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Attorneys Prepare Uphill Battle to Win Freedom for Bill Cosby

NNPA NEWSWIRE — 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.

Published

6 years ago

January 12, 2019

Oakland Post

By Stacy M. Brown, NNPA Newswire Correspondent
@StacyBrownMedia

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<a href=”http://www.crmattorneys.com/”>, Rodman & Middleton, LLC</a>, 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 <a href=”https://www.wklaw.com/”>Wallin & Klarich</a>with 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.”

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#NNPA BlackPress

Recently Approved Budget Plan Favors Wealthy, Slashes Aid to Low-Income Americans

BLACKPRESSUSA NEWSWIRE — The most significant benefits would flow to the highest earners while millions of low-income families face cuts

Published

3 days ago

March 21, 2025

Stacy M. Brown

By Stacy M. Brown

BlackPressUSA.com Senior National Correspondent

The new budget framework approved by Congress may result in sweeping changes to the federal safety net and tax code. The most significant benefits would flow to the highest earners while millions of low-income families face cuts. A new analysis from Yale University’s Budget Lab shows the proposals in the House’s Fiscal Year 2025 Budget Resolution would lead to a drop in after-tax-and-transfer income for the poorest households while significantly boosting revenue for the wealthiest Americans. Last month, Congress passed its Concurrent Budget Resolution for Fiscal Year 2025 (H. Con. Res. 14), setting revenue and spending targets for the next decade. The resolution outlines $1.5 trillion in gross spending cuts and $4.5 trillion in tax reductions between FY2025 and FY2034, along with $500 billion in unspecified deficit reduction.

Congressional Committees have now been instructed to identify policy changes that align with these goals. Three of the most impactful committees—Agriculture, Energy and Commerce, and Ways and Means—have been tasked with proposing major changes. The Agriculture Committee is charged with finding $230 billion in savings, likely through changes to the Supplemental Nutrition Assistance Program (SNAP), also known as food stamps. Energy and Commerce must deliver $880 billion in savings, likely through Medicaid reductions. Meanwhile, the Ways and Means Committee must craft tax changes totaling no more than $4.5 trillion in new deficits, most likely through extending provisions of the 2017 Tax Cuts and Jobs Act. Although the resolution does not specify precise changes, reports suggest lawmakers are eyeing steep cuts to SNAP and Medicaid benefits while seeking to make permanent tax provisions that primarily benefit high-income individuals and corporations.

To examine the potential real-world impact, Yale’s Budget Lab modeled four policy changes that align with the resolution’s goals:

A 30 percent across-the-board cut in SNAP funding.
A 15 percent cut in Medicaid funding.
Permanent extension of the individual and estate tax cuts from the 2017 Tax Cuts and Jobs Act.
Permanent extension of business tax provisions including 100% bonus depreciation, expense of R&D, and relaxed limits on interest deductions.

Yale researchers determined that the combined effect of these policies would reduce the after-tax-and-transfer income of the bottom 20 percent of earners by 5 percent in the calendar year 2026. Households in the middle would see a modest 0.6 percent gain. However, the top five percent of earners would experience a 3 percent increase in their after-tax-and-transfer income.

Moreover, the analysis concluded that more than 100 percent of the net fiscal benefit from these changes would go to households in the top 20 percent of the income distribution. This happens because lower-income groups would lose more in government benefits than they would gain from any tax cuts. At the same time, high-income households would enjoy significant tax reductions with little or no loss in benefits.

“These results indicate a shift in resources away from low-income tax units toward those with higher incomes,” the Budget Lab report states. “In particular, making the TCJA provisions permanent for high earners while reducing spending on SNAP and Medicaid leads to a regressive overall effect.” The report notes that policymakers have floated a range of options to reduce SNAP and Medicaid outlays, such as lowering per-beneficiary benefits or tightening eligibility rules. While the Budget Lab did not assess each proposal individually, the modeling assumes legislation consistent with the resolution’s instructions. “The burden of deficit reduction would fall largely on those least able to bear it,” the report concluded.

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#NNPA BlackPress

A Threat to Pre-emptive Pardons

BLACKPRESSUSA NEWSWIRE — it was a possibility that the preemptive pardons would not happen because of the complicated nature of that never-before-enacted process.

