Montgomery County Clerk of Courts Received 4/6/2018 3:20 PM

Montgomery County Clerk of Courts Filed 4/6/2018 3:20 PM

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY,

PENNSYLVANIA – CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : NO. CP-46-CR-0003932-2016

:
v. :
:
WILLIAM H. COSBY, JR. :

DEFENDANT’S MOTION, AND INCORPORATED MEMORANDUM OF LAW IN

SUPPORT THEREOF, TO EXCUSE JUROR FOR CAUSE AND
FOR QUESTIONING OF JURORS

Mr. Cosby respectfully moves to strike a juror for cause and to question seated jurors

based on recently obtained information regarding the juror’s expression to other prospective

jurors of a fixed opinion and possibly false statements during voir dire. It has recently come to

the attention of defense counsel that a juror seated in this case, Seated Juror #11 (known

previously as Prospective Juror #93 of Venire Panel #2), made at least one comment to another

prospective juror during jury selection indicating that he may hold a fixed opinion as to Mr.

Cosby’s guilt for the crimes charged. (See attached Declarations of Priscilla Horvath, Richard L.

Beasley and Prospective Juror #9 of Venire Panel #2.) In light of this information, the defense

submits the following memorandum of law in support of its request that the Court strike this

seated juror for cause, or at a minimum conduct further voir dire of the juror to determine

whether this juror can be fair and impartial and whether he previously made false statements

during voir dire. In addition, defense counsel requests that this Court conduct additional voir

dire of the other seated jurors who were present for the juror’s comment, to determine whether

any other juror was influenced by the comment.

DISCUSSION

Pennsylvania Rules of Criminal Procedure Rule 631(F)(1)(b) states that “[w]ithout

declaring a mistrial, a judge may allow a challenge for cause at any time before the jury begins to
deliberate, provided sufficient alternates have been selected ….” Pa. R. Crim. P. 631(F)(1)(b).

“A challenge for cause to service by a prospective juror should be sustained and that juror

excused where that juror demonstrates through his conduct and answers a likelihood of

prejudice.” Commonwealth v. Ingber, 531 A.2d 1101, 1102-03 (Pa. 1987); Commonwealth v.

Lesko, 15 A.3d 345, 413 (Pa. 2011). “The test for determining whether a prospective juror

should be disqualified is as follows: whether he is willing and able to eliminate the influence of

any scruples and render a verdict according to the evidence, and this is to be determined on the

basis of answers to questions and demeanor.... It must be determined whether any biases or

prejudices can be put aside on proper instruction of the court.” Lesko, 15 A.3d at 413. When

there are indications of fixed opinions of guilt by veniremen or selected jurors, voir dire

examination is the proper occasion to develop the facts. See Commonwealth v. Martin, 348 A.2d

391, 398-99 (Pa. 1975).

When, after a jury has been selected, it has come to the Court’s attention that selected

jurors made false or otherwise troubling statements in voir dire and may have formed a fixed

opinion on the outcome of the case, it is within the Court’s discretion to grant a motion to

dismiss such a juror for cause. In exercising such discretion, courts have questioned the

necessary jurors and allowed counsel the opportunity to do so as well. See, e.g., Commonwealth

v. English, 667 A.2d 1123, 1126-27 (Pa. Super. 1995); Commonwealth v. Hetzel, 822 A.2d 747,

755-56 (Pa. Super 2003).

In Commonwealth v. Kirkpatrick, for example, the Pennsylvania Superior Court found

that the trial court abused its discretion in refusing to at least voir dire jurors seated for the trial

of co-defendant to determine if they had been improperly influenced after it had been reported

that a co-defendant had pled guilty. 386 A.2d 602, 603 (Pa. Super. 1978). “Even though the

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news broadcast was clearly based on factual material, the import of the knowledge that a co-

defendant had already pled guilty, and been sentenced for the same crime is highly prejudicial….

This is clearly the kind of prejudice which a defendant could not protect himself against at trial.”

Id. at 603.

Moreover, in Hetzel, the Pennsylvania Superior Court upheld the mid-trial dismissal of a

seated juror for cause. Commonwealth v. Hetzel, 822 A.2d 747, 755-56 (Pa. Super. 2003).

There, a seated juror was contacted by a relative mid-trial and told that the relative’s husband

worked for the father of one of the defendants. Id. at 755. The juror told the relative that he

could not talk about the trial. Id. Both the court and defense counsel questioned the juror about

the interaction. Id. Even though the juror assured the court that he could be fair and impartial,

other indicia suggested to the court that the juror could not be fair and impartial. Id. at 756.

Accordingly, the Superior Court upheld the trial court’s dismissal of the juror mid-trial. Id.

Here, Seated Juror #11’s statements indicate that he has formed a fixed opinion about Mr.

Cosby’s guilt in this case. The defense contends that this is sufficient to strike Seated Juror #11

for cause. If this Court is not inclined to strike Seated Juror #11 for cause, the defense requests

that the Court question, and permit counsel to question, Seated Juror #11 further to explore

whether he has formed a fixed opinion regarding the guilt of Mr. Cosby and whether Seated

Juror #11 expressed any such opinion to other prospective jurors. Further, the Court should

explore and make a determination whether Seated Juror #11 was untruthful in his answers to the

jury questionnaire and/or in his sworn testimony during voir dire, Williams v. Taylor, 529 U.S.

420, 440-41 (2000) (finding an evidentiary hearing necessary on collateral review after

defendant developed evidence that showed that juror had offered deceptive answers to two voir

dire questions during jury selection). Finally, the defense requests that the Court question the

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other seated jurors to determine whether they heard such a comment from Seated Juror #11 and

whether they can in fact be fair and impartial.

Dated: April 6, 2018 Respectfully submitted,

By: /s/ Lane L. Vines

Lane L. Vines (Pa. Bar No. 80854)
BERGER & MONTAGUE, P.C.
1622 Locust St.
Philadelphia, PA 19103
Tel.: 215-875-4658

Thomas Mesereau, Jr. (pro hac vice)

MESEREAU LAW GROUP
10100 Santa Monica Blvd., Suite 300
Los Angeles, CA 90067
Tel.: 310-651-9960

Kathleen Bliss (pro hac vice)

Jason Hicks (pro hac vice)
KATHLEEN BLISS LAW PLLC
1070 W. Horizon Ridge Pkwy., Suite 202
Henderson, NV 89012
Tel.: 702-463-9074

Becky S. James (pro hac vice)

Jaya C. Gupta (pro hac vice)
Rachael A. Robinson (pro hac vice)
GREENBERG GROSS LLP
601 S. Figueroa St., 30th Floor
Los Angeles, CA 90017
Tel.: 213-334-7060

Attorneys for Defendant William H. Cosby, Jr.

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 PUBLIC ACCESS POLICY CERTIFICATION

I, Lane L. Vines, certify that this filing complies with the provisions of the Public Access

Policy of the Uniform Judicial Systems of Pennsylvania: Case Records of the Appellate and Trial

Courts that require filing confidential information and documents differently than non-confidential

information and documents.

Dated: April 6, 2018 /s/ Lane L. Vines

Lane L. Vines