Monday, August 14, 2017

A FIRST IN MONTCO: Unique Defense Strategy Waged at Drug Smuggling Trial

Last week, a Norristown businessman offered a defense strategy never before waged in Montgomery County to charges he smuggled heroin for a drug trafficking organization, claiming he did so under duress by a Mexican drug cartel that threatened his relatives.

“They told me I had to work with them. They were going to kill my brothers in Mexico,” David Pacheco testified in county court, referring to men who visited his Norristown towing business in early 2015 and who he believed were representatives of the violent Mexican drug cartel known as New Generation Cartel Jalisco.
David Pacheco/Photo by Carl Hessler Jr.

Courthouse insiders and seasoned defense lawyers told me they believed it was the first time such a defense was waged in a county courtroom. They were watching the trial closely.

Well-known defense lawyer John I. McMahon Jr. argued to jurors during his opening statement that prosecutors had to prove that Pacheco, 45, was not acting under duress by the Mexican drug cartel and its associates at the time he smuggled the drugs.

McMahon claimed duress is an “absolute defense” to criminal charges and arises under circumstances when, although an individual committed the acts that would constitute a crime, that he only did so based on the threat of violence to him or others. McMahon argued Pacheco was under extreme duress and was not guilty of the drug-related offenses with which he was charged.

While District Attorney Kevin R. Steele and co-prosecutor Robert Kolansky argued Pacheco willingly smuggled heroin inside retrofitted car batteries from Atlanta to New York City, via Montgomery County, out of greed to make money with the “poison he was peddling,” McMahon argued Pacheco was a “mule” threatened and intimidated by the cartel to cooperate.
Montgomery County DA Kevin R. Steele/Photo by Carl Hessler Jr.

McMahon, a prosecutor turned defense lawyer who has a reputation for being a zealous advocate for his clients, relied on a scholarly expert on Mexican cartels to argue the cartels use extortion, the threat of kidnapping family and relatives and even murder to get otherwise law-abiding Mexican immigrants to assist them.

John I. McMahon Jr./Photo by Carl Hessler Jr.
Pacheco came to the U.S. 18 years ago, has no criminal record and operated a successful towing business, D&J Towing in Norristown, testimony revealed.

McMahon argued Pacheco initially rebuffed the requests of cartel associates who visited him but caved in when cartel members revealed they had photos of his relatives and knew where they lived.

In the end, the jury apparently did not buy the duress claim as an excuse for the conduct, convicting Pacheco of nine counts of possession with intent to deliver heroin.

But the trial offered spectators an education about Mexican drug cartels and a view of a defense strategy never before seen at a county trial.


When it came time for the defense expert on Mexican cartels to testify via the Internet from California, his image displayed on a large television monitor for jurors, there was a glitch when officials couldn’t get the sound to work properly.

“Ladies and gentlemen, this is the part you don’t see on TV,” Judge Garrett D. Page addressed jurors, eliciting laughter from the panel, referring to the legal dramas so popular on television. “Technology isn’t perfect. Thank you for your patience.”

Judge Garrett D. Page/ Photo by Carl Hessler Jr.

After several minutes, officials worked out the technological problems and the trial resumed.

Friday, August 11, 2017

Montco Prosecutor Kristen Feden Moving On

Montgomery County Assistant District Attorney Kristen Feden, who is part of the team that is prosecuting entertainer Bill Cosby on sex assault charges, is leaving the district attorney’s office effective August 15 for a new job.
Montco Assistant District Attorney Kristen Feden/Photo by Carl Hessler Jr.

Feden, who since February has been the captain of the district attorney’s domestic violence unit, is joining the Philadelphia-based law firm of Stradley Ronon as an associate and will primarily handle civil litigation.

However, District Attorney Kevin R. Steele said despite Feden’s departure she will be designated as a special prosecutor when Cosby faces his retrial in county court. That retrial is currently slated to begin Nov. 6.

Montco D.A. Kevin R. Steele/Photo by Carl Hessler Jr.
“Kristen has been an outstanding prosecutor. She is always prepared, terrific in her approach and has excellent courtroom presence. We are sad to lose one of the best young attorneys we have. We will miss her personally and professionally…,” Steele said in a news release, adding he is pleased Stradley Ronon will permit Feden to continue with the Cosby prosecution.

William R. Sasso, chairman of Stradley Ronon’s management committee and board of directors, also praised Feden saying she is “an exceptional courtroom attorney and will be an asset to our strong litigation team.”

Michael D. O’Mara, chair of Stradley Ronon’s litigation department, characterized Feden as “a superstar in any setting,” whether as a criminal prosecutor or in private practice.

