Sunday, May 21, 2017

As Cosby Jury Selection Nears Montco Judge Issues Warning Against Jury Tampering

With Jury selection about to begin for the June 5 sexual assault trial of entertainer Bill Cosby, Montgomery County Judge Steven T. O’Neill gave one last stern-sounding warning to members of the media and the general public, focusing on the security of the jury panel.
Montco Judge Steven T. O'Neill/Submitted Photo

“Reporters and members of the general public are reminded that any attempt by anyone, without leave of Court, to communicate with a member of the jury panel respecting the case, until the conclusion of the case, may be punished as a criminal contempt of court,” O’Neill wrote in a court order issued on Friday.

Jury selection begins Monday at the Allegheny County Courthouse in Pittsburgh.

The judge added that during individual questioning of jurors, “the room may be cleared of reporters and members of the general public if the juror expresses a desire to answer a sensitive question in private.”

Indeed, the Cosby jury, a panel of 12 and six alternate jurors, likely will be subject to some of the tightest security that a jury has ever faced in Montgomery County. It is the most high-profile criminal trial to ever play out at the county courthouse in Norristown.

“Overall, our real focus is security, securing those jurors,” county Sheriff Sean P. Kilkenny told me during a recent interview. “We want to make it as safe and comfortable for the jurors. They are coming from Allegheny County, sacrificing everything being away from their families, and we want to make it as safe and comfortable for them as we can.”
Montco Sheriff Sean Kilkenny/Submitted Photo

 Judge O’Neill, prosecutors and Cosby’s team of defense lawyers will be at the Allegheny County Courthouse in Pittsburgh on Monday to begin selecting jurors. 

The selection process was moved after defense lawyers argued that closer to home prospective jurors had been subjected to pervasive media coverage that made it impossible to select a fair jury in Montgomery County.

Once the jurors are selected, they will be transported to Montgomery County and sequestered at an area hotel for the duration of the trial, which is expected to last at least two weeks.

Cosby, 79, faces three counts of aggravated indecent assault in connection with allegations he had 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.

Once the trial begins, I’ll have daily reports for Digital First Media publications. You can also find breaking Cosby news by following @MontcoCourtNews on Twitter.

Tuesday, May 16, 2017

Internet All Atwitter About Cosby and Race. But It Was Old News

The Internet was all atwitter this morning with blaring headlines that entertainer Bill Cosby suggested in an interview with a radio show host that racism may be playing a part in his sexual assault trial that is about to get under way.

My first reaction. I had to laugh at the barrage of news reports about the subject. Old news, I thought, as defense suggestions of racism were first reported last year.

In fact, The Mercury, The Reporter and the Times Herald were among the first publications to report last October that Cosby’s lawyers claimed they cannot ignore “the unfortunate role that racial bias still plays in our criminal justice system.” The claims were made in court documents I obtained.
Bill Cosby/Photo Courtesy Montco DA

“In a better world, racial bias would be a specter of the past, or, better yet, nonexistent,” lawyers Brian J. McMonagle and Angela C. Agrusa wrote in court papers in which they claimed Cosby is a victim of racial bias, an unfair media blitz and a prosecutors’ decade-old delay in bringing sexual assault charges against him.

The racial bias, Cosby’s lawyers suggested, was evident in the request by Montgomery County prosecutors to allow 13 additional women to testify at Cosby’s trial to bolster their contention that Cosby sexually assaulted Andrea Constand, a former Temple University athletic department employee, at his Cheltenham home in 2004. The 13 women alleged to also have been the victims of Cosby’s inappropriate conduct between 1960 and 1990 and District Attorney Kevin R. Steele argued their testimony is relevant at trial to show Cosby’s behaviors “took on a form of a common plan, scheme or design.”

“Only one of those women self-identifies as African-American,” McMonagle and Agrusa claimed. “The commonwealth’s choice preys upon subconscious (or perhaps conscious) beliefs that a white woman is less likely to consent to sex with a black man, particularly in the 1960s and 1970s, the time period the commonwealth chose to focus on.

Defense lawyer Brian J. McMonagle/Photo by Carl Hessler Jr,.
“This turns the presumption of innocence that Mr. Cosby is entitled to into a presumption of guilt, and runs counter to the basic principles upon which the United States was founded,” the lawyers added.

McMonagle argued some of the 13 women have been paraded in front of the media by high-profile, civil rights lawyers like Gloria Allred, who represents some of the women.

“And the public jumps into a mob, willing to believe unsubstantiated, decades-old allegations against an African-American citizen who has spent the last half a century trying to foster an appreciation for the commonalities of every American, regardless of race, gender or religion,” McMonagle wrote. “There is no hope that Mr. Cosby can receive a trial free from outside influence in Montgomery County, as due process requires.”

Incidentally, a judge ruled against prosecutors, deciding that only one of the 13 other alleged women can testify at the upcoming trial.
Montco DA Kevin R. Steele/Submitted Photo

And it wasn’t the first time McMonagle invoked race in the case.  

After Cosby’s pretrial hearing Sept. 6, 2016, McMonagle said from the courthouse steps, “Mr. Cosby has spent his entire life trying to fight against injustice, trying to help other people overcome racism and prejudice,” and claimed the media has presumed Cosby guilty, not innocent.

“The media has championed the causes of his accusers with little thought to investigation, with little thought to exposing the motivations behind any accusations…,” McMonagle said at the time.

That same day, a Cosby spokesman fired off a statement expounding on the defense team’s claims.

