The judge who presided over Bill Cosby's sexual-assault trial said he will decide Wednesday if he will make public the names of the jurors who were unable last week to reach a unanimous verdict in the 79-year-old entertainer's case.
In a hearing Tuesday on a petition by media organizations to release the names, Montgomery County Judge Steven T. O'Neill said he was still weighing how to balance Cosby's right to a fair and impartial trial against the presumption that juror names are public information. Complicating matters is the fact that Cosby's trial ended Saturday in a mistrial and prosecutors have said they will retry him as soon as later this year.
"Would it have a chilling effect on future jurors?" O'Neill said Tuesday. "We just don't know."
The hearing came a day after one alternate juror – Mike McCloskey of Pittsburgh – became the first to publicly discuss the case, doing so in a phone call to a Pittsburgh radio station. McCloskey was not privy to the five days of deliberations but told WDVE-FM he would have voted to convict Cosby and was "ridiculously sick" when he learned the seven men and five women on the panel were hopelessly deadlocked.
No other jurors have come forward, and the defense lawyers and prosecutors have said they do not know if they were close to a verdict or what the issues were that plagued their discussions.
And although he did not indicate which way he would rule, O'Neill made clear Tuesday that he had reason to pause before identifying the rest of the jury members.
He cited the "unprecedented worldwide" coverage of the case and what he said were "many, many" attempts by journalists during the trial to photograph the jurors at the unidentified Montgomery County hotel where they were sequestered.
The judge also said he had heard anecdotally that at least one juror had been approached by a reporter since returning home to Allegheny County and that another had been offered "high sums" of money to appear on a television news broadcast.
"That is a very real concern of this court if going forward we have to get 12 more [jurors] and six more alternates," the judge said.
Pennsylvania law considers the identities of jurors to be public information but grants judges discretion to keep them under wraps under certain conditions.
O'Neill sealed the names immediately after jury selection last month in Pittsburgh, citing the media scrutiny. That intense spotlight and its impact was one reason the judge had granted a defense motion to move jury selection away from Montgomery County, despite its being the jurisdiction where prosecutors said Cosby drugged and sexually abused Andrea Constand in 2004.
O'Neill had no intention of releasing their names after trial, he said, until a request this month from a group of media organizations led by Philadelphia Media Network, parent company of the Inquirer, the Daily News, and Philly.com, prompted him to reconsider.
Prosecutors and Cosby's lawyers opposed release of the names, saying Tuesday that granting the media access to jurors' identities would jeopardize the entertainer's prospects at a retrial and expose jury members to potentially invasive hounding from the media.
In a letter to the judge, Cosby lawyer Brian J. McMonagle wrote that the threat of jurors publicly airing their views on the evidence or details of their deliberations "could prevent Mr. Cosby from getting a fair trial in the future."
Eli Segal of Pepper Hamilton LLP, who represented the media organizations, pointed to prosecutors' and defense lawyers' own words in arguing for release of the names, including an extensive news conference Montgomery County District Attorney Kevin R. Steele's office organized after the mistrial decision Saturday and a scathing statement from Cosby's wife, Camille, that a publicist read from the courthouse steps.
"If a juror were to be asked about deliberations and there were to be press coverage about those deliberations, I don't see what marginal difference that would make given that the prosecution and the defense have spoken publicly about this case, including evidence that was not heard in court," he said. "What exactly are we afraid of here?"
Before discharging them Saturday, O'Neill advised jurors that they were free to talk about the case in public if they chose to do so but urged them not to reveal any details of the jury-room debate.
Cosby is accused of drugging and assaulting Constand, a former Temple University athletics employee, at his Cheltenham home. He has denied attacking her and maintained throughout his trial that their sexual liaison was consensual.