Around the courthouse, Feden is known for being tough in court and yet many consider her to be one of the most likable prosecutors to grace the halls of the courthouse. She greets everyone with a smile and always seems to have a kind word. Her laugh is infectious.

In May 2016, Feden, who has been a prosecutor since 2012, was honored in the Philadelphia Business Journal’s special edition entitled, “40 Under 40 Living The Dream,” which profiled Philadelphia area movers and shakers under 40 who are dedicated to their careers and communities.

At the time, Feden ecstatically told me it was one of the highest honors she received. The popular business publication featured Feden, of Abington, on its cover and a profile of Feden was included in the inside pages.
Kristen Feden Displays Honor in 2016/Photo by Carl Hessler Jr.

“I was extremely excited. It was such a great honor because being recognized as a public servant by a business journal shows that even the business world recognizes, respects and honors public servants, including prosecutors, whose sole job is to keep the community safe,” Feden, who was a law clerk for Judge Garrett D. Page before being hired as a prosecutor, told me last year.

Feden, a 2009 graduate of Temple University Beasley School of Law, has prosecuted many sex crime cases.

Last year she was assigned to assist Steele in the prosecution of Cosby, who is accused of sexually assaulting a woman at his Cheltenham home in 2004. It’s the highest profile case to ever hit the local courthouse.

Feden drew nationwide attention when she presented the opening statement to jurors during the Cosby trial and when she handled the direct examination of Cosby's accuser, the star prosecution witness.

In June, a judge declared a mistrial when a jury could not reach a verdict at Cosby’s trial. The case is now scheduled for a retrial before Judge Steven T. O’Neill.

You can bet that all eyes will continue to be on Feden as the Cosby case winds its way through the court system again.

Feden, who is married to Nicholas Feden and is the mother of two young boys, Nicholas Jr. and Ethan, also once worked as a financial analyst for Bloomberg, L.P. in New York.

So if you see Feden in the courthouse hallways congratulate her on her new job as she advances her career.

Mr. Everybody’s Business also says, congratulations, Kristen!

Thursday, June 15, 2017

Cosby Trial Puts Court Stenographer in Spotlight

Montgomery County Court stenographer Ginny Womelsdorf took center stage at Bill Cosby’s high-profile sexual assault trial when all eyes, and ears, in the courtroom were drawn to her as she had to recite the testimony of three trial witnesses from whom jurors wanted to hear again.

Womelsdorf had the tedious task of transcribing the previous testimony. Then the judge and lawyers informed her as to the passages that were to be read to the jurors. One of the testimonies included that of Cosby’s alleged accuser, the main witness in the case. Talk about a stressful situation with so many eyes watching you on a national scale.

But Womelsdorf, who has been assigned to the courtroom of Judge Steven T. O’Neill, who is presiding over the Cosby trial, stepped to the plate and completed the task with clarity, professionalism and composure. She read more than 30 minutes during one recitation and nearly an hour during another, occasionally taking a sip of water to clear a scratchy throat. Despite one brief coughing spell, Womelsdorf plowed forward, never skipping a beat.

O’Neill told jurors Womelsdorf “is the best in this country as far as I’m concerned.”

When @MontcoCourtNews tweeted about Womelsdorf’s performance under pressure, social media users responded kindly.

“Mad props to her!” one said. Another said, “Get that lady a parafin wax hand dip and some Ludens stat!” 

I have always said court reporters, those women and men who sit in courtrooms on a daily basis and record the hearings in civil and criminal cases, are some of the hardest working people at the courthouse.

They sit for hours listening to endless testimony, making sure to capture every word correctly - which can be difficult when a witness is soft-spoken or speaking way too quickly - and then spend hours transcribing that testimony for judges and lawyers. The reporters must keep track of all prosecution and defense exhibits and make sure they are properly marked as evidence during trials.

And they are often summoned to court by judges at a moment’s notice, having to drop whatever else they’re working on.

It’s not uncommon to see the registered professional reporters working late into the evening in their offices next to the press room at the courthouse. There is a lot of reliance on court reporters and I have no doubt the judicial system would come to a screeching halt if they weren’t around.

Ginny deserves some recognition for a job well done during an extremely intense situation at the highest-profile case that ever played out in Montgomery County. Bravo, Ginny!

Sunday, June 11, 2017

Cosby Defense Tried One Last Time to Limit Quaaludes Testimony

Bill Cosby’s defense team made one last effort to limit testimony about Quaaludes at Cosby’s sexual assault trial.

