Wednesday, March 29, 2017

Jury Selection: Bill Cosby and Peremptory Challenges

In court papers filed this week, lawyers for entertainer Bill Cosby asked a judge to lift the limits of a criminal rule of procedure to grant the defense team and prosecutors 20 peremptory challenges, each, when jury selection begins for Cosby’s sexual assault trial.
Bill Cosby Arrest Photo/Courtesy Montco DA's Office

Currently, Pennsylvania Rule of Criminal Procedure 634 dictates that, in trials involving a non-capital felony case, and when there is only one defendant, prosecutors and the defendant each are entitled to only seven peremptory challenges.

While impaneling a jury, the prosecution and defense can challenge the selection of a particular juror “for cause” – that is, the lawyer must show that a prospective juror isn’t qualified because a specific circumstance exists. For example, I’ve seen many people excused from jury service because they either had medical problems or knew witnesses and victims or a lot about a particular case.

But the prosecution and defense teams also can challenge a potential juror without having to give any specific reasons. For example, a lawyer may not like a juror’s answer to a particular question, a juror’s occupation, a juror’s manner or the tattoos they’re sporting. However, those challenges, known as “peremptory challenges,” are limited in number.

When lawyers run out of peremptory challenges they can be forced to accept jurors that they really don’t favor and so that’s why the selection process can be very tricky.

In Pennsylvania, in trials involving capital murder, and when there is only one defendant, each side is entitled to 20 peremptory challenges. In trials involving misdemeanors only, prosecutors and a defendant are entitled to five peremptory strikes.

Where the charge is felony aggravated indecent assault, of which Cosby is charged, each side is entitled to only seven peremptory challenges.

Defense lawyer Brian J. McMonagle, citing “the extraordinarily widespread media attention” garnered by the Cosby case, requested more than the usual seven peremptory challenges in his motion for jury selection protocol. Cosby wants 20 for each side.
Brian J. McMonagle/Photo by Carl Hessler Jr.

But District Attorney Kevin R. Steele objected to the request.

“Even if the commonwealth agreed to this scheme, which it will not, and even if the court wanted to permit additional peremptory strikes, the limits set by Rule 634 are firm and final,” Steele wrote in court papers. “It is well-settled and easily found precedent that the right to peremptory challenges is established by law, and the trial court does not have the power to increase the number of challenges. This is true even in high-profile cases where the defendant may believe they are entitled to special treatment.”

Montco DA Kevin R. Steele/Submitted Photo

“Therefore, no matter how many additional peremptory strikes defendant may think he needs or is entitled to, he is not permitted to have more than any other similarly situated criminal defendant,” Steele continued. “Defendant is not entitled to, nor does he deserve, anything more or anything less than any other citizen facing criminal charges.”

After reading Rule 634, I would have to agree that it appears trial judges don’t have the discretion to increase the number of peremptory challenges unless it is a trial that involves joint defendants.

Stay tuned. Judge Steven T. O’Neill holds a hearing on Cosby’s request to lift the limits on peremptory challenges on Monday, April 3.

While peremptory challenges have been part of the justice system for hundreds of years and while some argue peremptory challenges are necessary to remove biased jurors, I never thought peremptory challenges were realistic, believing they allowed lawyers to hide under the umbrella of not having to state a cause and still preclude jurors because they didn’t like their gender or race.

In a 1986 U.S. Supreme Court case, Batson v. Kentucky, the high court ruled lawyers cannot use peremptory challenges to dismiss jurors based simply on their race.

Should peremptory challenges be eliminated altogether from the U.S. jury selection process? I would love to know what you think. Feel free to leave your comments below.

Sunday, March 26, 2017

Deputies Rocked Those Socks!

Some of Montgomery County’s finest public servants showed their compassion for others and supported a good cause by sporting some outrageous, yet fashionable, mismatched socks under their uniforms for one day last week.
Deputy Kayla M. Lochner-Franz Rocks her Socks/ Photo by Carl Hessler Jr.

County Sheriff’s Department staffers participated in the annual “Rock Your Socks World Down Syndrome Day” campaign on March 21, 2017, to raise awareness about Down syndrome, a genetic chromosomal disorder. The idea to participate came from Deputy Kayla M. Lochner-Franz whose uncle, Mike, had the syndrome.

Montgomery County Sheriff's deputies support "Rock Your Socks World Down Syndrome Day"/ Photo courtesy sheriff's department
“It’s an honor to do it every year. I like to keep carrying on awareness in memory of him,” said Lochner-Franz, adding her uncle, who grew up in the Manayunk area of Philadelphia, passed away at 51 years of age.

