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Cosby Team Has Heavy Burden in Appeal

Legal Team Must Decide Who Argues Case

If Bill Cosby received any boost in confidence from a Pennsylvania Superior Court ruling that vacated the conviction of rap star Meek Mill, it may have been short-circuited a day later when the state’s attorney general filed a brief asking the panel to deny Cosby’s request to overturn his 2018 conviction.

“In short, [Cosby’s] ‘heavy burden’ has not been surmounted and there was no abuse of discretion. For these reasons, this Court should affirm the judgement of sentence,” Pennsylvania Attorney General Josh Shapiro wrote in court briefs filed on Thursday July 25.

Shapiro’s brief was filed on behalf of Montgomery County District Attorney Kevin Steele, who faced a July 25 deadline to file an answer to Cosby’s petition for a new trial.

The Superior Court will hear oral arguments in the case on Monday, Aug. 12.

Cosby’s team faces an uphill battle – statistically speaking.

The appellate court in Pennsylvania has 17 justices – 11 women and six men.

Only one African American – a woman – sits among the 17.

An average of 8,000 appeals [civil and criminal] are filed to the Superior Court each year which inundates the relatively small amount of judges on the Court, according to statistics compiled by the state of Pennsylvania.

The most recent statistics show that, in 2016, a little more than 16 percent (716) of the 4,314 criminal appeals were reversed.

In 2015, about 18 percent – 745 of the 4,176 appeals – were reversed; and in 2014, approximately 16 percent (748) of the 4,594 appeals resulted in a reversal.

If the court rejects the appeal, Cosby could ask for a re-argument before the panel or a panel reconsideration of its decision.

In 2016, 3.9 percent of rejected appeals were granted a panel re-argument and only 3.3 percent were granted reconsideration by the panel.

Also, with the state’s highest law enforcement and prosecutorial body involved (Shapiro), experts said it’s vital Cosby chooses the right appellate lawyer to argue for his freedom.

“The defense’s strongest argument is the erroneous judge’s decision to allow five additional women to testify against Mr. Cosby,” said David Reischer, a criminal defense attorney and CEO of LegalAdvice.com.

“Specifically, the trial court abused its discretion, erred and materially infringed on Mr. Cosby’s constitutional rights to ‘Due Process of Law’ under the Constitution of the United States. The judge should not have allowed the admittance of five prior ‘bad act witnesses.’ The witnesses allegations were too far remote in time and too dissimilar to the Plaintiff’s allegations,” Reischer said.

Cosby will have five attorneys to choose from to argue his case, including:

His attorneys include:

Brian W. Perry, a former Dauphin County, Pennsylvania, prosecutor who has served as lead trial counsel in more than 125 jury and non-jury trials. Importantly, Perry has a long history arguing in the state Superior and Supreme Courts, which is where Cosby’s case could ultimately end up. Because the appeal is being argued in Dauphin County, it’s likely Perry would be familiar with the judges hearing the case.

Kristen L. Weisenberger, who works in Perry’s office, is also a former Dauphin County prosecutor with experience arguing appeals before the state Superior Court. Weisenberger is also an adjunct professor at the Harrisburg Area Community College where she teaches legal writing and research. She’s also lectured for the Police Academy, the Drug Enforcement Agency and the Pennsylvania Bar Institute.

Jennifer Bonjean, the owner and founder of Bonjean Law Group, PLLC., has extensive experience in criminal defense and civil rights litigation. Bonjean also specializes in appellate, post-conviction, and habeas corpus litigation and her life’s work has been committed to exposing the rampant police and prosecutorial misconduct that she said often leads to wrongful convictions.

Hugh J. Burns, Jr., a former Philadelphia prosecutor with appeals court experience, argued that the courts restore the conviction of a Roman Catholic church official, Monsignor William Lynn, who was convicted of endangering children by transferring an abusive priest to a new parish where the priest abused an altar boy.

An appeals court threw out the case in 2014 and said Lynn should never have been charged. Burns, who appealed that case to the state Supreme Court, also argued against the reversal of the death sentence of Mumia Abu-Jamal.

Sarah Kelly-Kilgoreof Los Angeles-based Greenberg Gross LLP is a curious choice because she has no known appellate experience and she focuses her practice on complex business matters, including private litigation in state and federal court, regulatory and enforcement actions, and sensitive internal investigations.

Kelly-Kilgore previously wrote in the National Law Journal her misgivings about a California Court of Appeals decision to allow Janice Dickinson’s defamation suit against Cosby to go forward. On Thursday, July 25, Cosby’s insurance company settled the suit with Dickinson without Cosby’s consent, according to Cosby’s spokesman Andrew Wyatt.

Dickinson sued Cosby when Cosby’s attorney disputed her sexual assault allegations against him. Kelly-Kilgore cited a 1991 Supreme Court case in which Justice Anthony Kennedy wrote that a lawyer “may take reasonable steps to defend a client’s reputation.”

“The California court ignored that principle in its decision,” Kelly-Kilgore wrote, adding that the decision “will improperly chill attorneys’ speech and prevent any person – the innocent along with the guilty – from relying upon his or her attorney to respond to public accusations of misconduct.”

 

 

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Stacy M. Brown

I’ve worked for the Daily News of Los Angeles, the L.A. Times, Gannet and the Times-Tribune and have contributed to the Pocono Record, the New York Post and the New York Times. Television news opportunities have included: NBC, MSNBC, Scarborough Country, the Abrams Report, Today, Good Morning America, NBC Nightly News, Imus in the Morning and Anderson Cooper 360. Radio programs like the Wendy Williams Experience, Tom Joyner Morning Show and the Howard Stern Show have also provided me the chance to share my views.

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