Bill Cosby’s effort to persuade the judge who sentenced him to prison to reconsider his sex-crimes conviction and sentence was taken apart by prosecutors who described his lawyers’ motions as “meritless” and not worthy of even holding a hearing.
The response filed Friday in Montgomery County outside Philadelphia by District Attorney Kevin Steele described Cosby’s conviction in April on three counts of aggravated indecent sexual assault as a “timeworn case” and mocked Cosby for already having his “many days, months, and even years” in court.
“The claims he raises in his post-sentence motion do not warrant evidentiary development, several have already been rejected, and they are all meritless,” the prosecution response read. “It is time to move on, it is time for the appellate courts to bring this case one step closer to finality.”
Cosby’s third team of defense lawyers, led by Joseph Green, has already left the case and Cosby is in the process of bringing on a fourth team of Harrisburg-based lawyers.
But before they left the building, Green and appellate lawyer Peter Goldburger filed a motion 10 days ago asking Judge Steven O’Neill – the same judge they have already criticized as biased and unethical – to reconsider his three-to-10-year sentence for Cosby at a hearing and grant a new trial. They also renewed their campaign to get O’Neill to recuse himself.
Or, alternatively, they want O’Neill to modify the sentence to allow Cosby to be bailed out of prison pending a full appeal of his conviction for drugging and molesting accuser Andrea Constand at his suburban home in January 2004.
That should not happen, argued Steele and Deputy District Attorney Robert Falin in the prosecution’s official response, which was due Friday.
They argued that Cosby was not entitled to a new trial despite his questioning whether the crime occurred within the statute of limitations (it does, they argue). They also dismantle Cosby’s demand for a new trial based on “new evidence” discovered after the trial that an audio recording used against him was incomplete and thus inauthentic.
Cosby’s lawyers are wrong in asserting this compels a new trial, the prosecutors argue, because the standard for relief based on after-discovered evidence is “onerous,” requiring proof the evidence in question meet certain criteria, including being of “such a nature and character that it would have compelled a different verdict.”
“Even a cursory review of (Cosby’s) claim reveals that he cannot meet this standard,” the prosecution response asserts.
Nor is Cosby entitled to a reconsidered sentence based on his age, 81, and his health (he’s legally blind), and his assertion that Judge O’Neill did not follow sentencing guidelines for the crimes.
“(Cosby) has raised a proverbial everything-but-the-kitchen sink of arguments in hopes that this court will give him a better sentence,” the prosecutors write. But the judge’s rulings were “thoughtful,” “reasonable” and within Pennsylvania law. “His claims are all meritless and a hearing is therefore unnecessary.”
A key argument by Cosby’s lawyers is his complaint that O’Neill allowed five other accusers to testify against Cosby at his second trial (he allowed only one at the first trial, which ended in a hung jury) about their allegations that Cosby drugged and sexually assaulted them, too, even though these crimes were not charged.
But prosecutors assert that Pennsylvania law allows judges to consider testimony about uncharged crimes in sentencing. “As such, this court did not abuse its discretion by its careful and limited consideration of the testimony of the prior bad-acts victims.”
Prosecutors seemed to be most irritated by Cosby’s renewal of his effort to get O’Neill to recuse himself from the case; Cosby has raised similar motions multiple times since the judge was assigned the case in January 2016.
“He does not add anything new that would warrant reconsideration,” the prosecutors write. “As this court aptly explained in its (Sept. 19 rejection of recusal) the claim is devoid of merit.”
The next move is up to O’Neill to hold a hearing on Cosby’s motion or reject it outright as Steele wants him to do.
But this is only a preliminary step, trial experts say: If O’Neill denies Cosby’s motion, his defense team could go over O’Neill’s head to challenge the sentence to a three-judge panel of the state Superior Court.
Meanwhile, Cosby remains in a cell apart from general population in SCI Phoenix prison in Schwenksville, Pennsylvania.