them, that could prove that he knew they could not consent if they were and that there was a plan, it seems to do what they did and that's why i think it's important that the other accusers are able to testify and on those two points as a matter of law, that's why the prosecutors should be allowed that they should testify. all right, so,never give up, is what i say to other sexual assault victims throughout the country. never give in and never give up. thank you. >> a fox news alert as you're looking at norristown, pennsylvania.

the judge there has declared a mistrial in the trial of actor and comedian, bill cosby. the district attorney saying this is not over and they will retry the case again. that was gloria allred along with some of bill cosby's accusers, charged in a total of three charges in this case, in which there has now been a mistrial relating to the sexual assault of a woman. obviously, back to norristown as events happen. in the meantime, i'm leland vittert from washington and elizabeth prann, bringing us the story. >> since we've had the initial reporting of a mistrial. we've heard not only from andrew wyatt as he was escorting, exiting bill cosby out of the courtroom. we've seen this over the course of a 11 days because bill cosby

is 80 years old and legally blind. listen, yes, we heard the d.a. wants to bring this case again, it's going to cost millions and millions of dollars to taxpayers and shortly after that, we heard from gloria allred. she represents 33 alleged victims of bill cosby's accusers. she does not represent andrea constand, but she has two of the victims there today, and she had basically said, she came to the podium, we can never underestimate the blinding powers of celebrity. and she is supporting the d.a. rick leventhal, when we initially heard the fact there's a mistrial. you said the d.a. is going to be trying the case and we heard critics from one side and supporters of the another. >> yeah, and there are-- and glorious all--

gloria allred represents 33 victims and claimed that bill cosby drugged them over the decades. many of the cases the statute of limitations has run out and can be no criminal charges could be filed and no civil cases filed. and bringing in other alleged victims causes problems for the prosecution because their stories haven't necessarily been confirmed by anyone. so, it was a struggle for the prosecution. they wanted to bring in 13 witnesses who claimed similar acts were committed by bill cosby against them and as you heard gloria allred saying, only one was allowed to testify. she says if more are allowed to testify as to his bad behavior, perhaps that could sway a jury against bill cosby. we heard one of the victims say at the podium, we can never underestimate the blinding

power of celebrity and some believe that inflated a key role here. jurors spent more than 52 hours, the longest deliberation in the history of the county courthouse. they couldn't determine who was telling the truth, bill cosby who said the sex was consensual or andrea constand, a drug knocked her out and unable to resist. andrea constand told her mother and the mother called bill cosby and one of those was record recorded. and when the jury came back, she and andrea hugged. and bill cosby did look distressed. he turns 80 and knows it's not over for him, and with another trial coming, another jury and perhaps that jury will go the

other way. so, there is hope for the prosecution. the d.a. has said he'll retry the case. but certainly, hope for bill cosby as well who had proclaim proclaimed innocence throughout this two week trial and remains a free man. >> a couple of point. we heard from gloria like you mentioned, she wanted 13 women to testify in the trial and only one did and i'm curious, a lot of folks at home are wondering if the d.a. brings the case again, what's the precedence to make that change? especially if there is a statute of limitations, you know, why would we hear from 13 women in the next case if we weren't able to hear from them in this case. they talked about jury pool, but we also need to hear from other places. >> it's up to the judge and up to pennsylvania law on what would be allowed and what wouldn't. i covered a similar case

decades ago down in palm beach, florida, when william kennedy smith was accused of date raping a woman and there were several, i think more than ten other women who claimed similar offenses and wanted to testify at the trial and the judge wouldn't allow any of them to testify. that was in florida. this is pennsylvania. the judge did allow one alleged prior victim much bill cosby to testify in this trial. that woman and others testified to bill cosby's bad behavior. again, it came down he said-she said with another woman's testimony as well and who the jury would believe. there was at least one juror, perhaps more, who would not vote for guilty on any of the three aggravated indecent assault charges against bill cosby. many observers thought they'd come back with at least one guilty verdict and they could have been hung up on one of the

