Legal experts: ‘What Bill Cosby’s appeal may look like’

As comedian Bill Cosby exited the Montgomery County courthouse on Thursday afternoon having been found guilty on three felony counts of drugging and assaulting Andrea Constand, his high-powered attorneys had already given notice of their plans to appeal a verdict that could jail the 80-year old for the rest of his life.

In an effort to prevent Cosby’s feet from ever reaching the Norristown pavement, Montgomery County District Attorney Kevin R. Steele petitioned but failed to have Judge Steven T. O’Neal, the presiding judge in both Cosby’s original trial last June and his retrial, imprison Cosby, setting the stage for the appeal process to begin.

According to legal experts whom The Tribune spoke with, at the heart of the appeal is the likely argument that the judge allowed five women to testify for the prosecution. Last June, after a heated battle, O’Neal permitted just Constand’s testimony.

Local civil rights attorney Brian Mildenberg paid close attention to both trials from start to finish. Reached Friday, he said that the number of witnesses permitted is determined at the discretion of the judge. His defense will argue that the additional testimony prejudiced the jury, and they may also point to any of the judge’s rulings during the retrial as a reason for appeal.

“It was a close call, the judge said as much, and it could have very easily gone either way,” Mildenberg said. “But the major difference is the number of women who alleged he had assaulted them to be introduced to the jury to give examples of bad acts. Based on that distinction, I’m sure that’s the direction they will go in trying to get it overturned on appeal.”

The power of this sort of ruling was highlighted by another local expert who chose to speak anonymously. As an example, he pointed to the Supreme Court confirmation hearings for Supreme Court Justice Clarence Thomas almost three decades ago.

Democrats fought and lost in their bid to have Angela Wright, another Thomas accuser, testify against him. As it turned out, only Anita Hill was permitted to testify. Had Wright’s testimony been permitted, perhaps Thomas would never have succeeded Thurgood Marshall as the second African-American Supreme Court Justice.

“While this is very subjective, it speaks to the power of adding another voice to make a case stronger,” the expert said. “Ultimately you have two different trials. They raised separate issues in each trial. But the most glaring difference is in the number of witnesses allowed. I can’t say for sure what the state Supreme Court will hang its hat on, but that is a natural distinction that is clear.”

 In the original trial, which ended in a hung jury, jurors deliberated for six days, about 52 hours, without reaching a verdict. Conversely, a verdict was reached in the retrial in about two days or just more than 10 hours of deliberation.

Now a convicted felon on house arrest, Cosby will face sentencing within 60 to 90 days of Thursday’s verdict. In Pennsylvania, a notice to appeal must be filed within 30 days of sentencing.

With each count carrying a maximum of 10 years, Cosby faces a maximum of 30 years in prison. However, Steele indicated that he would not push for that sentence.

“He was convicted on three counts of indecent assault, so technically that would be up to 30 years. However, we have to look at the merger of those counts to determine what the final maximum will be.”

More than 50 women accused Cosby of sexual assault or misconduct, sighting alleged incidents that stretched back from 1965 through the 1990s. However, only Constand’s led to charges.