Cosby deadlock makes task of finding second jury even more difficult

[June 20, 2017]   By Joseph Ax

NEW YORK (Reuters) - Now that Bill Cosby's first sex assault trial has ended in deadlock, the difficulty of seating an unbiased jury for the famed entertainer's retrial may have ratcheted higher, thanks to blanket media coverage of the sensational case, legal experts say.

Montgomery County Court of Common Pleas Judge Steven O'Neill has kept secret the names of the 12 jurors who spent 52 hours in an unsuccessful effort to decide whether Cosby, now 79, drugged and sexually assaulted Andrea Constand at his home in a Philadelphia suburb in 2004.

O'Neill may have concern that naming them publicly could lead to another spate of stories on what led to the jury room logjam, further affecting potential jurors' thoughts on the case.

"It's one thing if they preview the evidence," said Wesley Oliver, a law professor at Duquesne University in Pittsburgh. "If the jury's analysis of the evidence has been previewed, that's much more of a tainting issue."

The judge will consider whether to release the jurors' names at a hearing on Tuesday.

Concerns about the case's visibility had already prompted O'Neill to import jurors for the first trial from Pittsburgh, around 300 miles (480 km) from the courthouse in Norristown, Pennsylvania, near Philadelphia.

Prosecutors, who intend to retry Cosby, filed a motion on Monday urging O'Neill to refrain from identifying the jurors, arguing that widespread coverage of their deliberations could influence jurors for the retrial.

But David Harris, a University of Pittsburgh law professor, said he doubted such coverage would make much of a difference given the countless stories already published.

"You have at least to ask the question, would it really have more influence than what's already out there?" he said.

Even so, Oliver cautioned that the emergence of a particular narrative - that Constand's testimony was not believable, or that only one or two holdouts refused to convict Cosby - could affect potential jurors' view of the case.

Also on Monday came the first public comments from a Cosby juror - one of six alternates who heard the evidence but did not deliberate - who said he was "sick" to hear a mistrial declared.

Mike McCloskey told a Pittsburgh radio station that he had served as an alternate and would have voted to convict Cosby.

Juror names are normally a matter of public record and judges must justify the decision to seal them, legal experts said.

In some cases, such as terrorism or mob trials, anonymity is aimed at ensuring jurors' safety.

It has become increasingly common for judges to keep juror names secret during high-profile trials, though not after the case has ended, said Paula Hannaford-Agor, who studies juries for the nonprofit National Center for State Courts.

"Once the risk to the integrity of the trial has dissipated, there is no legitimate reason for maintaining the anonymity of the jurors," she said.

Some jurors in highly visible cases have endured post-trial harassment. After Casey Anthony was acquitted of suffocating her 2-year-old daughter in 2011, one juror quit her job and moved due to death threats she received, Hannaford-Agor said.

(Reporting by Joseph Ax; Editing by Scott Malone and Jonathan Oatis)

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