Defense lawyers Brian J. McMonagle and Angela C. Agrusa fought to prevent a forensic toxicologist from testifying for prosecutors about the effects of Quaaludes on an individual who consumes them, according to court documents released on Friday.
Brian McMonagle & Angela Agrusa/Photo by Carl Hessler Jr.

But that attempt failed and Dr. Timothy Rohrig testified on Friday as one of the last prosecution witnesses during the fifth day of Cosby’s sexual assault trial before Judge Steven T. O’Neill. Cosby, 79, is accused of having inappropriate sexual contact with Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home after plying her with blue pills and wine sometime between mid-January and mid-February 2004.

McMonagle and Agrusa argued in court papers that Rohrig was initially identified by prosecutors to testify regarding “the general effects of Diphenhydramine, the active ingredient in Benadryl.” McMonagle claimed prosecutors later put forth Rohrig’s opinions regarding “the general pharmacology of methaqualone, more commonly known as Quaaludes.”

Defense Lawyer Brian J. McMonagle/Photo by Carl Hessler Jr.
“Rohrig should be precluded from testifying regarding Quaaludes because there is not a scintilla of evidence in this case that Quaaludes were involved in the alleged encounter with Andrea Constand,” McMonagle and Agrusa wrote in court papers.

McMonagle and Agrusa maintained Rohrig’s testimony regarding Quaaludes “could only serve to confuse and prejudice the jury,” and therefore should be excluded.

“Rohrig’s carefully parsed phrasing, that Ms. Constand’s symptoms “do not exclude the possibility” that she ingested Quaaludes or some other unidentified and speculative central nervous system depressant drug highlights that his opinion is based on pure conjecture, untethered to any evidence in this case,” the defense team added.

While prosecutors have not specifically identified what they believe Cosby gave to Constand, with the evidence presented to the jury, they suggested it could have been Quaaludes or Benadryl. Testimony revealed Benadryl did come in a blue pill form around the time of the alleged incident.
Bill Cosby Leaves Montgomery County Courthouse/Photo by Carl Hessler Jr.

During the trial, District Attorney Kevin R. Steele and co-prosecutors Kristen Feden and M. Stewart Ryan presented the jury Cosby’s police statements and his 2005 testimony in a deposition connected with a civil suit brought by Constand in which he said he gave Constand “the equivalent of one and a half” Benadryl when Constand was “talking about stress.”

Prosecutors have also presented the jury with Cosby’s deposition testimony that he obtained Quaaludes, a 1970s party drug, in the past to give to young women with whom he wanted to have sex.

When asked if he ever gave the Quaaludes to the young women without their knowledge, Cosby responded, “No,” according to his deposition testimony. Cosby also claimed that he did not have any Quaaludes, which were banned in the U.S. in the 1980s, in his possession or in any of his residences around the time he met Constand in 2002.
Montgomery County DA Kevin Steele/Photo by Carl Hessler Jr.

Rohrig testified the symptoms described by Constand could be consistent with Benadryl.

“It can cause significant sedation. It is a central nervous system depressant. It can and has been used as a drug to facilitate sexual assaults,” testified Rohrig, adding Quaaludes, are also sedatives and can cause similar side-effects.

Stay tuned. I’ll have daily reports for Digital First Media publications when the trial resumes on Monday. You can also find breaking Cosby news by following @MontcoCourtNews on Twitter.

Saturday, June 10, 2017

Cosby Trial Cellphone Woes: "Does That Make Me Crazy?"

Reporting From Bill Cosby Trial/Photo by Carl Hessler Jr.

Cellphones have been the source of woe for Montgomery County Judge Steven T. O’Neill and court administrators at Bill Cosby’s sex assault trial as they try to enforce the restrictions set by a decorum order imposed by President Judge Thomas M. DelRicci.

“Really?” O’Neill muttered incredulously when a courtroom spectator’s cellphone ringtone blared and the song “Crazy” by Gnarls Barkley swelled in the courtroom. “Turn off the phones! They will be confiscated.”
Judge Steven T. O'Neill/Photo by Carl Hessler Jr.

That cellphone ringtone was perfect for that moment. “Does that make me crazy?” the lyrics go. I imagine O’Neill was saying to himself, “YES!”

Under the previously issued decorum order, all cellphones must be turned off and out of sight in the courtroom.

But just as Brian J. McMonagle began delivering his opening statement to jurors on Monday, someone’s cellphone ringtone blared with a different song, something I didn’t recognize.

Brian J. McMonagle/Photo by Carl Hessler Jr.

