On June 15, after over thirty hours of deliberations and several requests
for read back of testimony, the Cosby jury indicated that it was deadlocked.
Matthew Galluzzo, a criminal defense attorney and former Manhattan sex
crimes prosecutor, tweeted the night before that he expected the jury
to hang (meaning, to be deadlocked). The judge told the jury to continue
deliberating (this is called "giving an Allen charge") and denied
a defense motion for a mistrial as being premature. However, Mr. Galluzzo
expects the jury to be unable to reach a verdict.
In an American criminal case, the jury's decision as to a particular
charge must be unanimous, meaning that all twelve jurors must agree as
to the verdict (guilty or not guilty) for a specific charge. A jury can
convict unanimously on some charges and acquit unanimously on other charges
in the same trial (and that happens quite frequently). A jury indicates
to the court and judge that it has reached a verdict by sending out a
written note that they have reached a verdict, and the jury emerges to
announce the verdict in the courtroom.
Sometimes, as is the case in Cosby's trial, a jury sends out a note
indicating that the jury cannot agree as to a particular charge (or any
charges). Typically, a judge will then tell the jury that they should
continue to deliberate. There is a very specific text that judges are
usually required to read back to their deadlocked juries, and this text
is typically referred to as an "Allen charge" (based upon a
Supreme Court case with that name). An Allen charge is meant to encourage
the jury to continue to try to reach a unanimous verdict, and reminds
the jurors of the importance of arriving at a conclusion in light of the
interests of the parties and the time and resources already spent trying the case.
Sometimes, after an Allen charge, a jury returns with a unanimous verdict.
Other times, it comes back and indicates that it still cannot agree. Frequently,
the jurors ask for evidence to be presented to them again or for "read
back" of certain portions of the testimony. If the jury ultimately
cannot agree, then a judge may declare a mistrial (based upon a defense
motion), meaning that the case would have to be tried over as to any counts
on which a verdict was not reached. A court can give multiple "Allen
charges" before finally declaring a mistrial, however, though the
Allen charging cannot be overly coercive of the jury, either.
Once, a jury in a case that Mr. Galluzzo tried sent a note after several
Allen charges that stated, essentially, "We are deadlocked and will
remain so until the end of time." Basically, the jury told the judge
that it would be impossible for them to reach a unanimous verdict and
that he should stop giving them Allen charges. At that point, the judge
declared a mistrial.
Defense attorneys generally consider "hung juries" or mistrials
to be victories. After all, prosecutors frequently decide not to try their
cases again after having failed to secure convictions the first time,
so defendants, as a practical matter, may escape conviction after mistrials.
In a high profile case such as this one, one can expect the jurors to
be "polled" extensively as to their opinions on the evidence,
and the attorneys will attempt to "count the votes" to see whether
it was 11-1 in favor of conviction or vice versa, for example. These sorts
of inquiries frequently play big roles in prosecutors' decisions as
to whether to try their cases again or simply dismiss the charges after
This trial has in some ways been fairly simple and straightforward, as
there were not a lot of witnesses and there was no forensic evidence.
However, the main witness's credibility may have been shaken in the
minds of some jurors by some prior inconsistent statements to law enforcement.
They jury may also be confused by some of the complainant's behavior
after the alleged sexual assault. There are also some very large and murky
issues regarding the nature and scope of consent that could be very much
at issue in the jury deliberations.
In sum, Mr. Galluzzo anticipates that there will ultimately be a mistrial
on all of the charges in this case, and that the breakdown of votes will
be fairly evenly split.* Thus, the prosecution will have a hard decision
to make as to whether to try the case over or simply abandon the effort.
* In the alternative, if there is no mistrial, Mr. Galluzzo suspects that
there could be a conviction as to one charge only: assaulting Ms. Constand
while using drugs to substantially inhibit her ability to consent. To
him, the prosecution's case is strongest as to that charge, and weaker
as to the other because there could be questions as to whether she might
have consented to sexual contact without the pills that he gave her, or
whether she was fully unconscious at the time of the sexual assault. But,
he still thinks that a mistrial as to all three charges is probably more likely.
(Note: Mr. Galluzzo will appear on Curtis Silwa's radio show on June
15 to further discuss the case.)