Thursday, December 22, 2016

'Tis the Season for Awareness and Prevention

As the holiday week arrives and party season is in full swing, public safety officials nationwide warn us about the dangers of drunken driving.

As a court reporter, I’m reminded of those dangers on a daily basis with DUI cases comprising nearly a quarter of all the cases that come through the courthouse annually. The Montgomery County District Attorney’s Office is currently prosecuting more than 1,400 DUI cases and the Sheriff’s Office Warrants Division has more than 900 DUI warrants on its books.

Tragically, too many DUI cases end with someone being killed or maimed.

So during this season of awareness and prevention I make a special mention here of a unique collaboration between members of the Montgomery County Sheriff’s Office, District Attorney’s Office and Mothers Against Drunk Driving Pennsylvania. Sheriff’s deputies, prosecutors and MADD officials volunteer their time to promote a designated driver program during Philadelphia Eagles home games.

Montco Sheriff Sean P. Kilkenny/Submitted Photo

“We’ve participated in several. I think it’s very valuable. They help educate fans about the dangers of drunk driving and the importance of designated drivers at home games,’ Sheriff Sean P. Kilkenny told me recently.

“The volunteers man the table. These dedicated men and women offer their personal time to volunteer to attend Eagles football games and work at the MADD booth and encourage fans to plan ahead and designate a non-drinking driver,” explained Linda Sposato, a victim services specialist for Mothers Against Drunk Driving Pennsylvania, adding MADD National and the NFL have teamed for five years at identical events at stadiums nationwide.

The volunteers, four at each game, man a MADD booth at eight home games and two preseason games at Lincoln Financial Field.
“We get the fans as they come into the stadium and explain to them the importance of them having a non-drinking designated driver for the group that they’re with,” Sposato said.
Linda Sposato, victim services specialist for MADD/Photo by Carl Hessler. Jr.

Under the program, the designated drivers sign a pledge and receive a coupon for a free soft drink. The designated drivers also are entered into special drawings to win prizes at each game.

“The people who sign up are very passionate about being a designated driver and making sure that their friends and family get home safe. And many times you find they somehow know someone who was involved in a DUI crash,” said Sposato. “We’d like to have more people sign up. We’re still giving the same message that we started over 30 years ago - make a plan before you go out.”

Assistant District Attorney Douglas Lavenberg, who once was a member of a special DUI prosecution unit in the county, has also volunteered at the games and said encouraging fans to make “smart choices” is important.
Montco Prosecutor Douglas Lavenberg/Photo by Carl Hessler Jr.

“People can go out, they can have fun and they can drink responsibly but we don’t want anyone to get behind the wheel intoxicated,” Lavenberg said. “It’s a reminder to be responsible. The games are a great forum to get that message out. We get a lot of people to sign up.”

It’s a great opportunity for volunteers to get involved.

“Many times the volunteers are victims and they want to make a difference because of what happened to them,” said Sposato. “They feel they want to do something to stop it from happening to someone else.”

According to Sposato, during the five seasons that MADD and the NFL have worked together, more than 1.1 million people signed up to be non-drinking designated drivers at NFL games nationwide.

Lavenberg said he plans to stay involved in the effort.
“I believe strongly in the message that Mothers Against Drunk Driving is sending. I believe there is a world possible where there is no more drunk driving,” Lavenberg said.

Sposato said MADD is honored to have a local partnership with county officials “dedicated to keeping our roads safe for everyone.”

“To actually have the DA’s office and the sheriff’s department volunteer their own personal time to come out and support our cause just made me feel so good that they appreciate MADD’s work and want to help us,” Sposato said. “MADD is extremely grateful to the Sheriff’s Office along with the Montgomery County District Attorney’s Office for going above and beyond in their part in saving lives.”

Sposato, the sheriff’s office and the district attorney’s office should be recognized for everything they do to make our roads safer year round. I applaud your efforts and thank you.

Here’s wishing all readers a very Merry Christmas and safe holiday season.

