After nearly a year behind bars, Bill Cosby is hoping to go home soon.
His fate lies in the hands of the six attorneys who are set to plead for his freedom Monday during oral arguments in Harrisburg, Pa.
Cosby was convicted in April 2018 of three counts of aggravated indecent assault and in September received a three- to 10-year prison sentence.
In a preview of arguments the attorneys will make to a three-judge panel of the state Superior Court, the lawyers filed documents known as “Statement of Matters Complained on Appeal.”
One involves Juror #11. Upon being selected to serve, the still-unidentified juror told other potential panelists, “We can all go home, [Cosby’s] guilty.”
Defense attorney Tom Mesereau, who is not among the six appellate lawyers, asked for the juror’s removal. However, trial Judge Steven O’Neill denied that request.
Led by veteran appeals attorneys Brian W. Perry and Kristen L. Weisenberger, Cosby’s attorneys are expected to argue that juror #11 should not have served.
Pennsylvania Attorney General Josh Shapiro and prosecutors are expected to counter that the criminal trial was fair and any issues should have been raised during the trial.
Another motion could include juror #3. During the trial, it was revealed that the juror was a neighbor of O’Neill’s stenographer.
In a pre-selection questionnaire, juror #3 said she considered herself an “independent thinker and welcomed the opportunity to serve on a jury.”
One year before serving, that juror sent an ominous tweet to attorney Lisa Bloom, the lawyer for women who’ve accused Cosby of sexual assault.
The juror tweeted a photo and an excerpt from former Fox News host Bill O’Reilly’s book: “Found this gem-teen advice from O’Reilly. ‘And guys, if you exploit a girl, it will come back to get you. That’s called “karma.”‘ @LisaBloom.”
She has since deleted the tweet, but not before one courtroom observer, Dr. Jay Raskin, took a screenshot of it.
Cosby’s team has provided appellate judges with a list of several errors they say violated Cosby’s fundamental civil, legal and constitutional rights. In short, his attorneys said the errors deprived Cosby of the right to a fair trial.
The appeals court is an error-reviewing court only.
Bad errors by the trial judge regarding specific laws are often dismissed as harmless, legal experts said.
But Cosby’s attorneys said violation of his Fifth Amendment rights is not a harmless error. They will likely argue that former Montgomery County District Attorney Bruce Castor closed the case against Cosby in 2005 with the guarantee it would remain closed forever.
Castor testified during a pretrial hearing that, “as the sovereign of the Commonwealth, I had a binding promise/agreement that the defendant would not be charged.”
O’Neill refused to honor that agreement and ordered Cosby to stand trial.
“Even if the court deems Castor as ‘not credible,’ the nature of the aggregated evidence O’Neill allowed the prosecution to present affected the already tainted jurors, which led to the conviction,” a source said.
Defense lawyers also have suggested that the judge ignored evidence that proved the 12-year statute of limitations had expired in the case.
The incident between Cosby and Andrea Constand was said to have occurred in January 2004 and charges weren’t brought until December 2015.
Debbie Meister, Cosby’s tour manager and assistant, compiled a schedule and flight logs that proved Cosby wasn’t in Pennsylvania when and where Constand said the assault occurred.
Meister testified to that, but O’Neill dismissed her information.
The attorneys have argued that O’Neill refused to allow Cosby’s private investigators to testify on his behalf to summarize evidence regarding Cosby’s phone and travel records.
O’Neill decided against ruling on the statute of limitations, saying it was the job of Cosby’s attorneys to present that to jurors during closing arguments.
Mesereau did present a detailed timeline that appeared to show Cosby wasn’t in Pennsylvania during or around the time of the incident with Constand in 2004.
Phone records presented showed Constand repeatedly tried to reach Cosby, but she wasn’t successful.
“But throughout the trial, the judge pounded it into the jurors that ‘statements from counsel were not evidence,’” the source said.
Attorneys will also argue that five “prior bad act” witnesses should not have been allowed to testify.
During trial testimony, it was established that Cosby provided over-the-counter Benadryl tablets to Constand. The five witnesses said he plied them with prescription quaaludes.
Lawyers hope to bolster their argument by pointing out that juror Harrison Snyder told ABC News that “Cosby’s own words made him guilty,” a reference to Cosby’s statement about partying with quaaludes in the 1970s.
They said quaaludes is far different from Benadryl and any reference to them should not have been allowed.
The juror’s admission that it helped him vote for conviction should bode well for Cosby.
Snyder said Constand’s testimony against Cosby didn’t convince him, telling ABC News, “there were doubts in my mind because there were inconsistencies.”
He said he was swayed in part by psychiatrist Dr. Barbara Ziv, who testified that inconsistencies are not uncommon.
Cosby’s team may challenge Ziv’s testimony because she’s not an expert on statistics but was allowed to use them.
Lawyers said statistics are often used to mislead and only statisticians should be allowed to present them during testimony.
“The statistics used by Ziv were demonstrably false and prejudicial and should never have been allowed,” a source close to Cosby said.
For example, Ziv claimed that only 2 percent to 10 percent of rape claims were found to be false. However, Cosby’s attorneys have pointed out that those percentages were based on opinions and not actual statistical evidence. Actual studies have demonstrated that 40 percent to 50 percent of accusations are typically false.
So, Ziv presenting false stats as an expert witness unacceptably prejudiced the jury because O’Neill instructed the jury to accept what the expert witness said as fact, Cosby’s team argued.
Ahead of the appeal, Cosby spokesman Andrew Wyatt said Cosby remains in good spirits.
“He’s strong. He’s doing well,” Wyatt said, adding that Cosby and his wife of more than 50 years, Camille, are confident that he will be vindicated.
