Crusader Staff Report
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, rests 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.
Throughout the filing Cosby’s attorneys state that O’Neill “abused his discretion, erred, and infringed on Cosby’s Constitutional rights.”
Highlights of the 11 challenges include O’Neill’s alleged failure to excuse a juror “where evidence was introduced of the juror’s inability to be fair and impartial.”
Defense attorneys further say O’Neill should not have allowed Dr. Barbara Ziv to testify as an expert witness, in doing so he violated Cosby’s fifth and sixth amendment rights. Ziv’s testimony was pursuant to the Pennsylvania statute regarding an offense that occurred 12 years prior to the conception of that statute.
Further in question in the rulings is O’Neill’s “biased relationship with former Montgomery County District Attorney Bruce Castor.” In O’Neill’s opinion, Castor exploited an extra marital affair in order to gain a political advantage in their 1999 race for Montgomery County District Attorney. The defense makes the argument that the judge erred in failing to disclose his bias against Castor, or to recuse himself.
Also, “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.”
In denying a petition for a Writ of Habeas Corpus filed in January, 2016 Cosby’s attorneys say the court abused its discretion and infringed on Cosby’s rights by failing to dismiss the criminal information where the state promised in 2005 to never prosecute Cosby for the Constand allegations.
The judge erred again Cosby attorneys say, in permitting the admission of Cosby’s civil deposition as evidence at trial. They say this violated the Due Process Clause of the state and federal Constitutions and was in violation of Cosby’s right against self-incrimination.
Witness allegations by five prior “bad act” witnesses were too remote in time and too dissimilar to the Constand allegations to fall within the proper scope of the law so says the defense. Further they state that O’Neill allowed prosecutors, without explanation or justification to call the five “bad act” witnesses, again in violation of Cosby’s Due Process under state and federal Constitutions.
The delay in prosecuting Cosby caused him substantial prejudice and infringed on his Due Process as a material witness to the non-prosecution agreement within the 12-year period, state appellant Cosby’s lawyers. O’Neill should not have allowed the district attorney to prosecute Cosby when the offense did not occur within the 12-year statute of limitations.
Cosby’s deposition testimony regarding Quaaludes, introduced by the state, also should not have been permitted. The testimony, defense counsel argues, was not relevant to the Constand allegations. The highly prejudicial testimony included statements regarding the illegal act of giving a narcotic to another person.
Another defense issue addresses Cosby’s objections to the court’s charge. O’Neill abused, erred and violated Cosby’s rights by denying those objections and including or refusing to provide certain instruction. Moreover, O’Neill abused his discretion by refusing to provide the jury a special interrogatory on whether the offense occurred within the statute of limitations.
The state relied on unsubstantiated, uncorroborated evidence in finding that Cosby was a sexually violent predator according to the defense. In relying on hearsay evidence that there were approximately 50 more women making allegations against Cosby O’Neill again infringed on Cosby’s rights.
Defense attorneys state in their list of problematic rulings by Judge Steven T. O’Neill that he “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 spokes- man for Cosby, who is serving a three to 10-year sentence at a prison near Philadelphia.
Stacy M. Brown, NNPA Newswire Correspondent contributed to this report.
