Bill Cosby was convicted in 2018 (Photo by Montgomery County Correctional Facility via Getty Images)
A longstanding tenet of justice, in the US and elsewhere, is a maxim known as Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.”
Americans love this quote. Not just for its lyrical qualities, but for the way it feels to say it, like planting your very own little flag on the topmost point of the moral high ground. We love it for the principles it enshrines: justice, fairness, protection of the vulnerable from authoritarian overreach.
That is, until one of those theoretical guilty persons actually escapes, in real life, and all those pesky rights they’re entitled to suddenly become really inconvenient.
Bill Cosby is the latest case to put Americans’ principles to the test, after his 2018 conviction for aggravated indecent assault — a landmark moment in the #MeToo movement — was overturned this week on a legal technicality. In 2005, Cosby was sued in civil court by a woman who alleged that he’d drugged and assaulted her. (This was long before the reckoning with Cosby’s history of serial sexual abuse that began in 2014 and ultimately resulted in 60 women coming forward with allegations of their own.) At the time, there wasn’t enough evidence to bring a criminal case against Cosby — and district attorney Bruce Castor made an agreement with the comedian: if Cosby waived his constitutional rights against self-incrimination, and testified truthfully in the civil case, he would not be prosecuted in criminal court.
Cosby did testify, did incriminate himself and ended up settling the lawsuit for $3.4 million. And while it’s easy to argue in hindsight that Castor never should’ve made such a deal, at the time, this was the next-best thing to seeing justice served. With no hope of moving forward on a criminal prosecution, here, at least, was a way that Cosby could be made to suffer consequences for what he’d done (and for his victim to receive recompense for the pain she’d experienced). But in 2018, as the allegations against him piled up, a different prosecutor looked back at that case and decided to charge Cosby with criminal assault using his testimony from the civil case — and reneging on the promise made by Castor more than ten years before.
Even at the time, both the prosecutor and the judge in Cosby’s criminal case knew that they were violating his due process right, and creating possible grounds for acquittal, by failing to uphold the agreement. So the verdict this week, handed down by the Pennsylvania Supreme Court, is just a confirmation of what the law already implied: if one prosecutor makes a promise on behalf of the State, another prosecutor can’t come along and ignore it.
On the one hand, this is an enormous win for due process protections that puts important limits on how prosecutors can abuse their power. On the other, of course, it means that a rapist walks free (albeit after serving two years in prison).
And yet Cosby’s acquittal should still be welcomed — not just because it upholds an important principle, but because it sets a precedent for other cases, including those of sympathetic (or even innocent!) defendants who might otherwise have been railroaded by prosecutors.
For in reality, this is how it often works. As Andrew Fleischman, a defence attorney who works on behalf of wrongfully convicted clients in Georgia, told me: “Many of our most important rights come from people who suck.”
The Miranda warning, for instance — the one that starts “you have the right to remain silent” — stems from the case of Ernesto Miranda, who kidnapped and raped a teenage girl in 1963. Miranda was totally guilty of a heinous crime (and he was convicted again at a second trial, despite the exclusion of his illegally obtained confession). But in overturning his first conviction, the court created a vital protection for all Americans, including people who are young, poor or otherwise vulnerable to being manipulated by the cops into incriminating themselves. Now, every person placed under arrest must be verbally instructed that they have the right to shut up and ask for a lawyer.
Meanwhile, the law that protected Cosby also protects people with far less wealth or resources, in a system where the state already enjoys immense power to wreck the lives of people who get caught up in the criminal justice system. Fleischman notes, for instance, that it’s not unusual for people charged with a crime — even something minor like marijuana possession — to have their children taken away by the state (a process that prosecutors often trigger intentionally, so that they can leverage the possibility of being reunited with the child to convince distraught parents to cooperate.)
It’s not hard to imagine a nightmare scenario in which the prosecutor promises a parent immunity from prosecution, and a better chance at getting their child back, in exchange for truthful testimony at the parental rights hearing in civil court — and then reneges on the agreement, using that testimony to bring a criminal case. But now, thanks to the precedent set by Cosby’s case, prosecutors won’t just get smacked down on appeal for abusing their power in this way; they’re also less likely to try it to begin with.
If anyone should recognise the value of a due process victory, even for a terrible person like Bill Cosby, it’s American progressives (for whom criminal justice reform and decarceration is usually a central concern.) Instead, many are outraged over the acquittal. Partly this reflects a tendency on the Left to talk out of both sides of one’s mouth on the issue of crime, where decarceration and restorative justice is great, right up until it benefits someone we don’t like. (Take the aftermath of the January 6 insurrection, when the same people who’d downplayed crimes like looting and arson during the summer protests of 2020 suddenly developed a wild enthusiasm for throwing the book at lawbreakers.)
