Bill Cosby denied appeal, but other avenues to freedom remain

Zak Goldstein, Special to NNPA Newswire | 12/14/2019, 8:59 a.m.
Bill Cosby, who in 2018 was convicted and sentenced to prison on aggravated indecent assault charges, has lost his bid ...
A Norristown jury found comedian Bill Cosby on three counts of aggravated indecent sexual assault. Some legal experts said that Cosby might get another trial. (POOL PHOTO)

Bill Cosby, who in 2018 was convicted and sentenced to prison on aggravated indecent assault charges, has lost his bid for an appeal to the Pennsylvania Superior Court.

Zak Goldstein, an attorney who specializes in criminal defense appeals in Pennsylvania, told NNPA Newswire that the court’s denial of Cosby isn’t the last hurrah for the actor and comedian.

Goldstein, who does not represent Cosby, outlines what’s next for Cosby and his team. ~ Editors

Unfortunately, the majority of criminal appeals in Pennsylvania are denied by the Superior Court – meaning it is relatively rare for them to reverse a criminal defendant’s conviction or sentence.

In my experience, this seems to hold true whether the case was a high-profile case or not.

It happens, but the error committed by the trial court has to be significant AND preserved by the trial attorney, meaning the trial attorney must have made a timely objection at the time that the error occurred.

The case law directs the Superior Court to provide a great deal of deference to the rulings of the trial judge for most evidentiary issues.

For example, the issue of whether the other accusers who were not actually part of the case should have been allowed to testify is an issue where the Superior Court applies an “abuse of discretion standard.”

This means that they will not review the issue for whether they would have admitted the evidence themselves if they were initially making the ruling, but instead they look at whether it was unreasonable for the trial judge to make that ruling.

Unless the judge was clearly wrong, they are not going to reverse the conviction for that reason.

With respect to prior bad acts evidence, such as these other accusers, trial courts often let this type of evidence in where the Commonwealth can show that the allegations were similar or somewhat similar to the allegations in the current case, and the appellate courts usually approve of this.

It then becomes incredibly difficult to obtain a fair trial as this type of propensity evidence is overwhelmingly prejudicial.

This is particularly true in cases involving sex offenses. Most cases involving alleged sex crimes do not involve forensic evidence, and there are usually not any witnesses other than the complainant.

Therefore, prosecutors have responded by pushing for rules which make it easier to obtain a conviction and defend a conviction in these types of cases.

By piling on with other unproven allegations, even where the defendant is not charged with those offenses, the prosecution increases its chances of obtaining a conviction.

In my view, the case law which the Superior Court followed in this case does not adequately recognize the overwhelming, prejudicial effect of this type of evidence and the way in which it makes it incredibly difficult to obtain a fair trial on the actual allegations in question.

It is not surprising to me that the first trial, where only one “prior bad act” was allowed into evidence, resulted in a hung jury while the second trial, where more accusers were allowed to testify, resulted in a conviction.