“Mr. Cosby is no stranger to discrimination and racial hatred and throughout his career Mr. Cosby has always used his voice and his celebrity to highlight the commonalities and has portrayed the differences that are not negative - no matter the race, gender and religion of a person.

“Yet, over the last 14 months, Mr. Cosby and those who have supported him, have been ignored while lawyers like Gloria Allred hold press conferences to accuse him of crimes for un-witnessed events that allegedly occurred almost a half century earlier,” the statement read.

The spokesman claimed Cosby’s civil rights have been trampled upon and argued the campaign against him “builds on racial bias and prejudice that can pollute the court of public opinion.”

Bill Cosby Leaves Ccourt/Photo by Carl Hessler Jr.
Cosby, 79, faces a June 5, 2017, trial on charges of aggravated indecent assault in connection with his alleged inappropriate contact with Constand.

Stay tuned. I’ll be reporting from the Cosby trial beginning June 5.

Saturday, April 1, 2017

Spanish fly Focus of Debate in Montco Court

Never thought I’d see the day when there would be a legal debate in Montgomery County Court having anything to do with Spanish fly.

Sure, it’s previously been mentioned in pop culture, films, TV shows and music, but it’s been years since I’ve heard it mentioned in any kind of public forum. But all of a sudden, due to a few court filings in the Bill Cosby case, Spanish fly is making national news.

I learned a few things about Spanish fly this week from Cosby’s lawyers.

“According to Oxford University, Spanish fly is “[a] toxic preparation of the dried bodies of Spanish fly beetles, formerly used in medicine as a counterirritant and sometimes taken as an aphrodisiac.” An aphrodisiac is “[a] food, drink, or other thing that stimulates sexual desire,” defense lawyers Brian J. McMonagle and Angela C. Agrusa wrote in court papers.

McMonagle and Agrusa said Cosby, in his comedic material, developed jokes referencing the substance as an aphrodisiac, most notably in his 1969 album, “It’s True! It’s True!”
Brian J. McMonagle/ Photo by Carl Hessler Jr.

“The jokes make fun of the high libidos of thirteen-year-old boys and the way they gossip amongst themselves on how to get girls,” defense lawyers wrote, adding in 1991 Cosby authored a book, “Childhood,” which contained “a fanciful tale” of 13 year olds “on an urban quest to obtain the mythical substance to improve their chances with girls.”

In promoting that book, McMonagle and Agrusa said, Cosby appeared on Larry King’s CNN program and rehashed a version of the Spanish fly material that he had developed decades earlier and included in his book.

Montgomery County District Attorney Kevin R. Steele sees it a different way.

Montco DA Kevin Steele/Submitted Photo
Cosby’s words came back to haunt him this week when Steele filed papers seeking to use excerpts from Cosby’s book and the “The Larry King Show” as evidence at Cosby’s upcoming trial in connection with his alleged sexual assault of Andrea Constand, a former Temple University athletic department employee, after plying her with blue pills and wine at his Cheltenham home sometime between mid-January and mid-February 2004.

Steele argued the excerpts “are relevant to proving that (Cosby) had knowledge of a date-rape drug, and a motive and intent to use it on the victim” and also suggest Cosby “had a willingness and motive to push ‘chemicals’ to obtain sex from the otherwise unwilling victim.”

Steele, quoting from Cosby’s book, contends the actor recounted a memory from his youth in which he and his friends seek out “Spanish Fly, an aphrodisiac so potent that it could have made Lena Horne surrender to Fat Albert.”

But McMonagle and Agrusa quoted another passage from 'Childhood' - “We were feeling the way that the soldiers of Ponce de Leon must have felt when they began to search for the Fountain of Youth” - to suggest that the antics to which Cosby referred “were centered on a Quixotic adventure through the minds of teenaged boys.”

“The story is about fantasy, not real life, legends created by the active imaginations of teenaged boys,” defense lawyers claimed. “Even one of the passages that (prosecutors) would like to use to condemn Mr. Cosby demonstrates the absurdity of this tale: trying to find ‘an aphrodisiac so potent that it could have made Lena Horne surrender to Fat Albert’ is a comical way of signaling that the boys’ exploits were completely in the realm of fantasy – how else would a glamorous move star ‘surrender to’ a pre-pubescent boy in Philadelphia?”
Bill Cosby Arrest Photo

McMonagle and Agrusa said “Mr. Cosby’s Spanish Fly Shtick” is not a joke about assault, rape or drugging someone.

“The fact that the commonwealth is distorting humor into some menacing plot by divorcing it from its context is exactly the reason why the topic of Spanish fly should be excluded from trial,” McMonagle and Agrusa responded. “This is a form of artistic expression and social commentary. The vast majority of the material he developed over the last fifty years never happened in real life. It was for humor.”

So, is it a “mythical substance," a form of artistic expression and social commentary, the object of “the active imaginations of teenaged boys” and humor that prosecutors are “distorting,” as McMonagle and Agrusa contend?

Or is it a reference to a “date-rape drug” that suggests Cosby “had access to, knowledge of, and a motive and intent to knowingly use substances that would render a female unconscious for the purpose of engaging in sex acts,” as Steele contends?

Montco Judge Steven T. O'Neill/ Submitted photo

We could find out Monday what county Judge Steven T. O’Neill thinks when he holds a hearing to determine if the Spanish fly references made by Cosby will be evidence at his upcoming sexual assault trial.

Stay tuned.

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