But it’s also a failure of imagination: even as many progressives would readily agree that our law enforcement officers have too much power and too little accountability, that too many people receive draconian punishments that don’t fit their crimes, or that innocent people get railroaded every day by overzealous prosecutors who just want to put someone in jail, they’re also sure, deep down, that the someone will always be someone else. Not them, or someone they love.
Probably, they’re right. But if they’re not, and if they’re unlucky enough to someday end up getting caught in the grinding machine of our criminal justice system, the due process and civil liberties that sometimes allow bad people to go unpunished might suddenly seem like a pretty good thing.
Kat Rosenfield is an UnHerd columnist and co-host of the Feminine Chaos podcast. Her latest novel is You Must Remember This.
katrosenfield 
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeInteresting. I wonder if the US justice system’s integrity can stand scrutiny of the Chauvin case? I’d say there are numerous counts to appeal on, but that no one will have the appetite for it.
Do you think the guilty verdict was wrong? I’d be interested to hear your reasoning.
More particularly – was the death of George Floyd a normal and acceptable (if unfortunate) part of how the system is supposed to work? If not – and if Chauvin did not do anything wrong – what would need to change to avoid repetitions?
What I ‘think’ is irrelevant. The subject at hand is ‘due process’, and none other than the judge in the Chauvin trial said that there are grounds for appeal. Like Maxine Waters inciting violence in the media. And even old doddering Biden ‘weighing in’ on what he thought the verdict ‘should’ be–a clear violation. The executive branch is not supposed to influence ongoing trials.
But, like I said, I doubt anyone will have the balls to push this pretty clear road to appeal.
Joe Biden ‘weighed in’ after the jury was sequestered. As such, his comments could not affect the Jury’s deliberation.
That is a technicality. The old dodderer should never utter something like that before the verdict was handed down. Notwithstanding Joe and his stupidity and regardless of the guilt or lack thereof, there was never going to be a not guilty verdict from a jury who would then fear for their lives.
There was a lot of pressure on that trial, no disagreement there, and that was, at best, rather unfortunate. Whether we think Chauvin did wrong is a separate question – but it is not irrelevant. I would like to hear your opinion: Is Chauvin (like Cosby) a criminal who should be let off the hook in order to protect the integrity of the justice system? Or is he a police officer doing his job the way it ought to be done, and the way we expect other police officers to keep doing it into the future?
Almost every pundit writing about the trial described the ‘extraordinary pressure’ the jury were under to deliver a guilty verdict. And everyone knew that if any not-guilty counts came in, there would be riots. Everyone knew that, including the jury. Whether Chauvin was guilty or not remains irrelevant. There was only ever going to be the one outcome.
You could be right there.
He is definitely right there. The question is who made sure it went down like that
Generalised pressure would probably do it.
But we should not forget that the system also has significant built-in pressure the other way – towards letting the police go free – at least if the US is anything like the UK. Police are working together in a hostile environment and are loyal to each other – to the point of making false statements (?), Prosecution is on the same team. The entire justice system prefers to deny wrongdoing from its members, as the less embarrassing option. Sensible people have to accept that mistakes are unavoidable, and that mistakes in violent arrests can sometimes be fatal. And many prefer to support their friends the police and see those who get hurt as criminal thugs. Note that I did not need to consider racism at all. You could argue that some degree of counterpressure might be necessary if you want certain things to change.
In the pre-Covid world, I’d say that was true. But, the US especially has demonstrated they have no problem at all hanging whole police departments out to dry.
It was a lynching
Neither.
Let’s hope that they will.
Well, for MY part, I do think the verdict was wrong, and I’m someone who wanted to hang Chauvin myself when the footage first came out. But Chauvin was using a hold the city police department had trained him and his colleagues to use, and when it went bad they threw him under a bus. George Floyd was a thug and a criminal who had pumped himself so full of drugs that he was dying before he was taken from the car. That’s what killed him, not the actions of Derek Chauvin. It should be apparent that the judge and jury were afraid of the mob if they brought in the wrong verdict.
I should have realized there was a cover-up the moment they fired the four officers concerned. Remember, this was within a day or so of the incident. In the UK, that simply could not happen. They might have been suspended pending possible criminal investigation, but you cannot be fired like that summarily, no matter how bad it initially looks. There HAS to be a formal enquiry and a chance for the person concerned to defend himself. That was the giveaway.
Interesting. I had not heard that version before, but it does check out – up to a point at least. Which would suggest that it was department policy that was at fault. rather than Chauvin. Or, if you prefer, that Chauvin had a record of being quite violent in his arrest techniques, and never being called down by the department for it. Either way, I would find it hard to accept that this was a normal and acceptable outcome when trying to arrest an unarmed man, or that there should be no consequences for anyone as a result. How would you call it?
