Cosby Lawyers take first step in appeal process
Citing doctored evidence, including an exclusive NNPA Newswire report last month that revealed tapes used to convict Bill Cosby were doctored, attorneys for the comedian have formally begun the process they hope will win his re-lease from a Pennsylvania prison where he has spent the past two weeks.
More importantly, Attorney Joe Green and the other members of Cosby’s team are hoping their motion for post-sentencing relief is just the start of clearing the comedian who was found guilty of three counts of aggravated indecent assault in April.
Last month, Montgomery County Judge Steven O’Neill sentenced Cosby to serve three to ten years in state prison.
In their new court filing, Cosby’s attorneys said the “Verdict was against the weight of the evidence with respect of whether the offense occurred, if at all, within the 12-year statute of limitations.”
The defense introduced business records demonstrating that Cosby was not present in the place alleged during the time that Andrea Constand asserted. O’Neill refused to rule on the statute of limitations and, almost inexplicably, referred the matter to jurors to decide but the jury panel never considered it.
Green also highlighted in his motion that tape recordings between Cosby and Gianna Constand, Andrea’s mother, that were used to convict Cosby were doctored or altered in some way. “After discovered evidence in the form of a forensic examination of the Gianna Constand tape discloses that the excerpt played at trial was not authentic,” Green wrote in court filings this weekend.
“Had this information been known at the time of trial, the tape evidence would not have been admitted, or if admitted would have come in subject to powerful challenge leading the jury to doubt its reliability. A different verdict would likely result if a new trial were granted,” he said, citing other cases in which doctored evidence caused a verdict favorable to the defense.
Cosby’s lawyers argued that the imposition of the sentence of three to 10 years of total confinement, which is the maximum consistent with the standard range of crime, was not necessary to address the nature and circumstances of what happened between Cosby and Constand in light of the “history, character and condition” of Cosby.
The references of history, character and condition spoke to Cosby’s philanthropic efforts, previously spotless record and his blindness. “The court abused its discretion by giving undue weight to retribution over rehabilitation, deterrence and incapacitation,” Green argued.
“As a result, the sentence was not commensurate with incapacitation to protect the public from an 81-year-old, blind defendant who had not even been accused of any criminal conduct occurring within the past ten or more years.” Green also argued that the court was wrong to consider and rely on, as relevant to sentencing, allegations of uncharged, similar misconduct.
Several legal experts maintain that there are many obvious appealable issues that should have influenced O’Neill to allow Cosby to remain on house arrest on bail while the legal process continues.
“Bill Cosby was tried and convicted without any actual evidence that his crimes had ever been committed, no police reports, no medical records, no collaborating witnesses, just the accusations of women recalling events that occurred 30 years in the past,” said Bob Law, the chairman of the National Black Leadership Alliance.
“And that is in opposition to the legal principle that the accuser cannot bring the action and also be the witness without any collaborating evidence,” Law said.
Lawyers and representatives for Cosby have pointed out a large listing of trial errors, including:
- Judge O’Neill failed to dismiss the case once Cosby’s team proved that the 12-year statute of limitations had expired. O’Neill instead asked the jury to decide whether the statute had expired, and the jury did not consider it.
- Judge O’Neill refused to permit the jury to hear former District Attorney Bruce Castor’s testimony that accuser Andrea Constand was “not credible,” and had “repeatedly changed her story.”
- Judge O’Neill did not disclose personal grudges and non-professional interactions between himself and Castor. A past affair between O’Neill and a former assistant district attorney, serving under Castor (who is currently a judge presiding in the same Montgomery County courthouse), was thought to be revealed to O’Neill’s wife by Castor. In 2005 – 2006 Castor refused to bring charges against Cosby.
- Judge O’Neill refused to remove a juror who openly said Cosby was “guilty, we can go home,” before testimony in the trial had begun.
- Judge O’Neill refused to penalize two racially-charged comments made by both assistant district attorneys.
- On several occasions during the trial, Judge O’Neill admonished and berated Cosby’s lawyers in front of the jury and at times, praised the prosecution.
- A juror admitted to an unspecified personal relationship with one of the detectives assigned to the Cosby case.
- O’Neill took no action as two jurors openly flirted with prosecutor Kevin Steele’s media representative, Kate Delano, and attorney Lisa Bloom during the trial.
- O’Neill took no action as another juror repeatedly winked at other Cosby accusers seated in the courtroom.
- O’Neill took no action as attorneys Gloria Allred and Lisa Bloom appeared to give instructions to their clients, seated in the courtroom’s gallery, including motioning to them when they should cry.
The new filing includes additional grounds for which Cosby should receive a new trial. Other appealable infractions include:
- Trial Judge Steven O’Neill allowed testimony from other accusers who had nothing to do with the case.
- O’Neill refused to allow Cosby’s team to call witnesses who had given sworn testimony that Constand planned to “shake down” Cosby and lured him into a relationship to do so.
- Despite compelling evidence presented by Defense Attorney Thomas Mesereau that appeared to show that the statute of limitations had expired on the more than decade old case, O’Neill refused to rule, instead asked that the jury consider it which they did not.
- O’Neill didn’t disclose an ongoing feud he had with former District Attorney Bruce Castor, who convinced Cosby to waive his Fifth Amendment rights and sit for a deposition. In exchange, Castor agreed that the deposition could never be used against Cosby in any Pennsylvania criminal proceedings. The deposition was the primary tool used to convict Cosby.
- O’Neill refused to recuse himself even after it was discovered that his wife donated money to a women’s group that protested against Cosby.
- Several jurors were allowed to remain on the jury despite revealing that they were either neighbors of court officials or had personal relationships with detectives on the case.
- Portions of Cosby’s civil deposition were admitted as evidence even though defense attorneys argued that the deposition shouldn’t be admitted at all. They also argued that if the judge was going to admit the deposition, he should allow the entire 87-page document to be presented to the jury, instead of the portion allowed, which was presented without context.
“The deposition transcript does not show Cosby drugged women without their knowledge in order to incapacitate them so that he could rape them,” said Oxford alum Jonathan Farley. “But, a juror admitted that he voted to convict Cosby based on this false belief,” Farley said.
If Castor hadn’t promised Cosby that the deposition could never be used against him, Cosby could — and likely would — have exercised his Fifth Amendment right to remain silent, said Davis. “Years later, [Kevin Steele,] a new trophy-hunting District Attorney, decided to violate the promises of the prosecutor’s office and filed charges against Cosby,” he said.
Castor testified during a preliminary hearing in the Cosby case that he did indeed have what he called a binding agreement with Cosby and that the deposition should not be used.
The new DA, Kevin Steele, argued that the portions of the deposition that are damaging to Cosby should be used. O’Neill sided with Steele.
“That is tantamount to the judge ensuring a conviction by sneaking evidence in the back door that suggests Cosby is a bad man who has sex outside of marriage and who does drugs and provides drugs to women who are having a relationship with him. Cosby never said in his deposition that he gave them drugs so that they would be unconscious so that he could rape them. This is a pure lie and fraud committed by the mass media,” Davis said.