Cosby attorneys list 11 problematic rulings for Appeals Court
By Stacy M. Brown
Bill Cosby’s attorneys are confident that there are significant legal (and more importantly, appealable) issues stemming from his trial last spring on aggravated sexual assault.
The responsibility for what they believe to be problematic rulings and errors and oversight rest squarely on the shoulders of Montgomery County, Pa., Judge Steven T. O’Neill.
In a new court filing seeking to win Cosby’s release from prison and overturn his conviction, Cosby’s lawyers, Brian W. Perry and Kristen L. Weisenberger, identified 11 of the most problematic rulings by O’Neill before and during the trial and at sentencing.
The issues are as follows:
Judge O’Neill abused his discretion, erred, and infringed on Cosby’s constitutional rights by failing to excuse juror No. 11 where evidence was introduced of the juror’s inability to be fair and impartial. Specifically, a prospective juror testified that Juror No. 11 prejudged guilty prior to the commencement of trial. Moreover, the trial judge abused its discretion, erred and infringed upon Cosby’s constitutional rights by refusing to interview all jurors who were in the room with juror No. 11 to ascertain whether they heard the comment (“We can all go home, he’s guilty”) and, if so, the impact that the comment had on them.
O’Neill abused his discretion, erred, and infringed on Cosby’s constitutional rights in allowing Barbara Ziv to testify as an expert witness pursuant to the Pennsylvania statute regarding an offense that occurred 12 years prior to the conception of that statute, and in violation of Cosby’s rights under the fifth and sixth amendments of the U.S. Constitution, and under Pennsylvania law where it notes that the statute is unconstitutional and not retroactive in application.
O’Neill abused his discretion, erred, and infringed on Cosby’s constitutional rights by failing to disclose the judge’s biased relationship with former Montgomery County District Attorney Bruce Castor. O’Neill confronted Castor for, in his opinion, exploiting an extra-marital affair in order to gain a political advantage in their 1999 race for Montgomery County District Attorney. Castor’s conduct as District Attorney in 2005, however, was a material and dispositive issues in the Cosby case; specifically, a significant question arose as to whether Castor agreed in 2005 that the Commonwealth would never prosecute Cosby for the allegations involving Andrea Constand and whether he relayed that promise to Cosby’s attorneys. Cosby’s attorneys argued that the Commonwealth was precluded from prosecuting Cosby due to Castor’s agreement to never prosecute Cosby for the Constand allegations. The trial court erred in failing to disclose its bias against Castor, and in O’Neill failing to recuse himself, prior to determining the credibility of Castor and whether he made the agreement with Cosby. O’Neill similarly erred in failing to disclose his bias or recuse himself prior to ruling upon the admissibility of the defendant’s civil deposition, where the trial court was again determining the credibility of Castor.
The court abused its discretion, erred, and infringed on Cosby’s constitutional rights in denying a petition for a Writ of Habeas Corpus filed on Jan. 11, 2016, and failing to dismiss the criminal information where the state, in 2005, promised to never prosecute Cosby for the Constand allegations. Moreover, given the agreement that was made by the Commonwealth in 2005 to never prosecute Cosby and Cosby’s reliance thereon, the state was also estopped from prosecuting Cosby.
O’Neill erred in permitting the admission of Cosby’s civil deposition as evidence at trial in violation of the Due Process Clause of the state and federal Constitutions and in violation of Cosby’s right against self-incrimination. Moreover, the prosecution was [barred by law] from arguing the admission of the civil deposition at trial, as Cosby gave this deposition testimony in reliance on the promise by Castor that Cosby would never be prosecuted for the Constand allegations.
The court abused its discretion, erred, and infringed on Cosby’s constitutional rights in admitting five prior “bad act” witnesses. The witness’ allegations were too remote in time and too dissimilar to the Constand allegations to fall within the proper scope of the law. Further, during the first trial the court allowed one prior bad act witness; however, after that trial resulted in a mistrial, O’Neill allowed prosecutors, without explanation or justification, to call five prior bad act witnesses in violation of Cosby’s Due Process under the state and federal constitutions.
O’Neill abused his discretion, erred, and infringed on Cosby’s rights in allowing the district attorney to prosecute Cosby where the offense did not occur within the 12-year statute of limitations and prosecutors made no showing of due diligence. Moreover, the jury’s verdict was against the weight of the evidence concerning whether the offense occurred within the 12-year statute, the delay in prosecuting Cosby caused him substantial prejudice and infringed on his Due Process under the state and federal Constitution, as a material witness to the non-prosecution agreement died within that 12-year period.
O’Neill abused his discretion, erred, and infringed on Cosby’s constitutional rights by permitting the state to introduce Cosby’s deposition testimony regarding Quaaludes. This testimony was not relevant to the Constand allegations; was remote in time; backdoored the admission of a sixth prior bad act witness; and constituted bad act evidence that was not admissible. Further, this testimony was highly prejudicial in that it included statements regarding the illegal act of giving a narcotic to another person.
O’Neill abused his discretion, erred, and violated Cosby’s rights by denying Cosby’s objections to the court’s charge and including or refusing to provide certain instruction. Specifically, O’Neill abused his discretion, erred and violated Cosby’s rights by 1) providing to the jury an instruction on the “consciousness of guilty” where this charge was not appropriate to the facts before the jury; 2) refusing to provide an instruction, consistent with law, that the jury may consider the circumstances under which the case was investigate; and 3) by failing to provide the jury the instruction on prior bad act witnesses as suggested by the defense: “Indeed, the trial court’s charge effectively instructed the jury that Cosby was guilty of the uncharged alleged crimes and failed to properly explain how this unchanged, alleged misconduct should be consider,” Cosby’s lawyers wrote. Moreover, O’Neill abused his discretion, erred and violated Cosby’s right to Due Process by refusing to provide the jury a special interrogatory on whether the offense occurred within the statute of limitations.
O’Neill abused his discretion, erred, and infringed on Cosby’s rights in finding that Cosby was a sexually violent predator. The state relied on unsubstantiated, uncorroborated evidence not admitted at trial; specifically relying on hearsay evidence that there were approximately 50 more women making allegations against Cosby.
The Judge abused his discretion, erred, and infringed on Cosby’s rights in applying the sexual violent predator provisions for a 2004 offense which violated clauses of both the state and federal Constitutions.
Prosecutors have 30 days to respond to Cosby’s filing. Meanwhile, the state Superior Court also can decide whether or not it wants to hear the case.
If it does hear the case, the Superior Court normally publishes a briefing schedule for the appeals process.
“Mr. Cosby is doing well and he knows that this is about Civil Rights and that’s what he’s focusing on,” said Andrew Wyatt, a longtime spokesman for Cosby, who is serving a three to 10 year sentence at a prison near Philadelphia.