Jury selection in the retrial of Bill Cosby erupted in acrimony Wednesday after the prosecutors moved to strike a black woman from the jury pool, prompting the defense to claim racial discrimination.
The subsequent objection devolved into bitter sniping among opposing counsel, infuriating the judge overseeing the sexual assault retrial scheduled to begin Monday.
Minutes later, Cosby defense attorney Kathleen Bliss stood up and hinted about overhearing a prosecutor on the case making a racially discriminatory comment this morning during a break outside the courtroom.
Montgomery County District Attorney Kevin Steele, who is leading the prosecution, called the allegation of racism “ludicrous,” pointing out that two of eight jurors impaneled are African-American. He accused defense attorneys of trying to inject race into the already-emotionally charged case.
"I think unfortunately, [this is] not being done for this court,” he told O’Neill. "It’s being done for the media behind us."
Judge Steven T. O’Neill then decided to halt proceedings and summon attorneys to his chambers so he could hear the alleged comment.
The allegation was never addressed again in open court on Wednesday, and spokespersons for the defense and prosecution and a county court administrator all declined comment -- leaving a puzzled courtroom full of reporters wondering about the genesis of such a damning but unsupported claim.
The trouble began late Wednesday morning after prosecutors used one of seven peremptory challenges to strike the would-be juror from the pool, and defense attorneys claimed the strike was racially motivated.
The defense then mounted what is known as a Batson challenge, which can be used during jury selection when one side feels that opposing counsel is dismissing potential jurors based solely on race, gender or age.
Judge O’Neill lectured the defense for failing to anticipate this possibility and pre-brief him and the prosecutors on the relevant case law. Prosecutor M. Stewart Ryan even stormed out of court, saying he was going to his office to read the case law, claiming he hadn’t been given a copy by defense attorneys.
After a break, defense attorney Bliss argued that she was “suspicious” of the intent behind the strike.
“By all appearances [the potential juror] was a perfectly qualified juror who stated that she could be fair and impartial, after screening through all the questions,” Bliss told the judge. “She passed every single stage as a fair and impartial juror. There is thus no other explanation but for her race.”
Bliss told the judge that of the 240 potential jurors summoned at random from Montgomery County, only 10 were African-Americans.
“She’s the only African-American left,” Bliss claimed, referring to the latest pool of 120 potential jurors that have been summoned. “This man, the defendant, who is facing the rest of his life in jail, is African-American,” Bliss said, pointing at Cosby.
In 2016, African-Americans comprised 9.6 percent of the population of Montgomery County, which was 80.4 percent white and 7.7 percent Asian, according to the U.S. Census Bureau.
Bliss went on to make the stunning allegation of racism against the unidentified Cosby prosecutor, whom she claimed made the alleged comment.
O’Neill later upheld the prosecution’s strike of the potential African-American juror and overruled the defense’s objection.
Five women and seven men were chosen as jurors. Two of the 12 jurors are African-American.
Cosby is facing three felony counts of sexual assault for allegedly drugging and abusing Andrea Constand at his Pennsylvania home in 2004. He has denied the charge and said any sexual encounters he ever had with Constand were consensual.
Last summer, Cosby's original trial ended with a hung jury and in a mistrial.
This time around, five additional women who have accused Cosby of drugging and molesting them will take the stand as prosecution witnesses to corroborate Constand’s account.