Former member Jessica Joan gave an impassioned victim statement during the proceedings, in which she described Mack as “a demon of a woman” who had groomed her to be a “sex slave.” “Allison Mack is the most evil monster I’ve ever met,” she said. “She sought me out like a predator stalking their prey.”
So, stop pulling your punches there, Jessica, and say what’s on your mind.
There is a story about Oliver Wendell Holmes and Judge Learned Hand, perhaps the most influential judge never to serve on the Supreme Court. It is said they had lunch together and afterward, as Holmes headed off to the Supreme Court in his carriage, Hand spontaneously ran after him and yelled, “Do justice, sir, do justice!” Holmes instructed the driver to stop, and he turned back to Hand and said: “That is not my job. It is my job to apply the law.” There can often be conflict between what many people see as “justice” and what a fair reading of the law requires. That conflict can become all out war when comparing social justice to the law. It’s an interesting coincidence that Allison Mack will probably serve roughly as many years as Bill Cosby. In law school, I worked in a legal clinic assisting inmates at a women’s prison. The vast majority of inmates I dealt with were there because of some man in their life. Mack may well have been coerced by Raniere and did eventually cooperate against him and thus might have deserved the relatively light sentence for her crimes. Cosby “deserved” to spend the rest of his life in prison. But he never should have been prosecuted.
Both statements can be true. Cosby allegedly sexually assaulted more than 50 women and there is little doubt he was guilty of most if not all of the alleged crimes. But our system of justice requires that criminal prosecutions both follow the law and respect constitutional rights. The district attorney at the time of Constand’s assault testified he issued a public statement that Cosby wouldn’t be prosecuted in order to prevent Cosby from pleading the 5th in a civil deposition if/when Constand sued him. He testified that is what he told Cosby’s lawyers. Cosby testified and made incriminating statements. A subsequent DA not only prosecuted, but used his deposition against him. The trial court found that the original DA never followed all the statutorily required steps necessary for a formal grant of immunity and thus it was unreasonable for Cosby to have relied on the DA’s press release and the legal opinion the DA gave Cosby’s lawyer. While I think Cosby was poorly served by his civil attorneys, it is ridiculous to say it was unreasonable for him to rely on that DA’s opinion. Both justice and the law require that prosecutors not be allowed to trick a defendant into giving up their 5th Amendment rights. Instead I think the trial court was too focused on social justice for Cosby’s victims. But as Oliver Wendell Holmes might say if he were around today: that was not the court’s job. It was the court’s job to apply the law.
I was a fan of Smallville and liked the character portrayed by Allison Mack. But I was a huge fan and had tremendous respect for Bill Cosby. His legacy was important and valuable. The Cosby Show portrayed an upper middle-class African-American family demonstrating how far we had come as a country and the changing attitudes of the American people. But equally important were what Cosby did to help educate children with the Fat Albert show and other projects. I also think his messages to African-American youth about how to succeed in life, though controversial, were helpful. While the lives he destroyed are the biggest tragedy, the legacy he destroyed was almost as bad. He won’t die in prison, but if it exists he will most likely (deservedly) rot in hell.
It is a mark of how my respect for Michael McChesney has grown that where I once would have stopped reading when he said Cosby “never should have been prosecuted” that I kept on going and found out he actually had a reasonable point, The only thing I can say is that legal and moral arguments like that are above my pay grade, and I will leave them to deeper thinkers than I, like MMc and UncleScoopy.
My family had Bill Cosby LPs when I was a child, and I loved them. He was a great comedian. But he turned out to be other things too, which is always possible with people. He is his own tragedy.
Thank you Roger.
