severe problems). Despite the fact that she met 6 or 7 out of 10 criteria, including a drunk driving charge, needing to drink in the morning to get going, black outs, etc… I was the only one in the room to put her down for a “severe” disorder (6 or more criteria met) because the other, much younger students, saw it as so judgmental to assess her as other than defined as mild. They didn’t see any merit in just reviewing the criteria and her statement and totting up the numbers, and they simply reasoned backwards from how they felt about college drinking (everyone does it, she does it among friends, she says she only has one DUI). In fact they got quietly angry with me for taking a hard and fast approach to the criteria (met or not met) instead of evaluating them on the fly for “harshness” or “appropriateness.”

            • Karen24

              That sounds depressingly familiar. Since that time, I have had innumerable conversations following this template: “I know that woman doesn’t like me.” Me: “What did she do or say to make you think that?” Other person: “I just know it. You would think the same if you knew her.” Me, inside my head: “So you’re making this all up for some reason.”

              If my sons learn nothing else in life it will be never to make assumptions like that. Get facts and base decisions on facts.

              • cpinva

                “If my sons learn nothing else in life it will be never to make assumptions like that. Get facts and base decisions on facts.”

                this. I spent almost 4 decades doing exactly this, and tried to drill that into my children (and my wife, for that matter). assumptions and feelings aren’t facts. unless it can be demonstrated by tangible evidence, it isn’t a fact. unless your conclusion is based on tangible evidence (facts), it’s worth less than the paper you write it down on.

            • NewishLawyer

              Basically a bunch of 23 year olds looked at a severe alcohol problem and decided “What’s wrong with that? It sounds like Saturday night followed by brunch…”

              :/

          • NewishLawyer

            I think there is just something in human nature where we, including very intelligent people, make our conclusions first and then work backwards to support them.

            • cpinva

              it’s a lot easier that way. you needn’t do the hard work of sifting through a pile of crap, to find those facts, you can just make them up to fit your “conclusion”.

          • Origami Isopod

            and the worst of that group are white males who didn’t finish college.

            There are plenty of them who did finish college who are like that. I don’t think a bachelor’s degree means anything in this regard.

            • N__B

              It depends. A bachelors plus membership in a fraternity probably means experience in hiding evidence.

    • Thom

      In response to AMK, I agree that jury selection is not great as it works now, but I think this overstates things. I don’t know who was on this jury, but jurors are by no means “morons” on the whole. They tend to take their responsibility seriously, though they may or may not have a thorough understanding of the sometimes complex legal and factual issues in a case (and this is true for people who are well educated as well). The prosecution has the burden to prove the case beyond a reasonable doubt, and on the whole it is good if juries are not overly credulous about the cases presented by prosecutors. However, it is a problem that juries (and judges) can be swayed by celebrity, and of course it is a problem that people have very unequal access to a criminal defense.

      • vic rattlehead

        But “They tend to take their responsibility seriously” and being a moron aren’t mutually exclusive.

        I never get selected, but having gone through the process it’s remarkable how many people seem to resent it. Lots of people who have legitimate excuses (I run my own small business that relies entirely on my effort and will lose a shitload of money, etc) lots of people desperately trying to get out. Everyone with an intelligent opinion seems to get dismissed. There’s got to be some way to improve the selection process.

        Also-from experience-people take criminal jury service a lot more seriously. A civil jury trial-why should you waste my time because of a business dispute? Pay me.

        • Shantanu Saha

          Interesting, because at age 50 and being a voter my entire life (juries are supposed to be selected from voter rolls), I have never been called for jury duty. I’ve gotten close twice: once I was given a high number and the cases for the week closed before my number came up to come down to the courthouse, and the second time happened (just last year) after I had moved away from the district I was called to serve in.

          • NewishLawyer

            I think it depends on where you live. I’ve been called to jury duty once on Long Island and three times in San Francisco. I was able to get two deferrals in SF for the CA and NY bars respectively and the last time I was dismissed by the prosecutor because my answers were too civil rights oriented.*

            *It was a misdemeanor drunk driving case involving check points. This is the kind of case that basically makes it to a jury trial once every decade because everyone usually pleas out.

