Although Montgomery County District Attorney Kevin Steele vowed repeatedly to retry comedian and actor Bill Cosby on the same charges of drugging and molesting a woman at his home in 2004, it is not at all certain, for many different reasons, that there will be a subsequent criminal trial, says public interest law professor John Banzhaf, who correctly predicted a hung jury.

Bill Cosby
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An obvious major consideration will be to find out how and why the jurors split. If it turns out that most of the jurors were unwilling to convict Bill Cosby on any of the three charges, a retrial is unlikely to be successful, so a wise prosecutor would probably seek some kind of face-saving plea deal.

Such a deal might include, for example, some kind of apology, a large contribution by Cosby to one or more anti-rape organizations, a speaking tour where Cosby speaks out against rape, etc. On the other hand, if most of the jurors were quite willing to convict, and there were only one or two recalcitrant holdouts, it would make more sense to try to case again.

Both sides will also try to find out what issues or evidence created the problems. If many jurors refused to vote guilty only because one or two pieces of evidence were not presented by the prosecution, and those things can easily by added in any new trial, a retrial becomes more likely. After all, virtually all litigators have been surprised, in talking with jurors after real or mock trials, to learn that it was a failure to present a bit of readily available evidence which doomed their case. In such cases, a do-over would be welcome, says Banzhaf.

On the other hand, prosecutors may conclude that many jurors simply could not reconcile themselves to believe that someone they have grown to know and love as “America’s Dad” could be guilty of such a crime, or that justice would really be served by putting an elderly and virtually blind man into prison for the remainder of his life. Thus, for reasons generally known as jury nullification, they will simply – and entirely lawfully – refuse to convict no matter how clear and convincing the evidence.

After all, jurors may conclude that the crime, while obviously serious, is far less serious than rape, armed robbery, selling drugs, etc.; that Bill Cosby, because of his age and infirmities, as well as the notoriety of his modus operandi, no longer presents any real danger to women; or that convicting an African American icon would further exacerbate racial tensions at a crucial time. Since these factors cannot be changed by prosecutors, nor easily defeated by clever arguments, a retrial may not be warranted.

It is also possible that one or more key witnesses, tired and/or discouraged by the lengthy trial and the perceived harm to their image, will not agree to cooperate in any new trial.

Most prosecutors, faced with a mistrial caused by a hung jury, will initially insist publicly upon their dogged determination to retry the case, just as defendants will maintain that they will never agree to a plea bargain because of their strong faith in our jury system – essential postures to maintain the strongest possible bargaining position. However, often both sides are more than ready to meet, often in secret and/or through intermediaries, to find a resolution which allows both sides to save face and claim at least a partial victory.