As the resident Roots of Liberty writer on legal dysfunction, I find the latest Bill Cosby boot to be my bailiwick. It is all but certain that Bill Cosby is an abuser of women, and needs to be punished, yet the state of Pennsylvania failed to serve Cosby’s victims by prosecuting his case competently. This failure was compounded when the State violated the basic rights that have protected Americans for three centuries. This will play into our legal system’s falling reputation, which was part of last spring’s nationwide protest and widespread riots. They were also about perceptions of persistent dysfunction.
Here is the basic framework of the failure: Bill Cosby entered into an immunity agreement and he waived his Fifth Amendment protection as part of an overlapping civil proceeding. A subsequent prosecutor chose to believe that he was not bound by his predecessor’s deal and used the evidence gained in the civil proceeding against Cosby, criminally. No legal textbook has to be brought down off a shelf for checking up on this. It is a legal principle basic to western liberalism. The Fifth Amendment protection against self-incrimination is so important that it gets its own part of the Bill of Rights.
Then there are the practical implications: for all of America’s technical legal bloat, the vast majority of the system’s operations depends on bargaining, and who would bargain away today what could be used against them tomorrow? Our whole legal system would collapse overnight without that expedient.
The fact that so many Americans are dismissing this case as mere and more legal trickery, as a knee-jerk deep-tendon reflex, speaks volumes on how much that all-important public perception has been eroded. A disturbing number of my friends and family could not believe that a man of Cosby’s means, who could summon such legal firepower, would ever see stir, at all. We libertarians see justice as another commodity: you can have a small amount of high quality justice, or a large amount of low quality justice, since legal actions are so costly (reforms would make them less so). And low quality justice does not make a free and fair country. This sort of compromising (in that which should be uncompromising), explains the George Floyd protest-rage just as well. The perception is that we have a legal system that has evolved to process cases, factory-like. And they have to be, since the cases are mostly related to the factory of the drug trade.
It is likely that prosecutors are so accustomed to the soft targets they grind out en masse, that they don’t gain the expertise they need to take down a hard target (OJ Simpson; Robert Blake; Harvey Weinstein… ad nauseam). But then comes the awful contradiction: a functional legal system, the one that Americans believe they have for everyone, is for those who can afford it. The legal system, in its grinding mode, bullies those without the means to fight back, because of all of the compromises we have made with the system over the last generation (plus) in order to do things no legal system has ever been able to do (manage, with the presumption of criminal motives, intertwined mental illness and drug addiction). We incarcerate vast numbers of people, more people than the rest of the Western world combined (throw in China and Russia, too) but we seem totally unable to apply the laws to people with resources enough to challenge the grind. Just as we seem unable to apply the law to the lawmakers, themselves. Scandals of political lawlessness have been covered in these pages dozens, and dozens of times. Pennsylvania’s failure to prosecute what seems obvious lawbreaking, as well as sloth in coping with their agents’ incompetent threats to constitutional bedrock, proves both arguments.
The Cosby case is an onion of layers of lawmaker lawlessness: how in the ever-loving hell can a judge have allowed this to have happened? Why did a mistake, on an issue of constitutional bedrock, take 2 years to resolve? The mistake should have been obvious the moment the appeal paperwork was filed. “Justice delayed is justice denied,” is a common legal argument, while the right to a quick and speedy trial is just as much bedrock. But, as I write this, the SCOTUS is just finishing a case involving the pandemic eviction moratorium, which was never decided by the legislative, nor the judicial powers of our system, but by a tiny group of unelected health officials… some sixteen months after the fact (and would landlords have to be made whole, if the measure – I will not stoop to call it a law – is overturned?).
Another good question is: Why did it cost Bill Cosby so much money to force a legal issue of such shimmering clarity? Obviously, had he not been a man of means he would still be at the bottom of a hole, but why should it take such resources to address a principle obvious to anyone who can read on a 4th grade level?
It looks like Cosby will be entitled to damages from state misconduct. Which brings up another vector of our system’s constant failure: the damages of these individuals’ mistakes will be paid by whom? It will not be the makers of the mess. Like the Mayor of Seattle, who served her city up to a baying mob on a silver platter. Her posture of “ending qualified immunity” will not apply to her being held personally responsible for gross negligence (I’ll post a blog piece when that is adjudicated, 25 years from now). In the Cosby kerfuffle taxpayers will be liable for things they have no way to control: holding court officers accountable is even more rare than with the police.
The Bill Cosby screw up seemed to have come from political pressure on the prosecution. This kind of thing is bound to happen when mass political yearnings are channeled into a legal system designed to apply the law narrowly and specifically (“#MeToo,” BLM). So, continued failure of the legal system will be interpreted as a symptom of national misogyny. With the result that the legal dysfunction that needs reforming and addressing, is channeled into our equally dysfunctional political system.
As we see so often: “nobody is above the law” is for thee, not for me (in the most aggressive legal system the planet has ever seen). Jail is for the poor, constitutional protections are for those who have the means to make them apply. And even then…
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