two other charges. bill cosby admitted to giving the woman pills and then had sex with hadder and claimed that it was consensual. but if she said she was knocked out, if you're knocked out, you can't give consent, then they could have come back with guilty on one of the three, but they didn't. they were there more than 52 hours and he told the judge they were deadlocked and they were there 9 a.m. to 9 p.m. every day, tuesday through friday, worked monday night after they got the case and back at it this morning for an hour or so before they told the judge, you know what? we cannot come up with a verdict and we knew if they didn't come up with a verdict today. that was going to be it. the key point, the d.a. says he will retry the case, bill cosby is not done yet. >> and gloria said it's too early to be celebrating. for viewers just tuning in,

this is day 11, but day six of deliberations and the jury deliberated more than 50 hours. they took 12 hours just yesterday alone and rick, i want to bring you in, because the jury had gone back and asked the judge a dozen questions. we've talked about this, and a period as to what stood out to you on some of those questions. when we talked earlier you said they were seeking the definition of reasonable doubt and the definition of "without her knowledge." >> can you elaborate on that and why it's so important? >> well, reasonable doubt, if they have any reasonable doubt, obviously, that gives them room to acquit him, which they did not do. without her knowledge, was tied to the third charge, which was that he gave her drugs without her knowledge. the other thing that stands out quite frankly, this was a five-day trial and the deliberations lasted longer than the trial itself. and they had read back of

numerous witness's testimony. nearly all of the people who testified they wanted to hear it again. so they clearly were hung up on what each person said and how they said it and were there contradictions in andrea's testimony and did the police officer support her story or support bill cosby's story and they kept coming back to the judge with more and more questions. we want to hear this read back and that read back and a couple of times the judge said, no, i'm not going to read that back, base it on your own recollections and try to come up with a reasonable verdict. elizabeth, i have spoken with some of the other allege victims who have gathered at the courthouse throughout the week. their stories are heartbreaking and what many say, they accuse bill cosby of preying on them and using his fame and their desire for a career, against them. in other words, for example, lili bernard, who was an actress, appeared on the cosby show out here on the steps

getting into it with one of the cosby supporters for an extended period of time earlier this week. she said that, you know he did this to her, gave her pills and took advantage of her, raped her, and threatened her, i'm a big deal, you're an actress starting out and trying to get a career for yourself, i'll ruin you. this according to dozens of women was his pattern. now, these women never charged him with anything, never been charged with any of those offenses. he was charged in this one case with andrea constand, the only case to result in criminal charges. what we saw was that a jury couldn't agree, possibly in part because it happened back in 2004. possibly because some of her story was conflicting. she did tell a police officer one thing, when it happened or phone calls and another thing. so, tough call for the jury. could be equally tough for the next jury when it case is

retried. >> i'll say. rick leventhal, we thank you for your report and we'll check with you throughout the morning as news warrant. we're grateful for your time, rick, thank you so much. >> thank you. >> leland has more. david: with that we'll bring in our own gregg jarrett, attorney and anchor on fox news channel monitoring as the case went on and now it's been breaking the past 40 or so minute as a hung jury in pennsylvania in the bill cosby sexual assault case. gregg, what's interesting about this, there's a difference between it sound like somebody did it and proving beyond a reasonable doubt. what did the prosecutors have to prove? what was the defense's possibilities for creating reasonable doubt in the jury's mind? >> well, for the defense, it's that the accuser, andrea constand continued to be with

bill cosby after she was allegedly sexually assaulted. and the defense says that's not the behavior of somebody who had a crime against them. this only underscores that they had an affair and that it was longstanding and consensual. so that was something, really, that the defense made a big issue of and who knows what happened inside the jury room. beyond a reasonable doubt is an incredibly high burden for anybody in a prosecution. if you want to quantify it sort of like 95 to 99% absolutely convinced he did it. unlike a civil trial where it's a preponderance of the evidence. this is-- that's more than 50%. that's different than the criminal. brought up the issue of blinding power of celebrity.

so-- for so long, bill cosby as we watch him walk into the courtroom, he was america's dad, larger than life figure. >> how is the jury selected to try at the least minimize that feeling? and at some point did you ever pull that feeling out? >> no, it's a very difficult thing to do. i think that gloria allred was absolutely wrong accusing them of allowing cosby, a celebrity to influence their decision. that's a statement by gloria allred although typical of her. she has no idea what went on in the jury room. she doesn't know whether the jurors allowed celebrity. there are jury instructions to examine only the evidence. so they may have done that.