Saturday, December 10, 2016

Local Legal Experts Agree, Bill Cosby's Next Courtroom Clash is 'THE' Battle

[NOTE: Bill Cosby returns to a Montgomery County courtroom next week to try to keep 13 other women, who allegedly accuse him of sexual misconduct, from testifying against him at his upcoming trial for allegedly sexually assaulting one woman at his Cheltenham home. Legal insiders say it's probably the most important legal battle in the criminal case.  Recently, I asked some well-known local lawyers what they thought about the battle. Portions of the following report previously appeared in The Mercury, the Times Herald, The Reporter, the Daily Local and the Daily Times. Here's a recap to bring you up to date:]

They are identified in court papers as “Prior Victim One to Thirteen,” former Playboy Club workers, models, aspiring actresses and comedy writers, flight attendants, cocktail waitresses, and secretaries, and they could play a significant role in the alleged sexual assault trial of entertainer Bill Cosby.

Montco DA Kevin R. Steele

Montgomery County District Attorney Kevin R. Steele alleges the unidentified women were victims of Cosby’s uncharged sexual misconduct from the 1970's through the 1990's and should be permitted to testify at Cosby’s trial on charges he sexually assaulted one woman, Andrea Constand, at his Cheltenham mansion in 2004. Steele argues the testimony is relevant “to establish a common plan, scheme or design” for the jury.

“During the course of this case, the commonwealth investigated nearly fifty women allegedly victimized by the defendant. What became clear was that defendant has engaged, over the course of his lifetime, in a pattern of serial sexual abuse,” Steele wrote in court papers.

But defense lawyer Brian J. McMonagle claims the prosecution is attempting “to bolster its weak case” with the testimony of 13 other women and that such testimony would be unfairly prejudicial to Cosby and should not be permitted. McMonagle argues due to the passage of time, “Cosby cannot even prove where he was at the time of many of the alleged incidents” and that the accusers’ allegations are “vague.”
Brian McMonagle/Photo by Carl Hessler Jr.

“The commonwealth’s strategy magnifies the unfair prejudice to Mr. Cosby significantly. Ten of these accusers did not come forward until more than a decade after the commonwealth’s highly publicized 2005 investigation. These ten accusers chose to wait until 27 to 46 years after the alleged incidents and after Mr. Cosby had gone blind,” McMonagle and co-defense lawyer Angela C. Agrusa wrote in court papers.

Judge Steven T. O’Neill will begin weighing the admissibility of the so-called “prior bad acts” when he holds a pretrial hearing on the matter beginning Tuesday. Local legal experts agree it’s a key pretrial battle that could determine the path that the lone criminal prosecution pending against Cosby takes.

“That’s what this case boils down to. That’s the whole thing. The more of that that comes in, the more helpful it is to the prosecution, plain and simple,” said criminal defense lawyer Jordan Friter. “That is ‘THE’ courtroom battle in this case. That has to be the goal of the defense from Day One - to keep as much of that, if not all of it, out as is certainly possible.”

Thomas C. Egan III/Photo by Carl Hessler Jr.

“Given the other rulings that have already been made, this is the largest ruling that is left. And if the defense is handicapped because the government is successful in litigating this motion so the evidence is all going to come in, then it’s going to be an avalanche of new evidence which is going to have to be gone over by the defense and rebutted on a case-by-case basis by the defense,” added Norristown criminal defense lawyer Thomas C. Egan III.

Egan and Friter, each a former prosecutor turned defense lawyer, have handled their fair share of high-profile local cases in county court but are not connected to the Cosby case.

So-called “prior bad acts” are sometimes allowed at trial but judges scrutinize such requests very carefully and require prosecutors to prove they’re relevant.

“As a defense lawyer, I would argue vigorously to keep it out. The key to any trial is that the judge provides a fair trial to the prosecution and to the defense,” said Lower Merion criminal defense lawyer Cary B. McClain, also a former prosecutor, who is not connected to the Cosby case.