I often jokingly refer to myself as a “recovering lawyer” since it has been almost 20 years since I practiced. But I still think like a lawyer. Some of the talking heads discussing the Cosby decision have said he was released on a technicality. Well two technicalities I suppose because the PA Supreme Court had two separate reasons for overturning Cosby’s conviction. The first was because of the prior DA’s promise not to prosecute but the second was because he court said Cosby’s other accusers shouldn’t have been allowed to testify. Prosecutors are not allowed to present evidence of a defendant’s bad character as evidence they are guilty of the charged crime. The other women’s testimony was offered as “pattern and practice” evidence. Here is evidence of crimes committed in the past that were extremely similar to the crime charged. In Cosby’s case, the argument was in part that because he drugged and assaulted these other women, Cosby couldn’t claim he didn’t realize Constand was impaired. But the PA Supreme Court held that the accusations of the women who testified were not similar enough to Constand’s accusations and were too remote in time and their testimony should not have been admitted.
The thing is that I don’t see either reason for overturning the conviction as just technicalities. The reason most people believe Cosby is guilty is because nearly 60 women have come forward to accuse him. We believe Cosby is guilty because we have so much evidence he is a bad guy. But the courts have held the Due Process Clause means that kind of evidence is inadmissible because it is fundamentally unfair to a defendant. You can disagree about how unfair such evidence would be and think it should be admitted. But anything an appellate court finds was fundamentally unfair in my opinion goes well beyond a technicality. But that’s my opinion after 3 years of law school. I also believe that police officers accused of crimes are entitled to all the same rights and presumptions of innocence as all other criminal defendants. That is a somewhat controversial opinion in some quarters. Finally (for now) while I care about the policy outcomes of Supreme Court decisions, I really care more about how the Court reached its decision. There have been decisions I strongly disagreed with even though I supported the policy outcome and vice-versa. But I think most non lawyers only care about the outcome.
It is, of course, deeply unsatisfying that Cosby is guilty beyond any real doubt but has been freed. I agree that rights must not be violated to gain an end, and that it is very important not to do so. In the end, Cosby still stands revealed as a serial rapist. That will have to be enough for the public.
Irrelevantly, I still feel sorry for Cosby about the murder of son.
I was talking with my sister earlier this evening and we talked about the difficulty sex assault victims sometimes have being believed. Police officers that try to get victims to recant without compelling evidence they are lying are almost as bad as the sex offenders themselves. While working in that prison clinic I had an inmate come to see me to report being raped by a guard at the federal transfer facility in Oklahoma City. She told me that she had reported what happened to her unit manager when she arrived at Alderson. She wanted to make sure her complaint was being investigated. Before she left, she told me that she had been dreading coming and talking about what happened but that I had turned out to be very easy to talk to. I considered that a high compliment. As it happened, I was aware of a different inmate that had made a similar complaint against a guard at that same facility so I might have been predisposed to find her credible. But I would like to think I would have treated her exactly the same way if I had doubts. Unfortunately, inmates are not always the most trustworthy people. I remember being warned at my orientation, “the inmates are here for a reason.” During my year with the clinic several inmates tried to perpetrate scams on us. But that is probably what that piece of crap guard was counting on. The situation some of those women found themselves in was enough to make you cry. My professor reached out to a friend in the Justice Department to ensure a real investigation of the Oklahoma City facility.
Victims should be believed unless there is a VERY good reason to doubt them. But an allegation alone is not enough to convict someone. That’s the conflict between justice and social justice. Even rapists are entitled to due process and that means too many offenders go free. But I don’t know what changes we could make that would improve things instead of making them worse.
This is a perfect illustration of what you were saying in an earlier thread about law versus justice. Releasing Cosby seems like the right thing legally, even though he is, to cite the jury foreman in The Producers, “incredibly guilty.”
But if we commit to the rule of law, we have to understand that the correct administration of that law does not always produce a result we endorse, or even one we prefer to live with.
You know what? I WISH that Supreme Court justices really thought like that.
I once worked for the most powerful executive in one of America’s largest employers. As his head of strategic planning, my job in theory was to assemble the facts and options that would help him make his decisions. That was just theory. In reality, he spelled out my real job for me, “You aren’t here to help me decide what to think. You’re here to tell me WHY I think it.” Of course when we spoke privately I still tried to give him the objective facts that would steer him in the right direction, but ultimately I was just his apologist. He determined his position before seeing the facts, and I had to come up with a selective set of arguments supporting his position, whatever it might be, so that he could justify the decision he started with.