Lochner-Franz explained the campaign encourages people to find creative ways to advocate for the rights of those with Down syndrome and to celebrate the wonderful things about people with the syndrome.
Photo Courtesy Montco Sheriff's Dept.

About a dozen deputies participated in the “Rock Your Socks” campaign and they had to contribute to a Down syndrome charity in order to get permission to don their colorful socks.

World Down Syndrome Day is held on the 21st day of the third month, which signifies the uniqueness of the triplication of the 21st chromosome, which leads to Down syndrome, according to the Down Syndrome Association of Delaware.

The colorful socks certainly were fun to look out and created a buzz at the courthouse but more importantly they brought awareness to a worthy cause.

Photo Courtesy Montco Sheriff's Dept.
Once again, sheriff’s deputies went above and beyond to show their compassion for and support of others. I commend you on your dedication and kindness. Thanks for all you do.

Tuesday, February 28, 2017

The Cosby Files: Who Is 'Prior Alleged Victim Six?'

She is known in court papers as “prior alleged victim six.” But on Friday, the woman who has accused actor and comedian Bill Cosby of uncharged sexual misconduct in 1996 became a central figure in Cosby’s upcoming sexual assault trial when a judge ruled prosecutors can call her to testify against the entertainment icon.

Montco Judge Steven T. O'Neill/Submitted photo
In a one-page order, Montgomery County Judge Steven T. O’Neill ruled prosecutors can present the testimony of “prior alleged victim six” at Cosby’s trial on charges he allegedly sexually assaulted Andrea Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his home sometime between mid-January and mid-February 2004.

So just who is “prior alleged victim six?” Here is what can be gleaned from court papers filed by both the prosecution and defense teams:

The woman, now 55, first met the married Cosby around 1990, when she was 29 and Cosby was 58, through her employment working as an assistant to Cosby’s personal appearance agent, the William Morris Agency. The woman formed what she believed to be “a sincere friendship” and believed Cosby “to be very friendly and fatherly toward her” and Cosby even mentored her on future career plans, District Attorney Kevin R. Steele wrote in court papers.

During the friendship, the woman accepted dinner invitations from Cosby, on occasion even bringing her children, prosecutors said. She also accepted invitations to Cosby’s hotel, where they would discuss future career plans and Cosby would also call her at her home and speak to her family members, Steele claimed in court papers.
Bill Cosby/Arrest Photo

“Over the course of the relationship, never once did defendant make any successful sexual advances toward prior victim number six, but instead used his fame, notoriety and public status to instill trust in her,” Steele wrote.

“However, on one occasion, defendant invited her to his home to read a script for a possible role on a popular show airing on NBC. This was an uncomfortable experience for her because the script ended with her giving a passionate kiss to defendant. She expressed and showed her discomfort and defendant made no sexual advances toward her during that time,” Steele wrote.

Sometime in 1996, still trusting Cosby, according to prosecutors, the woman accepted his invitation to join him for lunch to discuss career goals. Instead, Steele alleged, Cosby would administer an intoxicant and sexually assault her.

When she arrived at Cosby’s bungalow for lunch at the Bel-Air Hotel in Los Angeles, “to her surprise” Cosby was in his robe and slippers and he informed her that they were ordering lunch to the room. No one else was present, prosecutors claimed.

Cosby, according to prosecutors, offered the woman some red wine, which she declined to drink and then he offered her a white pill so that she could relax.

Montco DA Kevin Steele/Submitted Photo
“He repeatedly insisted that she take the pill with the red wine, convincing her by saying, ‘would I give you anything to hurt you?’” Steele alleged. “After refusing more than once, prior victim number six put the pill into her mouth. Defendant took great efforts to ensure that she ingested the pill, demanding that she open her mouth and lift her tongue. At that request, prior victim number six swallowed the pill.”

After ingesting the pill, the woman became incapacitated, unable to maintain consciousness and completely unable to consent to, let alone resist, Cosby’s unwanted sexual advances, prosecutors claimed.

“During her intermittent consciousness, she recalls being placed in defendant’s bed, next to him, as he lay naked beneath his open robe,” wrote Steele, alleging the woman “did not consent” to the sexual contact that subsequently occurred and that she recalled Cosby “making grunting noises.”

Defense lawyers Brian J. McMonagle and Angela C. Agrusa revealed in court papers that the woman, who they identify as “accuser No. 6,” is a client of well-known celebrity lawyer Gloria Allred and they wrote the woman “remembers some lotion and touching but has no memory of having sexual intercourse with Mr. Cosby.”
Brian J. McMonagle/Photo by Carl Hessler Jr.