“I brought music to the courtroom,” McMonagle said lightheartedly as he shrugged the moment off, not letting the interruption affect his composure or his well-executed opening delivery.

And despite numerous daily admonitions from the judge throughout the trial, a Cosby supporter sitting in the front row of the courtroom used his cellphone to snap a photograph. Angry court administrators immediately chastised the man and required him on the spot to delete the photograph from his cellphone.

There is a Pennsylvania law that prohibits photographing and videotaping court proceedings. Some of us veteran court reporters roll our eyes each time O’Neill reiterates the NO CELLPHONE POLICY but then low-and-behold another cellphone goes off.  So I understand, to a certain extent, the judge’s endless nagging about the issue to spectators.

The cellphone disruptions have come mainly from the public and not media members.

Gloria Allred/Photo by Carl Hessler Jr.
Well-known celebrity and civil rights lawyer Gloria Allred created several stirs, her phone ringing twice during the first week of the trial in main Courtroom A. On Wednesday Allred’s cellphone rang during the testimony of alleged Cosby victim, Andrea Constand. Court administrators asked her to leave.

During an interview outside the courthouse, a reporter asked Allred, “What happened in court with your cellphone?”

“Oh, that’s what’s really important to the outcome of this case,” said Allred, shrugging off the reporter’s question. “It’s not on my radar. What’s on my radar is justice in this case.”

Later Allred told Associated Press reporters she believed her phone had been turned off and was baffled by the incident that garnered some unwanted attention. Allred’s phone appeared to be out of sight and in her purse when it rang.

Allred, 75, was permitted back in the courtroom later in the day. But on Friday, Allred’s cellphone blared again. Apparently, recognizing her mistake again she got up to leave as a court administrator was storming down the center aisle of the courtroom in her direction, likely prepared to ask her to leave again.

Gloria Allred/Photo by Carl Hessler Jr.

Allred has been a constant presence at the Cosby trial and she represents many of the 13 other alleged Cosby accusers that prosecutors sought to have included at the trial.

Allred has often stepped to a podium outside the courthouse to address the press during breaks at the trial.

Also on Wednesday, local NBC10 Digital reporter Brian McCrone was stripped of his credentials to cover the Cosby trial after court officials said he sent a text message while the trial was in session. McCrone was taken before President Judge Thomas M. DelRicci, who accepted his apology but nonetheless barred him from the courtroom.

Under the decorum order issued for the Cosby trial, all electronic transmissions from the courtroom are prohibited.

According to testimony, McCrone stipulated that he violated the decorum order that was issued on May 18. But DelRicci appeared annoyed when McCrone’s lawyer hinted at wanting to make a First Amendment argument in connection with the matter.

President Judge Thomas DelRicci/Submitted Photo

DelRicci, who apparently had a photograph of the text message, said it wasn’t a First Amendment issue but “a protocol issue.” The judge said media members received specific instructions as to what was and what wasn’t permitted at the trial. The judge also questioned why, if someone had a problem with the May 18 decorum order, it wasn’t raised earlier.

According to testimony, the text message in question was “innocuous” and not associated with what was occurring at the trial at the time.

Stay tuned. I’ll have daily reports for Digital First Media publications when the trial resumes on Monday. You can also find breaking Cosby news by following @MontcoCourtNews on Twitter.

A Parrot, "Ozzie," Gets Attention, Brings Much-Needed Laughter to Cosby Trial

“Ozzie” the parrot flew right in to Bill Cosby trial testimony this week, providing one of the more light-hearted moments at a trial characterized by very sordid details.

Montco Courthouse Home to Bill Cosby Trial/Photo by Carl Hessler Jr.
A recording of the Jan. 17, 2005, phone conversation Cosby had with the mother of alleged sex assault victim Andrea Constand was at the center of the trial on Wednesday when it was played for the jury during the testimony of Andrea’s Canadian mother, Gianna.

During the phone conversation, Cosby, who initiated the call from Los Angeles, California, apparently suspected that Mrs. Constand was recording the call at her home in Canada and questioned her about a persistent beeping he heard on the phone, according to testimony. Gianna Constand told an obviously suspicious Cosby the sound was probably her parrot in the background or her call waiting, testifying she might have been getting a call from another daughter at the time.

At that point, Gianna Constand turned to the jury and District Attorney Kevin R. Steele and said, “Yes, I do have a parrot. His name is ‘Ozzie,’” she said lovingly, eliciting chuckles from everyone in the courtroom.

At that moment “Ozzie” had stolen the show at Cosby’s trial.