My guess is that that job of mine was like clerking for a Supreme Court justice. They know they are going to vote for or against abortion, for example, and my job would be to come up with a reasonable justification for that position based upon a selective reading of the Constitution and precedent.
There have been exceptions, of course, like Souter, honest people who burned the midnight oil studying the laws, precedents and Constitutional arguments that might apply to a given case, then rendered a decision which might rule against their own beliefs if a fair application of the law required them to do so. It is my opinion that Diogenes would be blinded by his lantern before he could find those exceptional individuals.
These are the questions that the senators should ask every nominee for the court:
“Could you rule against your own deeply-held moral conviction if the law required you to do so?”
“If such a case presented itself, would you rule with the law, rule with your moral conviction, or recuse yourself for bias?”
Based on your anecdote, I think I know how Oliver Wendell Holmes would answer. He realized that justice and the law are not synonymous. He seems to have realized that an individual’s notion of morality or ethics could be subverted by following the law, but that he was a judge, not a philosopher, and would occasionally have to hold his nose when rendering a correct legal decision. I just don’t see much of that from today’s court, which is why we have liberal judges and conservative judges rather than just plain old judges.
(My apologies should be extended to Chief Justice Roberts, who is at least a partial exception. Some of his legal reasoning baffles me, but I very much admire the fact that it seems to be based on his interpretation of the merits of individual cases and the arguments before him, rather than on his own biases, and that he seems to guide the court toward narrow rulings based upon sturdy foundations rather than toward earth-shattering, all-encompassing and highly controversial new precedents.)
Scoopy, I’m afraid I have to disagree with you on a few points. Just because it is easy to predict how a certain Justice or Justices may vote in a certain case doesn’t mean they aren’t putting in the work of analyzing the facts and the law. A conservative justice will probably say they want to apply the law/constitution as written. If that justice votes against abortion rights did they vote that way because they are Catholic and opposed on moral grounds? Or was it because they reject the idea of finding a constitutional right in the “penumbras and emanations” of the bill of rights? Perhaps the only way to answer that question is to analyze their decisions to see if they vote against other rights without firm foundations in the constitution or federal statutes. I saw a video where Justice Scalia was asked if he allowed his personal preferences to affect his decisions. He said the best example showing he didn’t was the flag burning case where the Court found a 1st Amendment right to burn the American flag. He said he hated that outcome, but he felt that was what the 1st Amendment required. That said justices are human beings and can’t help but have some bias that affects at least some their decisions. In my opinion the best justices do their best not to let them.
I really have to disagree with your characterization of Chief Justice Roberts. If you are going by whether or not you can predict how he will rule, he is definitely a swing vote. But I don’t think that’s because he is following the law wherever it leads him. Roberts has a relatively conservative judicial philosophy, but he is demonstrated he will abandon it for political reasons. Take the first Obamacare case. He was clearly unwilling to hold that the Federal Government had the power to force people to buy insurance. But equally clearly he DID NOT want to find the ACA unconstitutional. So he twisted himself into a pretzel trying to save it. President Obama had been clear the mandate was not a tax. The government never argued the mandate was a tax. But Roberts ruled it was a tax. I am not criticizing his opinion because I was opposed to the ACA. It’s just I don’t know if I ever seen a clearer instance of a Justice deciding how he would rule before inventing a justification. I understand it why he ruled that way. He feels he has an institutional responsibility to protect the Supreme Court. But he doesn’t always rule based on his best sincere understanding of the law.
Oh as for your boss that wanted you to come up with reasons for his decisions after the fact, that reminds me of a deposition I took once. We were representing a man that had founded a company that designed and sold inventory management systems for a specific industry. There were only 2 companies in that market and a fortune 50 company purchased our client’s company less than 2 years after they had purchased the other company. Our client sued over an alleged violation of his employment contract as well as a cause of action related to antitrust. I was originally hired to review the approximately 80,000 documents they had produced in discovery. I found one document from a VP that said the acquisition “would allow us to monopolize the industry in an expeditious and timely manner.” That was an exciting find. We deposed that VP and asked why she had written that. She said that she had actually been opposed to the acquisition but her boss had told her to write a memo in favor of it and she talked about monopolizing the industry because she couldn’t think of enough other reasons in favor. That was a very expensive memo considering they had to pay a massive fine to the FTC and divest themselves of the company. That doesn’t even count any settlement that may or may not have been reached with our client.