Accuser No. 6 “is the only accuser who was older than Ms. Constand at the time of her alleged incident, and the only accuser on the Commonwealth’s list who self-identifies as African-American,” McMonagle and Agrusa wrote in court papers.

Of the 13 alleged prior accusers who Steele wanted to testify at Cosby’s trial, alleged prior victim six’s allegations are closest in time (1996) to the 2004 allegations put forth by Constand.

When "prior alleged victim six" does take the stand during Cosby's trial it's likely she will have to endure an hours-long line of direct questioning and cross-examination.

Stay tuned. Cosby's trial begins June 5. 

Sunday, February 26, 2017

Word of the Day: "Sedulous;" or How I Was Schooled by a Judge

It was bound to happen one day.

With a court order from a judge, I was schooled.

On Friday, Montgomery County Judge Steven T. O’Neill, with a one-page order, ruled that only one of 13 other women who accuse 79-year-old entertainer Bill Cosby of sexual misconduct can testify against him at his upcoming trial on charges he allegedly sexually assaulted one woman at his Cheltenham mansion in 2004.

My eyes were midway through the order when it happened.

There it was - the passage, “a sedulous analysis of the proposed evidence.” Huh? I was stymied. I didn’t recall ever hearing the word “sedulous” before, let alone ever using it, and in more than 20 years of being on the court beat, I never saw it recorded in an order.

I quickly turned to my trusty 1979 edition of “The American Heritage Dictionary of the English Language New College Edition” for HELP!

Yes, I probably need to update my decades-old reference library, but there it was, nonetheless - “sedulous adj. Diligent; painstaking; industrious. See Synonyms at busy.”

It made sense, since it was obvious the judge took great care in analyzing and weighing his decision in the matter since hearing lawyers’ arguments on the issue during two days of hearings in December. I have no doubt he conducted a “sedulous analysis.”

Montgomery County Judge Steven T. O'Neill/Submitted Photo

No one who has sat through Judge O’Neill’s sentencing hearings can ever say he is not “diligent,” and he is never at a loss for words.

So, thank you, Judge O’Neill, for adding a new word to my vocabulary. Now, if I can only find a way to use it in a news story.

WORD OF THE DAY - Sedulous

Friday, February 24, 2017

Cosby Ruling: Whose Victory? It's Anyone's Guess

Legal insiders had been anxiously waiting for “The Ruling” for weeks and when it finally came on Friday in the Bill Cosby case those working and visiting at the courthouse were talking about it.

Montgomery County Judge Steven T. O’Neill ruled that only one of 13 other women who accuse the 79-year-old entertainer of sexual misconduct can testify against him at his upcoming trial on charges he allegedly sexually assaulted one woman at his Cheltenham mansion in 2004.

In a one-page order, O’Neill ruled prosecutors can present the testimony of “prior alleged victim six” at Cosby’s upcoming trial on charges he allegedly sexually assaulted Andrea Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his home sometime between mid-January and mid-February 2004.

Bill Cosby/Submitted Mugshot

Cosby claims any contact with Constand was consensual.

District Attorney Kevin R. Steele had asked the judge to allow a total of 13 other alleged Cosby accusers to testify at the trial, but O’Neill ruled 12 of the women cannot testify.
Montco DA Kevin R. Steele/Submitted Photo

Defense lawyers Brian J. McMonagle and Angela C. Agrusa had fought to keep out the testimony of all 13 women.

Leading up to Friday’s ruling local legal experts I talked to agreed it was a key pretrial battle that could determine the path that the lone criminal prosecution pending against Cosby takes.

So, was it a legal victory for prosecutors or defense lawyers? Both sides are probably claiming victory.

But it’s anyone’s guess, really.

Some believed the entire Cosby case boiled down to that one issue and the more testimony from alleged other victims that came in, the more helpful it would be to the prosecution.

Steele had argued he needed the testimony of the 13 other alleged accusers to prove Constand’s claim that she did not consent to sexual contact with Cosby and to counter inevitable defense attacks on Constand’s credibility at trial. Steele said the testimony was needed to prove Cosby engaged in “a common scheme.”

Some experts believe having testimony from even just one other alleged accuser is a big benefit for prosecutors and is “incredibly damaging” for a defendant.

“Once juries start to hear about a person’s other conduct, which is something that’s always in the back of their minds, and they hear about things that a person may have done in the past, that makes it a tough hill to climb (for the defense),” one lawyer told me recently.

Now that prosecutors have convinced the judge to allow one other alleged accuser to testify at trial, have they succeeded in bolstering their case against Cosby?