Testimony revealed Gianna Constand really was recording Cosby, whom she met in 2003 through her daughter, with a recorder she purchased earlier that day at a Radio Shack in Pickering. Appearing anguished at times, Andrea’s mother testified she recorded the conversation to capture Cosby’s alleged admission to giving her daughter pills and to having sexual contact with Andrea. During the recorded conversation she asked Cosby to reveal the name of the medication he’d given to Andrea.

“I’d never done that before,” Gianna Constand said about recording someone.

Incidentally, Canadian law permits the interception of a private communication where only one party consents, unlike in the U.S., where two-party consent is required.

During the conversation, Cosby inquired about Andrea’s career goals and offered to pay for Andrea’s graduate schooling, according to testimony, “as long as she maintains a 3.0 average, she’ll be fine.”
Bill Cosby Leaves Montgomery County Courthouse/Photo by Carl Hessler Jr.

Later, during Cosby’s March 2006 deposition in a civil lawsuit brought against him by Andrea Constand, Cosby allegedly admitted that he feared Constand’s mother recorded him, according to court papers and testimony.

That recording could be the first and only time that jurors hear Cosby’s voice since he is not expected to testify when the trial resumes on Monday.

Judge Steven T. O’Neill, the presiding Cosby trial judge, ruled last year that the recorded call was admissible evidence.

Stay tuned. I’ll have daily reports for Digital First Media publications. You can also find breaking Cosby news by following @MontcoCourtNews on Twitter.

Monday, June 5, 2017

Cosby Drama's Cast of Players: The Prosecutors

When prosecutors enter a Montgomery County courtroom on Monday their time in the international spotlight reaches a crescendo as the celebrity trial of Bill Cosby gets under way.

The players in the widely-followed legal drama include:

Kevin R. Steele

Steele, 50, of Lower Merion, was elected district attorney in November 2015 and was sworn-in on Jan. 4, 2016, to oversee an office that investigates or prosecutes about 9,000 cases annually. It was Steele, as first assistant district attorney, who announced the sex assault charges against Cosby on Dec. 30, 2015, before the 12-year statute of limitations to file charges expired.

Steele, a graduate of The Dickinson School of Law of the Pennsylvania State University who also received a Master of Laws Degree in Trial Advocacy from Temple University Law School, joined the district attorney’s office in 1995 after a two-year stint with the Dauphin County District Attorney’s Office. In Montgomery County, Steele served as an assistant prosecutor, captain of the narcotics unit and chief of the trials division before being appointed first assistant in 2008.
Montgomery County DA Kevin R. Steele/Photo by Carl Hessler Jr.

Steele, who has taught as an adjunct professor at Cabrini College since 2004 and is a married father of three children, prosecuted several high-profile cases, including that of Raghunandan Yandamuri, 30, who was convicted of first-degree murder and sentenced to death by a jury in 2014 in connection with the Oct. 22, 2012, deaths of 61-year-old Satyavathi Venna and her 10-month-old granddaughter, Saanvi.

Steele also prosecuted former Pennsylvania Attorney General Kathleen G. Kane, the first Democrat and the first woman ever elected attorney general, who was convicted during an August 2016 trial of charges of perjury, obstructing administration of law, official oppression, false swearing and conspiracy.

M. Stewart Ryan

Ryan, 30, joined the district attorney’s office in 2012. Since then, he has served in all divisions, including pre-trials, juvenile, appeals and trials. As part of the trials division, he was a member of the firearms unit and the sex crimes unit before being promoted to the captain of the sex crimes unit in February 2015.
M. Stewart Ryan/Photo by Carl Hessler Jr.

Ryan, who earned his law degree from Widener University Delaware Law School in 2012, was part of the team that prosecuted Kane and Yandamuri. Ryan also prosecuted well-known Norristown lawyer Vincent Cirillo Jr., who was convicted of raping a female client and is serving a 10- to-20-year prison term.

Kristen M. Feden

Feden, 34, joined the district attorney’s office in June 2012, after having served as the law clerk for county Judge Garrett D. Page. Since joining the office, Feden, who earned her law degree from Temple University Beasley School of Law in 2009, has served as a prosecutor on various units including most recently as a member of the sex crimes unit before her promotion in February 2017 to captain of the domestic violence unit.

Prior to law school, Feden worked as a financial analyst for Bloomberg, L.P. in New York, according to her biography.
Kristen M. Feden/Photo by Carl Hessler Jr.

Feden was part of the team that prosecuted Yandamuri. Feden also prosecuted Charles Meredith IV, a former tennis coach at a Delaware County school who was convicted of having improper contact with a teenage girl he coached by sending her inappropriate text messages.