          • NewishLawyer

            And the one time I did make it to voir dire, there was an inordinate amount of lawyers in the jury pool. There was even a retired judge in the jury pool.

          • Spider-Dan

            At least in Cali, I believe juries are selected from driver license registrations, not voter rolls.

            The logic is that for many people, if not voting meant you didn’t have to ever be called in for jury duty, that’s killing two birds with one stone.

        • LosGatosCA

          Can’t agree more on civil cases. I was called in for jury duty on a case they expected to take 3 months. A condo association suing the builder who was suing the manufacturer of windows installed in the association’s condos.

          The windows were failing and the bulider/mfger were blaming each other. They were so desperate to get people, the judge and the lawyers were individually interviewing each potential juror to hear their excuse not to serve on the jury. I had more than sufficient personal and professional reasons and was excused quickly. But everyone’s reaction was the same – are you fucking kidding me? Three months of my life on hold because you jackasses can’t sort this out?

          That was the first (and only) time arbitration clauses made sense to me, at least in theory. Waste your own time and money, not mine.

      • addicted44

        Lots of lawyers on this board so they can correct me but the conventional wisdom I’ve heard is that basically lawyers go out of their way to eliminate smart people from the jury.

        • Katya

          Not in my experience. You want smart people on the jury. You don’t want people who think they are experts in either the law or the subject matter (who will be constantly second-guessing you or reading too much into the court’s rulings, etc.), or who are likely to dominate the jury (a former judge, for example. You want 12 jurors, not one), but you want people who are reasonably intelligent and possess common sense.

    • Matt McIrvin

      Pennsylvania seems to be “one day or one trial”, which at least minimizes the degree of hardship involved, though of course getting on a high-profile trial like this one will always be a pain.

      Massachusetts also reduces the incentive to weasel out by giving everybody who gets summoned one and only one no-questions-asked deferral, to deal with simple schedule conflicts. (It appears PA doesn’t do that; you need a hardship excuse.)

      • vic rattlehead

        New York is a minimum of two days last I did it. I never get selected since I’m an attorney, and probably never will, but I still have to go.

    • vic rattlehead

      Meant to post here. It seems like a problem with high profile cases.

      If you eliminate people who have read about the case (which is all over the news) you are left with the incurious and uninformed. Great! A jury full of ignorant dumbshits!

      • It’s been ages since I learned about this, but I don’t believe having read about a case automatically disqualifies someone from jury duty. However, having made up one’s mind about it does.

        • vic rattlehead

          It usually won’t but the attorneys may want to get rid of those people by any means they can.

    • Dilan Esper

      I really hate this whole thread.

      Juries do a great job, they sometimes convict even celebrities (e.g., Mike Tyson, Phil Spector), too many upper and middle class people treat service with disdain and then trash the results.

      And most importantly, this jury hung! It didn’t even acquit him!

      If you want to blame anyone, blame the judge who kept out Cosby’s 40 year history of assault.

    • bender

      Are you speaking from experience?

      Shut-ins by definition cannot serve on a jury.

      I have served on two DUI’s (guilty–under California law it’s almost impossible to beat that charge), one receiving stolen goods (guilty), one murder (hung 8-4) and one hearing on
      whether a convicted child molester should be released from a post-sentence mental hospital
      (no). The foremen on all five cases seemed pretty sharp to me and none of my fellow jurors
      were morons.

      I am a special case in that when I was employed full time my employer by contract paid my wages while on jury duty. So it wasn’t just civic duty; it was a change from routine that didn’t cost me anything. That wasn’t true for my fellow jurors.

      • Dilan Esper

        We talk a lot about white male privilege and stereotypes here, but hatred of juries which privileged people avoid service on is all of that, plus pure class prejudice.

  • I am fairly well educated and have sat on a couple of juries–the education or otherwise of jurors is not the issue. Cases are confusing, are presented to you in a chopped up fashion, and the number of rules about what you can and can’t consider is high. Its very confusing no matter what your educational background and the points on which Juries often get hung up are nasty, complicated, points of interpretation and law as well as of fact that can be stumping even to people who are highly educated. It reminds me of what Obama said “by the time a problem gets to my desk its there because there was no easy answer.” What gets presented to a Jury is a stew, a farrago, of competing accounts and fine points of legal definitions and interpretations that don’t have a single, obvious, answer. If they did the parties would have settled before hand.