If Floyd died because of the drugs in his system, then Chauvin’s record is of no relevance. And no, if Chauvin was behaving by the book, then there should be no consequences, except perhaps re-writing the book.
The jury seems to have found that the drugs in his system were not enough to kill him.
It is very noticeable that you say “except perhaps re-writing the book”. ‘Perhaps’? The question is: is this kind of death OK? If nobody is blamed and nobody is punished, odds are that nothing will change and people will keep dying the same way. If that is OK with you, you could try saying it openly – and see what kind of democratic mandate that will get you. I have thought similar things myself in the case of people who got killed resisting arrest while armed. If this kind of death is *not* OK, then either Chauvin, or his superiors or those who wrote the departmental policies need to face up to their responsibility and take some consequences.
I’m pretty ignorant of American law, so forgive me if this is a silly question: but how was it possible to bring charges of both manslaughter and murder, and have the jury convict on both charges? My understanding (which, as noted, isn’t wonderful in these affairs) is that murder must be intentional, whereas manslaughter is an act that results in an unplanned death.
I’m not well up on it myself, but the INTENTION to murder need not be deliberate purpose. It can be reckless indifference to fate of the victim rather than an actual desire to see him dead. Chauvin was found guilty of both second and third degree murder, plus manslaughter. The latter two charges are “lesser included” charges and, as far as I’m aware, none of these charges require intent in the way that most lay people understand the word.
Usually, American prosecutors throw in lesser included charges if they’re unsure the bigger charge will stick. It gives the jury an option. In this case, it’s very troubling the jury went guilty of second degree, because the definition of intent in that case under Minnesota law is causing death in the commission of a felony. If Chauvin was going by the book, where is the felony?
A quick look at Wikipedia gives second-degree murder as intentional but not premeditated, whereas involuntary manslaughter and (in Minnesota) third-degree murder are unintentionally causing death through recklessness, negligence, or disregard for human life. The lesser charges sound like they might well apply here.
So, are you arguing that Chauvin should have been convicted of third-degree murder or manslaughter instead? Or that he should have been acquitted altogether?
What kind of death? Did the drugs kill him or did Chauvin’s knee on his neck? Because they’re two very different kinds of death. I’m saying the jury chose to believe Chauvin’s actions killed Floyd because they were afraid of the mob’s reactions if they found any other way.
Inasmuch as death is the only certainty in life, then, if drugs killed Floyd, his death was acceptable, since he had chosen it for himself. If Chauvin’s actions killed Floyd, those actions were by the book. Accordingly, the ones to blame are the ones who wrote the book and Chauvin’s level of responsibility is far less than murder.
I have never seen a credible claim that Floyd would have died from drug overdose if he had just walked quietly home without police intervention (have you?). Would he have dies from the neck hold if he had been drug-free? Harder to say – it may be a combination. But I would argue that the police knows that many of the people they arrest may be on drugs or otherwise have health problems. They should set their policies (and choose their actions) accordingly.
Anyway, Chauvin knelt on Floyds neck for around ten minutes, wasn’t it, including seveal minutes after Flioyd was dead. If that is really what departmental policy recommends sure, you cannot blame Chauvin. But in that case, whoever wrote and signed that policy would surely deserve to be fired immediately.
Add in the intervention of the State’s Attorney General. “Hang him, hang him now.”
“Do you think the guilty verdict was wrong?”
Well there were three verdicts not one: second degree murder, third degree murder and second degree manslaughter. The most serious charge, the second-degree murder, is not correct in my own view, not that my opinion counts for anything of course.
I have not followed this closely. But from the little I know, let us say it would at least not shock me if he was / had been acquitted on second degree murder and convicted on the two other counts.
I often find American law quite confusing. Not least because Kim Kardashian is studying to become a lawyer, yet seems to spend most of her time on holiday, going out or shopping. Surely that indicates that American law is very simple? Ah well, at least this article is clearly articulated. Thank you.
Good article, well reasoned and argued. The left has no respect for law as a thing in itself. It is only a stick to beat people they don’t like with.
Brilliant article. I read part of this aloud, yes, over toast and coffee. This is why I subscribe to Unherd, seriously.
Excellent piece. Cosby deserves no sympathy but upholding due process, which is under assault daily, is more important than the housing situation for the remainder of this pitiful man’s life.
I agree that it was right that he be freed. The whole proceeding was unsound and rife with politicised conflicts of interest. There was no attempt to get to the truth, whatever it was.
It was right that he be freed, yes. Whether he ‘deserved‘ it, as the headline says, is not quite the same thing. But as for the truth, he did admit to buying Quaalude and administering it to his bedmates, and about sixty of them did accuse him, afterwards. That is a pretty strong pointer to what the truth is likely to be.