Published

3 days ago

March 21, 2025

Oakland Post

By April Ryan

President Trump is working to undo the traditional presidential pardon powers by questioning the Biden administration’s pre-emptive pardons issued just days before January 20, 2025. President Trump is seeking retribution against the January 6th House Select Committee. The Trump Justice Department has been tasked to find loopholes to overturn the pardons that could lead to legal battles for the Republican and Democratic nine-member committee. Legal scholars and those closely familiar with the pardon process worked with the Biden administration to ensure the preemptive pardons would stand against any retaliatory knocks from the incoming Trump administration. A source close to the Biden administration’s pardons said, in January 2025, “I think pardons are all valid. The power is unreviewable by the courts.”

However, today that same source had a different statement on the nuances of the new Trump pardon attack. That attack places questions about Biden’s use of an autopen for the pardons. The Trump argument is that Biden did not know who was pardoned as he did not sign the documents. Instead, the pardons were allegedly signed by an autopen. The same source close to the pardon issue said this week, “unless he [Trump] can prove Biden didn’t know what was being done in his name. All of this is in uncharted territory. “ Meanwhile, an autopen is used to make automatic or remote signatures. It has been used for decades by public figures and celebrities.

Months before the Biden pardon announcement, those in the Biden White House Counsel’s Office, staff, and the Justice Department were conferring tirelessly around the clock on who to pardon and how. The concern for the preemptive pardons was how to make them irrevocable in an unprecedented process. At one point in the lead-up to the preemptive pardon releases, it was a possibility that the preemptive pardons would not happen because of the complicated nature of that never-before-enacted process. President Trump began the threat of an investigation for the January 6th Select Committee during the Hill proceedings. Trump has threatened members with investigation or jail.

Oakland Post

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#NNPA BlackPress

Reaction to The Education EO

BLACKPRESSUSA NEWSWIRE — Meanwhile, the new Education EO jeopardizes funding for students seeking a higher education. Duncan states, PellGrants are in jeopardy after servicing “6.5 million people” giving them a chance to go to college.

Published

3 days ago

March 21, 2025

Oakland Post

By April Ryan

There are plenty of negative reactions to President Donald Trump’s latest Executive Order abolishing the Department of Education. As Democrats call yesterday’s action performative, it would take an act of Congress for the Education Department to close permanently. “This blatantly unconstitutional executive order is just another piece of evidence that Trump has absolutely no respect for the Constitution,” said Rep. Maxine Waters (D-CA) who is the ranking member on the House Financial Services Committee. “By dismantling ED, President Trump is implementing his own philosophy on education, which can be summed up in his own words, ‘I love the poorly educated.’ I am adamantly opposed to this reckless action, said Rep. Bobby Scott who is the most senior Democrat on the House Education and Workforce Committee.

Morgan State University President Dr. David Wilson chimed in saying “I’m deeply concerned about efforts to shift federal oversight in education back to the states, particularly regarding equity, justice, and fairness. History has shown us what happens when states are left unchecked—Black and poor children are too often denied access to the high-quality education they deserve. In 1979 then President Jimmy Carter signed a law creating the Department of Education. Arne Duncan, former Obama Education Secretary, reminds us that both Democratic and Republican presidents have kept education a non-political issue until now. However, Duncan stressed Republican presidents have contributed greatly to moving education forward in this country.

During a CNN interview this week Duncan said during the Civil War President Abraham “Lincoln created the land grant system” for colleges like Tennessee State University. “President Ford brought in IDEA.” And “Nixon signed Pell Grants into law.” In 2001, the No Child Left Behind Act was signed into law by President George W. Bush which increased federal oversight of schools through standardized testing. Meanwhile, the new Education EO jeopardizes funding for students seeking higher education. Duncan states, PellGrants are in jeopardy after servicing “6.5 million people” giving them a chance to go to college. Wilson details, “that 40 percent of all college students rely on Pell Grants and student loans.”

Rep. Alma Adams (D-NC) says this Trump action “impacts students pursuing higher education and threatens 26 million students across the country, taking billions away from their educational futures. Meanwhile, During the president’s speech in the East Room of the White House Thursday, Trump criticized Baltimore City, and its math test scores with critical words. Governor West Moore, who is opposed to the EO action, said about dismantling the Department of Education, “Leadership means lifting people up, not punching them down.”