>> gregg jarrett, we appreciate your thoughts on this. and will they retry bill cosby, when we come back. that's why i have the spark cash card from capital one. with it, i earn unlimited 2% cash back on all of my purchasing. and that unlimited 2% cash back from spark means thousands of dollars each year going back into my business... which adds fuel to my bottom line. what's in your wallet? say no to this because of my bladder? thanks to tena. not anymore! only new tena intimates has pro-skin technology designed to quickly wick away moisture. to help maintain your skin's natural balance. it goes beyond triple protection from leaks,

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>> let's continue our conversation of the breaking news and bring in our legal panel for a fair and balanced discussion. prosecutor bob bianci. and bob, i want to bring you in, the prosecutor says he'll retry this case. first, what is he up against? >> i'm sorry, could you say that again. elizabeth: what is the defense up against if he tries to retry the case? >> the inertia of the ball is downhill. you don't want to retry a case as that you have the burden of

proof, they know had your strategy. you can only imagine what it's going to look like when they have the transcripts from the trial. the inertia is for the prosecutor in this kind of case to retry and get a conviction, in my opinion. elizabeth: i want to bring you in, because we heard from gloria allred and she had a press conference and two alleged victims with her and she said what she took issue with in this particular trial, there were 13 women that she wanted to testify and only one was able to do that, whether or not that was because of the statute of limitation is beyond my pay grade. the women who weren't allowed to testify, is it a possibility we will see them in the future and could it change the outcome? >> it could change the outcome if there are more people piling on, accumulating evidence about the fact that bill cosby committed certain acts, however, it's very, very dangerous for the judge to

allow that kind of testimony. the appellate courts don't like prior bad acts coming in to influence what happened in this particular case. if you look at the testimony, kelly johnson testified that bill cosby had attacked her, and hasening to do with what happened to andrea constand. now, if they allow more victims to testimony-- >> from a prosecutor's standpoint you want that even though it's nothing to do with your case. >> as a prosecutor i agree with what he's saying. there's an evident rule 404, hate to get technical about it. elizabeth: what's that? >> you can only introduce that, relative to bad character or if you've done it before, the reason you're not allowed to mitt it. they don't want to have multiple trials within trials. as a prosecutor when i've had 404 evidence that gets admitted like was done in this case with one witness, you have to be careful that you don't pile on

bad character evidence and then in the appeal the courts look at it and say the jury was given so much data about bad character that they did not-- they were unable to assist this particular case as opposed to being poisoned by the other witnesses. so this judge and prosecutor were using restraint by not putting them all on in order to protect a conviction. the public may not like to hear that, but you can imagine you don't want to be in a courtroom or at a trial and everybody coming in for your entire life and saying bad things about you. elizabeth: a prosecutor's still going to try though? >> i wouldn't-- by the way, there's a precedent set in this case, the judge has already ruled to what extent they're going to be allowed to introduce that evidence. so, i think the prosecutor, they could certainly make the argument, but i think it will fail. there's a principle in the law where they say, once a judge has made a decision in one part of a case, you're not going to relitigate it at another trial. so i don't think that-- >>, but from a defense standpoint, she had said that

listen, it's way too early for bill cosby to be celebrating and i want to bring you in, nicholas, because he wasn't acquitted. >> he wasn't convicted, which is better. i'd like to know the count, how many people for conviction ab and how many against. and if they convince 11 jurors with you only one holdout that would lead toward a retrial and the converse is true. i would say it's really problematic for a prosecutor to bring on prior accusations. i think that most appellate courts would find it more prejudicial than probative. if it's not relevant in this case, they'll find that the defendant was prejudiced by it and overturned on appeal. i was surprised the judge allowed this in this case.

it this was not a good case for the prosecutor. even if those from the past-- >> i have to interrupt you, we'll take a quick break, but we'll be right back after these messages. z282uz zwtz y282uy ywty looking from a fresh perspective can make all the difference.