As you may guess, I pretty much disagree with everything you say. It seems to me to be a naive view of human nature.
My answer to you well-reasoned analysis is simple. I will believe you when a devout Christian, one who truly believes that abortion is murder, defends the right to an abortion or recuses himself/herself from the case.
Sure, they can come up with some legal reasoning to defend any position, but the question is whether that reasoning was established before or after they decided their position. You are obviously not as cynical as I am about human nature, but my position is this:
There are arguments for or against abortion rights.
Judges without deeply held religious convictions on the matter are probably split fairly evenly on the legal reasoning, given reasonable objectivity.
But I assume that those who truly believe that abortion is murder are not split fairly evenly. I am assuming that those who hold that belief seek only the arguments that support their position, what psychologists call “motivated thinking.”
The Scalia flag-burning example is insignificant. Burn a piece of cloth or not. Nobody is hurt either way, no matter your distaste for “bearded wierdos.” There is no moral consequence in defending somebody’s right to burn a flag. It’s merely symbolism, the same as giving Joe Biden the finger. On the other hand, defending what one considers to be murder (as devout Christians view abortion), if that is the law of the land, truly tests one’s objectivity.
I consider Scalia to be the absolute master of “motivated thinking” – so very talented at supporting the decisions he had almost certainly pre-judged. Intelligent guys are often the worst offenders when it comes to believing in their own objectivity.
Remember that Scalia, although a superior student and highly intelligent in his use of argumentation, was nearly illiterate and innumerate when it came to math and science. He wrote ridiculous non-judicial arguments in desperate attempts to support his personal beliefs that were contradicted by evidence – he came up with bizarre extra-judicial arguments to support creationism and the death penalty and to object to gay people raising children – and even to question DNA evidence.
As you might guess, I also have problems with textual originalism for many reasons, not the least of which being that judges are simply not trained in linguistics and etymology. They are not any more schooled in these subjects than Scalia was in math and science. Should they be? It is a very difficult task even for the best scholars to determine what words meant when they were written, as you may have noticed in my recent discussion with JJH about Schopenhauer’s (and his translator’s) use of “trivial.” Sometimes even a year or two can make a radical difference in the meaning of a word in its original context. Consider the phrase “bad rags” in 1971 versus 1973. One meant “disposable or useless garments or other pieces of cloth,” while the other meant “really stylish clothing.”
I think you can even argue that Scalia’s famous flag-burning decision, which he was so proud of citing, was inconsistent with his own theory of textual originalism. The first amendment does not specifically defend non-verbal forms of protest. It was he, not the framers of the Constitution, who decided that flag-burning was a form of speech – it was a case where he applied common sense rather than the textual originalism he was wont to champion – precisely the sort of thing he chided his colleagues about. He was right in that case, of course. Common sense is a good thing. But this came from the guy who was so proud of declaring a case to be properly settled because he consulted a dictionary to determine that a burrito was not a sandwich. I notice he never considered using a dictionary to determine the meaning of the word “speech.”
Motivated thinking.
Well, thanks, U.S. Spot on. You beat me to the punch.
Scalia’s acolyte Alito just now wrote the voting rights opinion. In it he flat out invents a battery of principles that cannot be read into the Act or any existing law. It’s exactly the kind of decision Scalia wagged his finger at as “judicial activism”, ie, legislating from the bench. More, to merely call these bastards out for their “hypocrisy” is to look the other way to the far worse wrong that their ulterior & underlying motives truly represent. They believe in manipulating which citizens get to vote, as a legitimate machination of a democracy, or whatever else it is they actually believe our form of government is & should be.
