A retrial of comedian Bill Cosby on sexual assault charges is likely to offer major advantages to the defense, former prosecutors and defense lawyers say, but the enormous publicity surrounding the case might 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 on Saturday declared a mistrial 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 be “exceptionally difficult” for the state to win a second trial.
Callan noted the defense 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 defense.
“From my perspective, a retrial is never an advantage because, as a prosecutor, you put your best case on,” she said.
New York defense lawyer Harvey Fishbein said Cosby’s lawyers had shown fewer of their cards, resting without calling any witnesses. Cosby also did not testify.
“They might decide to re-evaluate that position,” Fishbein said.
The prosecution is also under more pressure than the defense in terms of expending public resources, he said, adding that 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.
However, that calculus could also change in high-profile cases, said Fishbein, who had that experience while representing Pedro Hernandez, who was charged with murdering six-year-old Etan Patz 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, Fishbein said.
Fishbein said he sees similarities with the Cosby case in terms of public opinion.
“There’s a lot at stake here with the fact that so many women have filed complaints against him,” Fishbein said. “It’s going to be very hard to find a fair and impartial jury anywhere in the northeast.”
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