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>> just about an hour ago, the word coming down from pennsylvania that bill cosby's sexual assault trial has ended in a mistrial. the jury can't agree whether he's guilty or not guilty on what was three counts. obviously, this is about one accuser. mr. cosby had many, 60 of them. and live outside the courthouse in norristown, pennsylvania. this is inside the d.a.'s office where we're expecting a press conference from the

district attorney, who has already said that he is going to retry mr. cosby. earlier we heard from bill cosby's spokesperson and he walked out of the courtroom still free on bail. we'll come back to norristown, pennsylvania for this press conference as it happens. elizabeth: right, what hung them up we don't know. they're allowed to speak after this happens. i want to bring in bob bia in. ci, a former prosecutor and defense attorney and nick, we had you earlier and had to cut the conversation off because time was short. i want to go to you, nick, the jury pool, this was day 11, but day six of deliberations and these jury members had gone back and forth to the judge at least 12 times asking a number of questions, and i wanted to ask you, what-- when you learn that they were

going back and forth to the judge, the questions, definition of reasonable doubt and without her knowledge. what does it mean when they asked the questions. >> it reflected the debate among the jurors, a difference of opinion what a particular charge meant, what was said or the impression of what was said during testimony. so it gets to the point where they can't resolve is at the jury room, they ask for it to be read and ask for explanation for the judge. so, you could tell right from the beginning, that these jurors weren't seeing the case the same way, there was a debate. we just don't know how many people were on each side of that debate. leland:. elizabeth: but i want possible's reaction. it doesn't mean 50/50. there could be one person hung up on one thing? >> absolutely. we just don't know right now. and it's likely, given the magnitude of this case that we will find that out.

if you've been doing this as long as i have, they're asking for copious readback, as a prosecutor you're getting nervous, wow, they don't remember the testimony. they're asking for instructions on the law. when this is going on, i said we're one second away from the ultimate one bad question from the prosecution, can you please redefine reasonable doubt. it's very clear this jury was putting in a lot of time and attention, maybe there was one juror or several. but it's clear that they were challenging the facts, channelling the law and when they asked for the law, it's at minimum a mistrial. the prosecutor's case was not well received by the jury in terms of them believing guilty beyond a reasonable doubt. leland: let's talk a little about what mr. cosby was charged with in this case. there's been 60 women, about, accused him in one way or another of sexual assault. almost all of those cases involving the use of sometime

of sedative given to these women. in this case, he's charged with aggravated indecent assault because mr. cosby allegedly used his fingers to have contact with the victim. and count two, the victim was unconscious or semi conscious and could not give consent and count three, that cosby gave an intoxica intoxicant, and hung jury. what did the prosecution have to prove and what did they fail to prove? >> a couple of things. there was inconsistency in her reporting of the crime, or alleged reporting of the crime. and there was inconsistencies with her behavior and allegations here. she spoke to him or had telephone calls with him some 72 times after the incident. that says a lot to a jury, that indicates, you know, this is

not a person who might have been attacked. the circumstanceal evidence, that something else was going on between them at the time. the other issue when she was given the drugs, did she consent to take the drugs? you know, what happens after that, is not necessarily -- is considered, you know, that she couldn't give consent, i'm sorry. but they have to look at what she was thinking at the time when she took the drugs. leland: all right. bob, nicholas, stand by, as well. we're looking at pictures of mr. cosby just for our viewers' standing, this is file tape of him addressing these issues. we're still waiting for the news conference from the district attorney, a fellow who is going to be talking, a district in montgomery pennsylvania, kevin steele, let's listen in. >> the jur