Bill Cosby’s lawyers have a date with the Pennsylvania Superior Court on Friday, Jan. 18.
While nothing earth-shattering is expected, the briefing counts among the initial steps that the attorneys must take if the imprisoned entertainer is to win his appeal. However, getting a criminal conviction overturned in the United States is one of the most daunting challenges in the American Justice System.
Cosby, 81, was convicted in April 2018 of three counts of aggravated indecent assault.
In September, he was sentenced to three to 10 years in prison which led many defense attorneys and others to blast both the conviction – which contained no physical and very little circumstantial evidence – and the sentence – at 81, Cosby had previously never run afoul of the law and he’s blind – as unjust.
Still, Cosby faces an uphill battle in his bid for freedom, according to several experts who told NNPA Newswire this week that as many as 90 percent of the myriad of appeals heard are normally rejected.
“The problem with criminal appeals is that a criminal appeal does not exist to ensure that a just, fair, honest, or equitable verdict exists,” said Attorney Benjamin F. Schwartz of the Dover, DE., firm of Schwartz and Schwartz.
“If someone tells you that’s the purpose of an appeal, they are lying to you. It’s not like the appellate judges are looking at the trial transcripts and trying to figure out if the accused person got a fair trial or if his lawyer screwed up the case,” Schwartz said.
In filing their appeal last month, Cosby’s attorneys cited more than 10 trial errors by Montgomery County, Pa., Judge Steven T. O’Neill.
And, if O’Neill did indeed err, the lawyers had better cite something that could be deemed so egregious that it moves the appellate court toward reversal.
“Trial judges make mistakes all the time,” Schwartz said.
“The appeal exists to make sure that the trial judge didn’t make a bad mistake, the type that would have ruined the accused ability to get a fair trial.”
To win a direct appeal after a criminal conviction, lawyers must prove that without the error by the trial judge, the case would have resulted in an acquittal, Schwartz said.
Falen O. Cox, a partner of the Georgia-based firm Cox, Rodman & Middleton, LLC, has practiced appeals before the Georgia Court of Appeals and Supreme Court of Georgia for more than eight years.
Cox, an African American female attorney, said more than 90 percent of criminal convictions in the Peach State are affirmed.
“The culprit is the principal/theory of ‘harmless error,’” Cox said.
“Generally an appeal focuses on mistakes that were made by the prosecutor, the judge, defense attorney and the jury.
“For example, perhaps the prosecutor said something in a closing argument that the rules do not allow – a mistake, the defense attorney does not object – also a mistake, defense counsel does, however, object when the prosecution calls a witness who testifies about something that another witness already testified about, the judge overrules that objection but it should have been sustained because the testimony was cumulative and bolstering because hearing a co-sign makes the jury more likely to believe what the first witness said, which is also mistake,” Cox said.
When the appellate lawyers reviews the file, he or she raises all of those mistakes as error on appeal and includes it in the brief – things that happened that should not have happened – mistakes other people made during the course of defendant’s trial.
“Appellate counsel argues that because of these errors the conviction should be overturned. On appeal, the appellate court may acknowledge, and agree that all of the mistakes mentioned above were made. However, the appellate court can acknowledge this and still deny the defendant’s appeal by citing ‘harmless error,’” she said.
Further making it tough to win an appeal is that the standards and rules governing appeals are heavily stacked against the defendant, said Nora V. Demleitner, a Roy L. Steinheimer Jr. Professor of Law at Washington and Lee University in Virginia.
“Only rarely does the defendant appeal from a guilty plea and when they do so, the appeal tends to focus on the type or length of the sentence imposed,” Demleitner said.
Part of Cosby’s appeal does attack the length of sentencing where the Pennsylvania Code typically recommends anywhere from probation to one-to-three years in prison.
“The reasons for an appeal upon a trial conviction tend to be limited. After all, our appeals courts – in contrast to those in civil law countries, like Germany or France – don’t do a second review of the facts in a case,” Demleitner said.
“In a jury system, where the decision-makers don’t provide any reasoning for their decision, that would be virtually impossible to do. Appeals therefore are limited to legal issues and here the burdens to overrule a decision by the trial court is a heavy one,” she said, noting that one of the burdens include abuse of discretion.
“So, it is frequently the standard that applies on appeal that bedevils a criminal defendant. It sets up an insurmountable hurdle. In effect, an appellate court may come out differently if it decided the question on its own, but it doesn’t disagree enough to be able to overturn the trial court’s decision on appeal,” Demleitner said.
Although at trial the burden is on the prosecution to prove beyond reasonable doubt, once convicted, if arguing the facts were insufficient at trial, the burden is now on the defendant to establish on appeal that the trial judge or jury’s finding was clearly erroneous or substantial evidence, said Matt C. Pinsker, an adjunct professor of Homeland Security and Criminal Justice at the L. Douglas Wilder School of Government and Public Affairs at Virginia Commonwealth University.
However, Pinsker said, “if it is a question of a matter of which judges have discretion, such as an evidentiary matter, the appeals courts are legally required to give discretion to the trial judge, especially considering the appellate judges were not there in person to personally observe and hear the case.”
If it is a legal question like how the trial judge interpreted the law, it is then reviewed as “de novo,” meaning without any deference or consideration to how the trial judge ruled. Pinsker said.
“Another issue is that many times, not only must the defense meet the legal standard on appeal, but many times they must also show that the error of the trial court was prejudicial, and that the case would have been decided differently had the lower court ruled properly,” he said.
“There are often cases where on appeal the appellate judges agree with the defense that the trial court made a mistake but opine that would not have changed the outcome.”
Paul Wallin, a senior partner at Wallin & Klarichwith 40 years of appellate work under his belt, said Court of Appeals Justices are seasoned lawyers before they become judges and most have been trial judges for years before becoming appeal justices.
When they reach a decision to reverse or affirm an accused criminal conviction, they do so based upon the law that they are bound to uphold and without consideration for the feelings of anyone, including hurting the feelings of the trial judge or any other person, Wallin said.
“However, this does not mean that Court of Appeals Justices do not get it right all the time. This is why we have the [State] Supreme Court and the U.S. Supreme Court,” he said.
Wallin continued:
“In some cases, the Court of Appeals decision will be to uphold the conviction and then the State Supreme or U.S. Supreme Court will reverse the conviction and provide the defendant the chance at a new trial.
“We have been handling appellate matters for more than 35 years, and we have seen first-hand that you should never stop fighting for your freedom.”
