After percolating out of sight, the subject of a mistrial in
the Bill Cosby sexual assault case burst into open court Friday.

Judge Steven T. O’Neill challenged Cosby’s lead lawyer on a
mistrial motion as a deadlocked jury deliberated into its fifth day. Cosby is
charged with three counts of aggravated indecent assault of former Temple
University basketball staffer Andrea Constand in 2004.

“You made motions for mistrial. And as you make them it
appears the court is being ignorant to you,” O’Neill said to the defense
lawyer, Brian McMonagle. “I have no ability to do anything but what I’ve done.”
He rejected the motion.

McMonagle argued that it was fruitless to continue
deliberations.

“What we got now is jurors trying to overcome other jurors
by reading testimony in the case,” he said. “We’re well past the point of free
will.”

The defense’s issue was the length of deliberations, which
Friday evening entered its 50th hour, as well as jurors asking for extensive
recounting of testimony.

But O’Neill shot those arguments down.

“Get me the law that supports what your rhetoric keeps
fostering,” the judge said. As long as the jury is deliberating he could and
would not stop them, and would consider declaring a mistrial only after the
jury returned with another deadlock, he said. “If they say they can’t give me a
unanimous verdict, I intend to act.”

O’Neill then called the jury into the courtroom and asked
them to keep working and let him know if they had reached a stalemate.

He also referred to four previous mistrial requests, which
were made in his chambers, out of public view, and not known before Friday. He
moved this one to open court, he said, because he wanted the public and news
media to be aware he was not pushing the jury to do anything they weren’t
already doing.

O’Neill had appeared impatient Thursday night after a news
conference by Cosby spokesman Andrew Wyatt exhorting the judge to call a
mistrial.

Earlier Friday, O’Neill addressed Cosby on the issue of
mistrial, an unconventional address observers believed was a response to the
Wyatt news conference. In talking to the defendant, O’Neill alluded to issues
being “explain[ed] out in the media” and wanting to “understand the decision
for requesting a mistrial is yours and yours alone.”

He also said to Cosby: “Your counsel has now made a number
of motions for mistrial. Let me make sure you understand” what’s at stake. He
then asked the entertainer a series of questions on whether he had freely given
his approval.

“Every time Mr. McMonagle says [mistrial], I am
understanding that you are consenting to what he has said,” O’Neill said. Cosby
answered the yes-or-no questions emphatically from his defendant’s chair.

The defense has repeatedly told reporters that it would
consider a mistrial to be a win.

But despite the push by Cosby’s camp—and a public eager for
resolution to deliberations that have lasted as long as the trial itself—don’t
expect a quick mistrial call. Legal experts noted the judge has a lot of
latitude in keeping deliberations going.

“The judge doesn’t have any obligation to accommodate the
defense,” said Lisa Houle, a former Los Angeles County prosecutor based in the
South Bay. “I don't know any legal authority that would allow them to call the
shots and have the judge call it quits.”

She said jurors would have to come back and say they’re
hopelessly deadlocked for the judge to consider calling a mistrial, and even
then he might be reluctant. That said, Houle predicted a mistrial is where the
case would probably go—eventually.

“I don't think jury wants to give up, and there seem to be
significant issues that would [prevent a verdict,]” she said.

Indeed, the jury Friday continued seeking to review
testimony, requesting that the judge define a linchpin of the defense’s legal
argument.

“What is reasonable doubt? (The definition),” came the jury
request.

The question suggested the panel was mired in whether the
defense had cast enough legal doubt on the prosecution’s case.

O’Neill then read the definition, which included a doubt
that would cause a “reasonable person” to “hesitate before acting on a matter
of importance” as well as a doubt that was not “manufactured to avoid the
carrying out of an unpleasant duty.”

The jury also requested that the judge read aloud portions
of deposition testimony from the trial involving Cosby’s past purchase of
Quaaludes to facilitate sex with women.

“Was it in your mind you were going to use the Quaaludes for
young women, plural, that you were going to have sex with?” a questioner had
asked.

“Yes,” Cosby had said in the deposition, adding that
Quaaludes “happened to be the drug that young people, kids were partying with,
and I wanted to have it just in case.”

It was the first significant request by the jury to review a
piece of testimony that did not specifically concern the night of the Constand
encounter, and it suggested that jurors were trying to widen their scope as
they sought to break their stalemate.

On Friday afternoon the jury continued to expand the breadth
of questioning even further—suggesting, to some observers, they weren’t making
a lot of headway. The panel requested the testimony of Constand’s mother about
a phone call she had with Cosby as well as Constand’s phone records.

That more diffuse focus — combined with the fact that the
jury approached its 50th hour of deliberations Friday evening — led some
observers to think O’Neill might not send jurors back if they reported another
deadlock. The order for a deadlocked jury to resume deliberations, known as the
Spencer Charge, was already administered by O’Neill on Thursday morning; a
second would be somewhat rarer, especially after that much time had passed.

The defense could also continue to bring case law to the
judge to bolster its argument that periods of quiet from the jury should lead
the judge to unilaterally call a mistrial, though O’Neill has thus far rejected
the precedents presented to him as not sufficiently similar to this trial.

O’Neill continued to press the jury to find a verdict.

“I hope you are well-rested,” he told jurors. “Your form of
questions does indicate you are deliberating, which is exactly what the court
[wants].”

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