The numbers of accusers makes me more suspicious. They only popped up once a relatively well-known person made an accusation. They had nothing to say beforehand and their claims had never been investigated (the judge allowing some of them to give evidence without being legally-formal complainants being one of the things that made the trial unsound).
Once Jimmy Saville’s nasty doings were finally being properly investigated, it took several years (about 3 if I remember rightly) for the final report – because the investigation had more than 250 bogus claims to deal with.
Some people can’t see a passing bandwagon without leaping on, some were delusional fantasists, some were trying to place themselves amidst drama and some were chancers hoping for a crack at any compensation that might be up for grabs.
I don’t claim that Cosby is innocent of wrong-doing, but unusually large numbers of after-the-fact accusers is no guide to guilt in and of itself.
There is an element of heads-I-win-tails-you-lose about this. With no extra accusations, historical sexual assault claims are unprovable – it is one person’s word against another’s. It is only when many people report similar experiences that you can get sure enough to convict. If you think that is suspicious in itself, no case like this will ever lead to conviction. Sure, there are opportunists and fantasists around, and you need to screen the accusations critically, but the more you get, the more likely some are real, no?
A senator accused of sexual harassment supposed explained by saying “Like many traffic accidents, it is a question of perception”. The interviewer answered: “Excuse me, senator, but if you are involved in twenty car accidents, there is something wrong with the way you drive”.
Just because some ‘accusers’ are bogus doesn’t mean people are jumping on the bandwagon. I saw some of the Savile victims recount what happened to them and have no doubt whatsoever of their honesty. My experience is that young women in the mid to end of the 20th century were terrified of being thought ‘slags’ or whatever, and of their parents’ disapproval, even if they were innocent victims. After a serious attack on me by a stranger – which was only prevented from ending in my possible death by police arriving (someone heard me screaming), I was eventually brought home to my mother- whose first words were: “I suppose it will be in the paper now” (it was, I was anonymised, he got 4 years).
Will progressives rally behind Cosby the same way they did for OJ?
Bringing Cosby to trial was punishment enough. As with many he was imperfect and had an ugly side. The trial was adequate to air his accusers’ complaints which did deserve publicity. The same humiliation he inflicted he then received. The technicality was known before the trial began, I doubt any surprised at the reversal. Justice has been served.
You’re happy with the process being the punishment? He spent two years in prison! A man without his wealth would no doubt still be in there, begging for his deal with a prosecutor to be read.
Regardless of Cosby’s character and history, this trial was a Kafkaesque attempt to bludgeon a man with the law – a man they could not prove guilty. What are those men called? Ah yes. Innocent men.
Does Cosby’s acquittal mean it is now impossible for him to be re-tried in the other 49 states, or is the ruling a federal one?
He cannot be retried for the same crime, which was a crime under Pennsylvania law, over which the other states and the Federal government have no jurisdiction. Were it the case that the same misdeed was also a crime under Federal law (which it is not), I believe there is a recent precedent that would allow that crime could be prosecuted in Federal court without running afoul of the Constitutional prohibition on double jeopardy.
A very relevant prohibition as Double Jeopardy protects the individual from a vengeful state. Sadly, one of our most emotional UK cases saw that protection watered down in the UK, so determined were the authorities to see a group imprisoned, with or without evidence.
It’s a reminder that these incredibly hard won protections – innocent until proven guilty, habeas corpus, double jeopardy, right to remain silent – these underpinnings of individual rights can all be undone, piece by piece.
The header asks the question “Did Bill Cosby deserve to go free”, but the subsequent article then fails to answer the question by instead proving something else, namely that the rest of us deserved for Bill Cosby to go free. And we do deserve it, in the sense that it is one of the most important principles that ensure that the law keeps us safe as opposed to becoming something from which we need to be kept safe.
But does Cosby himself deserve to be free? Well no, not in the realm of what’s morally right, instead of what is possible in the checks-and-balances world we must all accept. For this to be true we have to believe that not all those women who have “come forward” are liars – even if only one of them is telling the truth then Cosby is guilty (and they’re not lying anyway).
But here’s the thing: this is what shows why the law can’t be a lottery in this way. Cosby can’t stay in jail on a balance of probabilities no matter how overwhelming they may be: his conviction must rest upon a specific charge, or series of them, that a court can conclude are true beyond reasonable doubt according to the standards of proof in criminal justice.
In short, it’s shit but it’s better than the alternative.
You express the point very well.
By some accounts Mr. Cosby was released on more than merely the point mentioned in this article. The judge declared egregious Prosecutorial misconduct.
Great article but I don’t see how a system to pursue justice is fit for purpose if it can’t allow for specific circumstances in which justice is preferred over preservation of process. If some idiot prosecutor offered a tax evader immunity for all other crimes, then later the evader was found to be a serial killer, then the interests of justice supercede the interests of process.