In many ways, abortion rights are probably a bad example to cite when contrasting judicial philosophies with personal moral/religious beliefs. My personal opinion is that Roe v Wade is the second worst decision of the Supreme Court after Dred Scott, but not because of the morality of abortion or slavery. Dred Scott was an attempt by the Chief Justice Taney to settle once and for all the most contentious issue in the history of the United States. There was no basis in the Constitution for its holdings that Congress had no power to regulate slavery in the territories or that African-Americans could not be citizens of the U.S. By precluding any further political compromises it led pretty directly to the Civil War. Prior to Roe, abortion was a contentious issue but political compromises were being reached and abortion rights were being protected at least in the more liberal states. Justice Blackman’s decision attempted to remove the issue from state control and settle it once and for all. That didn’t work out so well, though at least judicial confirmations are slightly less violent than the Civil war. There is almost no legal discussion in his opinion. Instead, the former general counsel of the Mayo Clinic primarily wrote a medical discussion. I am aware of pro-choice legal scholars that think Roe was wrongly decided and/or was a terribly reasoned decision. But I am not aware of any pro-life defenders of Roe’s reasoning. Even most scholars that defend Roe argue that it is an important precedent that shouldn’t be overturned rather than defending it on the merits.
Is my opinion of Roe completely independent of my pro-life beliefs? Probably not. I was raised Catholic and grew up believing abortion was murder. That upbringing affected me strongly enough I remained pro-life even after coming to the decision at age 16 I didn’t have enough evidence to believe in God. I am not going to get into the reasons I am still pro-life because while I think those reasons are valid I will acknowledge they are at least in part a rationalization. But in part because I do acknowledge that, I believe I would still be opposed to Roe even if I weren’t pro-life. I am a strong believer in the free exercise of religion even though I no longer have a religion of my own.
Maybe I am too naive and not cynical enough. Though to be honest, I can hardly stand to listen to even politicians I agree with anymore because it seems all they do is recite buzz words without any actual deep understanding of the issues. At least when I read Supreme Court opinions, I believe the Justices generally understand the issues they are discussing.
Legal scholarship is not my field, but my view as a layman is that the legal niceties of the Roe vs Wade decision are nothing but red herrings that pro-choice people fish up when they have nothing else to cling to. Unless there is some non-religious reason to ban abortions, any law forbidding them seems to me to violate the establishment clause. And from a secular standpoint, I think any social scientist worth his salt would argue that unwanted babies have a deleterious effect on society.
How do you personally justify anti-abortion laws without resorting to religious belief?
Also, I’m curious how supposed originalists can justify anti-abortion laws when the founders clearly had no such intentions. Weren’t abortions legal when the Constitution was ratified and for the first 80-some years of the country’s existence?
I too picked Mack’s sentencing as my top story today. Followed by Cosby freed, then Rummy dead.
But there’s another tempest in a teapot over 1619. The prof instigating it, having won the PR war, got her tenure. Not that racism isn’t a valid lens to see history thru. It’s just not the only one. MattY, one of these econ types whom I characterize as moderate to progressive, but decidedly anti-leftist, has a rebuttal to the NYT’s recent take on CRT (Critical Race Theory). I often disagree with MattY, yet his against-the-current (particularly vs. provocative progressive) takes tend to add depth to discourse. His main point here, though, is what’s great content in a think piece isn’t always precisely what we ought to be teaching to kids in school. Parents rightly push back & forth on what we include in K-12 curriculum. That’s arguably Our-Democracy-At-Work. IOW, Lincoln picked 1776 (the Declaration) instead of 1790 (the Constitution) to talk about slavery (4 score + 7 = 87 years prior to 1863 = 1776), that was both a good & a deliberate choice. There’s no strong reason not to start our racism history from that year. There is, however, much besides racism that mattered in U.S. history. In particular, problems & principles that were in the minds of people living through those times. Kids especially need to learn that their own perspective can differ from those of other people.
See Slow Boring dot com, “Conservatives can’t win the history wars”. Also, I found what appears to be a copy of that NYT column that didn’t block me with a paywall.
sltrib dot com / opinion / commentary / 2021 / 06 / 29 / ross-douthat-wars-over