The latest interesting turn in the Cosby case
Someone recently said to me that we need to presume our judges are going to be ethical.
And I thought, oh what an adorable cockeyed optimist.
Having worked for one of the finest and most ethical jurists on the bench, the late great James R. Cavanaugh of the Pennsylvania Superior Court, I fully believe that most of the men and women on the bench strive to live up to their “Honorable” title.
But our legal system, both civil and especially criminal, is based on the proposition that litigants deserve fairness or what we in the business call “due process,” and so just hoping that judges are going to go all Spike Lee on us and do the right thing is naïve, improper and ultimately dangerous.
That’s why we have a set of rules and regulations for how judges should conduct themselves both in and out of the courtroom. Let’s call it the Honorable Code.
The reason we should all be interested in the ethics of judges is being played out now in Montgomery County. It’s something that already looks like a normal soap opera, but which has the capacity to turn into one of those telenovelas where women scream, men scream back, shots are heard and in the next room someone is giving birth to a baby.
Judge Steven O’Neill has been presiding over the Bill Cosby trial since last year. As you will recall, last June the judge was forced to declare a mistrial because the jury couldn’t come to a unanimous verdict. I remember during deliberations that Judge O’Neill sent the jurors back several times after they announced that they were hopelessly deadlocked. That seemed unusual to me and a bit heavy-handed, although legal experts didn’t see too much of a problem with that tactic.
I have been watching closely in the run-up to the retrial, which was foretold exactly two and a half minutes, or so it seemed, after the jury announced their deadlock last June. Montco District Attorney Kevin Steele took the microphone and said that he was going to retry the case, which was also a bit strange since he hadn’t even had an opportunity to examine what he’d done wrong.
I mean, clearly, he did something wrong if he couldn’t get a jury to convict Bill Cosby after the media had already been so successful in convicting him in the court of public opinion. When you have women, NPR, all of the cable networks and three quarters of Hollywood in your corner and rooting for you, it’s pretty amazing that you can’t convict the fellow of at least one count of not holding the door open for a woman.
But the jury did what juries sometimes do, confound you. O.J, anyone? So Steele, who had made the Cosby case the crown jewel of his election campaign back in 2015, doubled down and announced was going for a retrial. That’s fine. He’s entitled.
So here we are on the eve of retrial, and what happens? The Cosby defense team files a motion to have the judge recuse himself because the judge’s spouse, Deborah O’Neill, is a counselor for domestic abuse victims and has been extremely vocal about her support for those who have accused their alleged attackers even years after the fact. More importantly, and relevant to the Cosby case, is a donation she made to a group that is facilitating an anti-Cosby rally in front of the courthouse on Monday.
I guess some would say it’s actually a rally in support of Cosby’s accusers, but that’s very to-may-to/to-mah-to if you ask me.
Under the rules for disqualification at Section 2.11 A (2), a judge should consider recusal if “The judge knows that … the judge’s spouse … is … a person who has more than a de minimis interest that could be substantially affected by the proceeding.”
I would say that a woman who counsels female abuse victims has more than a de minimis interest in a criminal prosecution against a man who is being accused of abusing female victims. This information was never made available to the defense. That’s terribly wrong.
Additionally, there is evidence that the judge also withheld some relevant personal information about his contentious relationship with Bruce Castor, a key witness in the Cosby case and someone Judge O’Neill found to be “not credible.” Castor, as you will remember, testified that when he was D.A. back in 2006, he chose not to prosecute the case against the Philly native because of his belief that the accuser’s story would not withstand cross-examination. Constand waited a year to complain about the alleged abuse, and had maintained cordial contact with him.
O’Neill doesn’t like Castor. O’Neill’s wife doesn’t like Cosby. That doesn’t mean he’s not guilty. It does mean that this perfect storm of conflicts mandates that the judge take himself off of this case.
But on Thursday afternoon, the judge decided he would not recuse himself. He was apparently appalled at the assault on his wife’s reputation. He will stay on the bench.
I guess we’ll just have to watch very closely to see if this gets appealed to a higher authority. Yup, the telenovela is getting very interesting.