Cosby, 79, faces a June 5, 2017, trial on charges of aggravated indecent assault in connection with his alleged contact with 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.
Bill Cosby/Montco Arrest Photo

The case represents the first time Cosby, who played Dr. Cliff Huxtable on “The Cosby Show” from 1984 to 1992, has been charged with a crime despite allegations from dozens of women who claimed they were assaulted by the entertainer. Cosby has been named in several civil lawsuits filed by women who claim he violated them too.

Cosby claims he was prejudiced by a decade-old delay in bringing sexual assault charges against him and that the charges should be thrown out.

But Steele has said prosecutors reopened the criminal investigation in July 2015 after segments of Cosby’s deposition connected to a 2005 civil suit brought against him by Constand were unsealed by a federal judge. In that deposition, Cosby gave damaging testimony, allegedly admitting he obtained Quaaludes to give to women with whom he wanted to have sex. Prosecutors contend Cosby also admitted for the first time that he had sexual contact with Constand. Cosby has suggested it was consensual contact.

“The release of these depositions generated a great deal of publicity, as well as a number of public claims by women who alleged Cosby had assaulted them under circumstances similar to those reported by (Constand),” prosecutors alleged in the arrest affidavit.

Legal insiders believe the key to the prosecution’s case against Cosby is the admissibility of evidence involving alleged victims who came forward after Constand’s allegations.


When prior bad acts testimony is admissible, it can be “incredibly damaging,” Friter said.
Jordan Friter/Photo by Carl Hessler Jr.

“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),” Friter said.

“If the government’s allowed to introduce this evidence it is not just one alleged victim who is making allegations against Mr. Cosby, it is a whole host of them, all of whom do not know each other. So it has a tendency to give greater credence to what these other people are saying…,” Egan added. “If they can’t introduce that evidence, then it’s the prosecution case rising and falling on the word of one alleged victim.”

Before putting on his defense hat, Friter, as a prosecutor, was captain of the district attorney’s sex crimes unit and in that capacity did file requests to admit prior bad acts at some trials.

“As a prosecutor that’s one of the most powerful weapons you have is to be able to bring in someone’s prior alleged conduct because normally it’s completely off limits. But, especially in a sexual assault case, if you can get it out there that a person has done the exact same thing before, in a jury’s eyes, that’s just powerful evidence of guilt,” said Friter, speaking generally.

“I had cases where it came in and cases where it didn’t. The cases where it came in they ended up being successful prosecutions, I think in large part because of that, absolutely, there’s no denying it,” said Friter, adding in a case where it’s one person’s word against another’s and you have something to “tip the scale” in favor of the victim “it’s hard for the defense to overcome that.”

McClain said it’s difficult for a defense lawyer to wage a fight against an accuser’s testimony about something that allegedly happened decades ago under circumstances where there are no police reports, no video and no other witnesses to the incident. 

Cary B. McClain/Photo by Carl Hessler Jr.
“It’s impossible to defend against those cases and you’re going to have a case within a case, within a case, and it’s going to confuse the jury and it is way too prejudicial,” McClain maintained.

On the other hand, the legal experts said, with no police reports available to corroborate the other accusers’ allegations of sexual misconduct, Cosby’s lawyers could argue the accusers’ claims are suspect.

“You also have the issue of making a sexual assault trial into larger trials on the sexual assault allegations made by all these other women. If the defense is going to litigate it properly they’re going to have to treat each one of those as a separate sexual assault trial to undermine the credibility of each one of those,” Egan said.

Regardless how O’Neill rules, it’s not likely to set any precedent, experts said.

“It will not set any precedent in the county - the legal standards are the legal standards. But it’s going to be interesting to see how Judge O’Neill applies them to the particular facts of this case,” Egan said.

Stay tuned, I'll be in the courtroom on Tuesday to give you the latest developments when Cosby returns to court. Follow @MontcoCourtNews on Twitter for updates.

[The newspapers do not normally identify victims of sex crimes without their consent but is using Constand’s name because she has identified herself publicly.]