But other legal insiders told me the entire goal of the defense from Day One was “to keep as much of that, if not all of it, out as is certainly possible.” Certainly, the ruling will force prosecutors to have to rely more on Constand’s words and the credibility of her testimony in their quest for a conviction.

Brian J. McMonagle/Photo by Carl Hessler Jr.
McMonagle and Agrusa argued that testimony of 13 other alleged victims of Cosby’s uncharged sexual misconduct would be unfairly prejudicial to Cosby and should not be permitted given that many of the claims were “ancient accusations” from the 1960s, 1970s, 1980s and 1990s.

Now that McMonagle and Agrusa have convinced the judge that the testimony of 12 other alleged accusers should be kept out of the trial – essentially preventing an avalanche of new alleged evidence from coming in - have they succeeded in putting the defense case in a better posture?

Time will tell. Cosby’s trial begins June 5.

I’m sure I’ll hear many more opinions on the subject from legal eagles in the days ahead.

Stay tuned.

Thursday, February 23, 2017

Cirillo To Learn His Fate in May

Disbarred Norristown lawyer Vincent A. Cirillo Jr. will learn his fate May 8 when he’s sentenced for raping an unconscious female client while consulting with her at her West Norriton home. 
Vincent A. Cirillo Jr./Photo by Carl Hessler Jr.

Montgomery County Judge Steven T. O’Neill filed court papers on Thursday setting Cirillo’s sentencing for 10 a.m. in Courtroom 5. Cirillo, 57, of Lower Merion, who had a law office on East Penn Street in Norristown, faces a possible maximum sentence of 16 to 52 years in prison on the rape-related charges of which a jury convicted him Feb. 17 after a trial that lasted more than a week.

Cirillo, who remains in the county jail without bail pending sentencing, was convicted of charges of rape of an unconscious person, involuntary deviate sexual intercourse of an unconscious person, sexual assault and unsworn falsification to authorities in connection with his sexual assault of an impaired female client at the woman’s residence after a night of drinking on Aug. 3, 2015.

While a jury determined his fate for one crime, Cirillo’s legal troubles are far from over.

Cirillo still faces another trial for allegedly illegally posing as the rape victim’s current lawyer to try to obtain confidential court documents pertaining to her from a Montgomery County Court office. 

Cirillo faces charges of identity theft, conspiracy to commit identity theft, forgery and falsely impersonating a privately employed person in connection with the alleged Sept. 21, 2016, incident.

Cirillo is well-known in county legal circles. Cirillo is the son of the late Vincent A. Cirillo, a former Lower Merion commissioner, county prosecutor and judge who went on to be president judge of the Pennsylvania Superior Court from 1986 to 1990.

Stay tuned. I’ll report any developments in the cases.

Friday, February 17, 2017

An Unusual Valentine's Day in Montgomery County Court

It was an unusual state of affairs that couldn’t be overlooked on the third floor of the Montgomery County Courthouse on Valentine’s Day.

In one courtroom, Courtroom A, Judges Risa Vetri Ferman, Joseph P. Walsh and Garrett D. Page presided over the beautiful wedding ceremonies of about 20 couples choosing the traditional day of love to honor their unions.
Ian Drake & Christina Manning of Conshohocken are wed by Judge Garrett D. Page/Photo by Carl Hessler Jr.

Here's the story: Couples say "I do."

Newlyweds Aaron Eugene and Lauren Simmons of Schwenksville with Judge Risa Vetri Ferman/Photo by Carl Hessler Jr.

But just 50 feet away, in Courtroom D, President Judge Thomas M. DelRicci presided over a civil hearing for Rafael Robb, the former University of Pennsylvania professor who brutally ended the union with his wife, Ellen Gregory Robb, in their Upper Merion home in 2006.

I went from observing pledges of everlasting love - husbands and wives tying the knot - in one courtroom, to observing the aftermath of a marriage that went sour and turned deadly - a recently released from prison husband forced to also pay financially for brutally killing his wife - in the other courtroom.
Rafael Robb/Photo by Carl Hessler Jr.

It was a juxtaposition of events that I had not expected that day.

I found myself saying, “You can’t make this stuff up.”
I’ll choose to remember the goodness of the day, all of those joyful couples who left the courthouse hand-in-hand, smiling about the journey to come, rather than about the 66-year-old Robb, who left the courthouse forever branded a wife killer and all alone.

Congratulations to the county’s judges for coming up with the idea for the special Valentine’s Day wedding program and making it a success. Perhaps it can become a tradition in county court.