A judge and several lawyers from Montgomery County, Pennsylvania will be in Pittsburgh Monday to pick a jury to take back to suburban Philadelphia. The 12 jurors and six alternates will be tasked with hearing the sexual assault trial of comedian Bill Cosby.
The crime allegedly took place in Cosby’s suburban Philadelphia home in 2004. He faces up to 30 years in prison if convicted.
Cosby’s defense team asked for what is known as a change in venire, which is different than a change in venue where the entire trial is moved to another county. The lawyers argued that pretrial publicity had tainted the jury pool in Montgomery County.
University of Pittsburgh Law Professor David Harris said he doesn't think Allegheny County jurors are any less aware of the case.
“It’s been everywhere. Bill Cosby has been a national and international entertainment figure for decades,” Harris said. “It’s kind of hard to understand why there would be more media saturation in Montgomery County than Allegheny County.”
Patrick Thomassey has been the defense attorney in several high profile cases in his 42 years as a lawyer. He said in some cases its just something that a defense team has to do.
“If you have a case that got a tremendous amount of publicity and you don’t file, then somewhere down the road the Supreme Court of the Superior Court will say, ‘well you know you weren’t effective, why didn’t you do that,’” Thomassey said. “Sometimes you file those motions to hoping they’re not granted.”
Harris said it’s possible Cosby’s lawyers were indeed hoping to have their request rejected just to have a reason to appeal a guilty verdict. But it seems Judge Steven T. O’Neill of Montgomery County, who is hearing the case, squashed that plan.
“Maybe the theory is, 'OK, we’ll give it to you. We might not think it will make any difference but we will give you all the due process you’re asking for,'” Harris said.
The defense lawyers countered with a request to expand the list of 16 standard questions sent to potential jurors to fill out before they appear for jury duty. That motion was denied.
There were concerns the questionnaire itself could lead to a potential juror doing research on the case, which could prejudice their view of the case, making it harder, rather than easier, to pick a jury.
Thomassey said lawyers are not necessarily looking for jurors who know nothing about a case.
“Most people say, ‘I’ve heard of it but I could be fair.’ And then you have to judge whether or not that person really can be [fair],” Thomassey said. “That’s the hardest part. It’s all about feel.”
Thomassey used an out-of-county jury in the trial of Brentwood police officer Milton Mulholland. Mulholland and two other officers were charged in the 1995 death of Jonny Gammage.
He said if there is a suspicion that lawyers would not be able to pick a local jury, it’s best to make the decision to change venire right away. Otherwise, he said, you could get part way through picking the jury and then have to make the motion.
“Then you have to go to the Supreme Court and file motions, and then they have to assign a county, and then you have to contact the other county, so a delay of maybe six months occurs in the trial,” Thomassey said.
Allegheny County was not chosen at random by the judge hearing the case. Once a motion to change venire or change venue is approved, it is sent to the State Supreme Court to choose the county. In this case, the defense team suggested that the county needed to have more than one million residents to be large and diverse enough to successfully pick a jury.
Other than Philadelphia County, which is adjacent to Montgomery County, Allegheny is the only other county in the state of that size. The State Supreme Court wasn't required to respect the defense team's wishes, Harris said, but in this case, they did.
When it comes to selection of the actual jury, it is common for potential jurors to argue it would be a hardship to be away from home or work for the duration of the trial.
“I think judges are much more reluctant to accept that than they used to be,” Harris said. “Nobody really wants a substantial burden like this but it is something that the county has a right to have people undertake. We’re all citizens, this is part of being a citizen.”
The trial is slated to start June 6.