    • ema

      I was called to jury duty 2 times. First time I made it through the pick names at random stages to the final voir dire where I noticed the lawyers systematically excluded anyone with an education above HS. (I wasn’t even asked one question. They looked at my questionnaire — I was a resident at that time — and kicked me out. Of a medical trial. Because, clearly, not qualified to be a peer.) Second time, they asked for degree of education before they even started the lottery of names stage. (Name was never called so I was dismissed after 3 days.)

      • Thom

        Oddly, at age 62, I have never had more than an initial notice of service, with no result (I have never been on a jury, or even gotten close). I have been registered to vote continuously since age 18, and have moved a number of times, though not for the last 19 years. I have received initial calls when out of the country 2 or 3 times, but even that has not happened in many many years. The only time I got as far as having to go to the courthouse was more than 30 years ago.

        • twbb

          In my early 40’s I’ve never had even an initial notice of service.

      • rm

        I’ve been told the quickest way to get dismissed is to bring along a book to pass the time.

        • Shantanu Saha

          Would that apply to audiobooks? That’s my default mode of “reading” to pass the time nowadays.

          Though i guess listening to an audiobook during a trial would be forbidden.

    • cpinva

      “If they did the parties would have settled before hand.”

      unless it’s a case of Trump screwing one of his contractors or subs, in which case they never agree to settle, because that would set a bad precedent. if they string it out long enough, the person may just quit, or better yet, die. case resolved.

  • Haven’t been paying much attention to it, but I thought Cosby was in pretty good shape when I read that only one other woman was going to be allowed to testify. The pattern of behavior – lots of women telling the same story over decades – is what convicted him in the public mind. Without that it’s an old fashioned he said/she said thing, and those tend to get resolved in favor of he said.

    Question for all you lawyers out there: if they retry this, is there any chance that more accusers will be allowed to testify? Absent that, it’s hard to see him getting convicted.

    • Right–its easy for him to claim (which I think he did) that it was consensual if its one woman–and many people are primed to see wealthy men as a target of predatory women who consent and then withdraw consent as a tactic (this was something that throttle jockey believed with respect to athletes). The status of the accusing woman has to be really high, her net worth even higher, for juries to believe that she isn’t using the accusation as a means to acquire wealth. So the number of accusers is important since even if the women are not believed because they are all vulnerable/lowr class/could need money sheer numbers sometimes undercuts the implicit argument that women lie to extort money from men, that they accepted the treatment (consented) to get money from him originally.

      • Happy Jack

        They need some former druggies on the jury. Anyone who has experience with qualudes knows exactly what he was up to.

        • Thom

          I did not follow the trial closely at all, but presumably the prosecutor called an expert to testify to the effects of qualudes.

          • Dalai Rasta

            Expert evidence gets dismissed by jury members all the time, if the testifying expert isn’t good at holding the jury’s attention; unfortunately, the record of professional experts who are also good performers is mixed, at best.

    • twbb

      I can’t see the same judge reversing an evidentiary decision like that; it would look terrible on appeal.

      • randy khan

        It sounds like the prosecutor is going to try to get more testimony from other victims in, based on his comments after the trial.

  • vic rattlehead

    And if you eliminate people who have read about the case (which is all over the news) you are left with the incurious and uninformed. Great!

    • N__B

      All the fools in town are on our side jury. Ain’t that a big enough majority jury in any town?

    • imwithher

      The “news” is not something that is passively consumed anymore. A person can be very well educated, well informed about public issues, and not at all incurious in general, and yet completely avoid, by choice, “news” about celebrities. I don’t know who is marrying whom, who is pregnant or is about to become a father, who has been accused of what, and so on and so forth, when it comes to Hollywood, sports and other non political celebrities. I know next to nothing about the Cosby case. And yet I think I would have been a perfectly adequate juror in his case. And I don’t see why some “informed” and “curious” person who has been following the case in the media would be a better juror.

