The Bill Cosby prosecution raises critical issues across the spectrum of the criminal justice process: celebrity; public life and private hypocrisy; the law’s delay; and gender. Each deserves thought, reflection, and informed debate. Sunlight!
And now, the Cosby trial judge has raised an overarching issue that encompasses all of them and so clearly implicates the issue of transparency: Namely, why doesn’t the public deserve to know why the jury in such a case, where virtually everyone has an idiosyncratic opinion, was nonetheless hopelessly deadlocked? At bottom, why couldn’t the jurors convict – or, for that matter, acquit?
The jurors’ names had been withheld during trial but, post-trial, the First Amendment rights of the press prevailed, and the judge released their names when deliberations ended. No problem there. Yet, the judge also – relying on an uncommon Pennsylvania pattern jury instruction (whatever force it may have) – ordered that the already discharged jurors were literally barred from speaking about their now-completed deliberations: “Jurors shall not disclose anything said or done in the jury room by any of their fellow jurors that may indicate his or her thoughts or opinions.”
Now, in terrorist or mafia-type cases, a judge may well want to order everything, including jurors’ names, to remain secret in perpetuity to best protect jurors from potential reprisal. Yes, sometimes, when lives are at stake, a veil of secrecy is positively essential, and even a First Amendment absolutist could not reasonably argue otherwise. And there, of course, jurors could not be pursued by the press because no one would know who they are.
But the Cosby case? What could be the point of muting these jurors? In an age that urges increasing transparency, what worthwhile policy motive can there be for a court order – not a mere “encouragement” – that directs jurors in a case of such high-profiled public interest to put a lid on any discussion about their deliberations? Indeed, actually issuing an “order” enjoining jurors from speaking about the case seems grossly inconsistent with First Amendment values, especially when the public has such a strong interest in a case – this is Dr. Huxtable, after all!
One can understand why a judge might want to discourage jurors from talking to reporters. Some reporters can be downright aggressive in trying to “create” a story, a story that can potentially compromise a verdict by “reporting” a juror’s words out of context. But still, an order?
Is it because the judge is concerned about the jury pool for the retrial? It shouldn’t be – that is precisely what jury selection is for. And besides, what a juror has to say pales against the avalanche of reportage ― reportage which does and will exist regardless of whether a juror talks. And, by the way, Cosby himself has talked about (and now seemingly has abandoned) plans for a series of town hall meetings to educate people “on how to avoid accusations of sexual assault.” The press certainly doesn’t need the former jurors for its headlines.
It is possible that if jurors, when being selected in the first place, were to think that fellow jurors could share with reporters what goes on within the jury room, they might be less inclined to discuss their true thoughts about the case during the deliberation process. Think “Twelve Angry Men.” An iconic film, but pure fiction. Just imagine a real life juror talking about racial and personal issues that the film dramatized and having it repeated to the public once the jurors leave the jury room.
Yes, one can argue that jurors may be less inclined to voice their true, inner thoughts during deliberations if they knew they might be made public. But let’s look at it another way – wouldn’t the possibility that their words could be spread across the front page actually make them more faithful to their duties? Jurors should decide cases based on the facts and the application of the law as the judge directs. And while jurors certainly use their own common sense, they should not bring preconceived biases to the jury room.
And so we return to the First Amendment and transparency. Put simply, doesn’t the public have the right to know why Cosby wasn’t acquitted or convicted? Was it one person or eight who refused to convict? Was the evidence insufficient? The witnesses not credible? Is it that a juror couldn’t distinguish between Dr. Huxtable and the defendant? Or what about the juror who stated Cosby “already paid a price and suffered.”
And to make matters more confusing, it appears as if the jurors actually want to speak out. Since the order, there have been “leaks” – one juror even speaking to CNN while off camera. But the reports are inconsistent. Some say there was a 5-7 (or 7-5) split, others 6-6, and another 10-2 to convict. Isn’t it important that the public – and prosecutors generally – understand why a public figure accused of rape (and, although not part of the trial, accused of assaulting some 50 women), walks free?
Don’t we want the public to have confidence in what actually went on in the jury room if the jurors are willing to speak about it? After all, any time there is a forced shroud of secrecy over something the public might properly begin to wonder if something bad went on behind closed doors. There are too many injustices that are being disclosed nowadays, especially when secrecy had previously prevailed for no apparently good reason.
Now sitting as I am in New York, I personally have no right to complain about the use of significant Pennsylvania resources expended in bringing a second criminal prosecution against Bill Cosby – remember the prosecutor ran on a “convict Cosby” campaign. But if I lived in Montgomery County, Pennsylvania in particular, wouldn’t I want and deserve to know what actually happened? One would think that if the jurors were not ordered to be mute, the inconsistent leaks would cease and a reporter would ultimately get to the truth. And if the truth is that the case was a loser, the public should know it. For without that information being made public – or at least publicly available if the jurors chose to make it so – the prosecutors could bring another costly case that also might end badly for the prosecutors, and the public.
Doesn’t the public have a right to know what’s really going on behind closed doors in the criminal justice system – especially when a jury verdict (or non-verdict) may be a microcosm for some greater truth? Or paraphrasing Leonard Cohen: “There is – should be – a crack in everything. That’s how the light gets in.”