      • vic rattlehead

        I think news about a serial rapist goes a little beyond just “celebrity” news but that’s just me.

        • imwithher

          The hook is the celebrity status of the accused. That is the reason why the case was “all over the news.” Otherwise, the coverage would have been much less extensive.

          Again, I think a reasonably well informed, reasonably “curious” and reasonably well educated person can simply have said: “Well, I see that celebrity actor Bill Cosby has been accused of being a serial rapist. That is a headline I can’t avoid. I also see the case is going to trial. And that is all I really need to know about it, and I see no reason to delve any further into the coverage.” And I fail to see why such a person is per se going to be a bad juror.

          But that’s just me.

      • NewishLawyer

        I am not so sure. First this is a high-profile criminal case going to one of the biggest social conflicts of our time and faces of a changing society.

        Second, I am also an ardent avoided of a lot of celebrity news and I still manage to pick up pieces from just being alive. I think the only way to avoid the news would be to move to Eureka, become nocturnal, and live in a house with only books and no TV, internet, etc.

        • imwithher

          Not sure about what?

          Without being nocturnal, moving to Eureka, or living without TV and internet, one can quite easily avoid knowing virtually anything about the structure and strength of the case, the facts, the alleged or contested facts, the evidentiary claims, the trial strategies, etc, etc, about any given criminal case, no matter how “high profile.”

          As for the greater social importance of the case, there is plenty of time to consider that after the case is over. What one gets from the breathless, as-it-happens, tell time by the second hand, law-distorting, popular press is not necessary for assessing that significance.

          I pretty much ignore the popular press reporting of all criminal issues. Because it is sensationalist, and because it often gets just about everything wrong. And because, frankly, I don’t find it to be all that interesting, again, at least at the level of what came out today about So and So’s guilt or innocence, and that applies whether the So and So is Bill Cosby or Joe Schmoe. And whether the crime is serial rape, serial murder, assault and battery, bank robbery or whatever.

          Still not seeing why that means I would be a bad juror. I can assess the credibility of witnesses and otherwise evaluate evidence, and apply the legal standard, just as well as a juror who followed the case in the media.

        • bs

          I’m curious as to why you think Eureka (CA,i assume) is some sort of news black hole. Is it because it’s the emerald triangle? Perhaps you’re a power stoner, but that’s kinda irrelevant, unless Cannabis renders you unable to read (plus you can get it ANYWHERE). In which case you don’t need to move, to be nocturnal, or have books or the internet at all. I’d beware the TV if ya are that power stoner tho; it’ll rot ya brain.

  • DrDick

    Sadly, I am actually encouraged that there were some jurors willing to convict him. Yes I am cynical about our (in)justice system.

  • cpinva

    another big problem with this case (and why many of the other alleged victims weren’t allowed to testify) is the age factor. if this was such a horrible event, why did you wait so long to accuse him of it? this is also running through juror’s minds, as they listen to testimony, and deliberate. it’s also a prime defense point, who conveniently entirely ignores the effect drugs have on someone, which might well reasonably explain the delay in reporting. don’t want jurors thinking about that!

    • DrDick

      I think a bigger issue is that they quite reasonably expected pretty much exactly what happened. Cosby would win and their reputation would be ruined.

  • Tracy Lightcap

    Just one thing:

    Cosby wasn’t found guilty or not guilty. The jury couldn’t make a decision and a mistrial was declared. It is up to the prosecution whether they decide to try again. My guess = they probably will. It is true that the defense has seen their case, but that sword cuts both ways. Another jury might find Cosby guilty (or not) in a half hour; you never know.

    I know that people often equate a mistrial with a “not guilty” verdict because the prosecution is seldom up for a re-match. Except in cases like this. It’s a high profile case where the public has already convicted Cosby. They’ll try at least one more time, imho. Two strikes and you’re out, however.

    • Snuff curry

      Who or what are you responding to?

      • Mack Lyons

        Uh…the blog post?

        • Snuff curry

          They appear to be correcting something, but it’s not the OP.

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