Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 2, 2021

Bill Cosby's release and the rule of law

As we begin the 4th of July weekend, we should not celebrate the fact that serial rapist Bill Cosby has been released from prison. His freedom is yet another trauma inflicted on his victims. We should, however, be grateful that we live in a country where the rule of law is followed, even when it results in wrongdoers going free.

Back in 2005, Montgomery County District Attorney Bruce Castor learned that Andrea Constand reported that Bill Cosby had sexually assaulted her in 2004. After investigating, Castor concluded that, unless Cosby confessed, “there was insufficient credible and admissible evidence upon which any charge against [him] . . . could be proven beyond a reasonable doubt.” Castor decided that the Commonwealth of Pennsylvania would refrain from prosecuting Cosby, thus allowing him to be forced to testify in a civil suit brought by Constand.

This decision meant that the Fifth Amendment’s privilege against self-incrimination would not be available to Cosby – i.e., there was no possibility of criminal charges being brought based on Constand’s allegations. So Cosby provided four sworn depositions in Constand’s civil suit – not once invoking the Fifth Amendment – and ended up settling the suit for $3.38 million.

After the records of the civil suit were released in 2015, Castor’s successor as District Attorney reopened the criminal investigation of the Constand case despite being warned by Castor that “I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath.” The criminal case nevertheless proceeded, and the deposition testimony Cosby provided in the earlier civil suit was crucial to the prosecution.

In this week's ruling, the Pennsylvania Supreme Court observed that courts are obligated “to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights.” Society “holds a strong interest in the prosecution of crimes,” but “no such interest, however important, ever can eclipse society’s interest in ensuring that the constitutional rights of the people are vindicated.” Accordingly, the Court ruled, Cosby’s convictions and sentence must be vacated.

My favorite explanation of why the rule of law matters is offered by Robert Bolt in “A Man for All Seasons” when he depicts an exchange between Sir Thomas More and a young idealist, William Roper, about giving the accused the benefit of the law:

William Roper: “So, now you give the Devil the benefit of law!"

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?"


William Roper: “Yes, I'd cut down every law in England to do that!”


Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

American courts must take seriously the rights extended by our Constitution, even when – especially when – the person seeking their protection deserves no public sympathy or solace. I’m not glad that Bill Cosby is free, but I’m glad I live in a country where judges decide his freedom based on what the law requires, not on what they think he – or any of us – deserve.

July 2, 2021 in Vischer, Rob | Permalink

Bruce Frohnen's introduction to Rommen's "The State in Catholic Thought"

After year's of hoarding the Notre Dame Law School library's, I recently bought my own copy of Henrich Rommen's classic The State in Catholic Thought:  A Treatise on Political Philosophy.  The 2016 edition I purchased (published by Cluny Media) comes with an excellent introduction by Prof. Bruce Frohnen, whose work is probably familiar to MOJ readers.  With his permission, I'm posting a little excerpt from that introduction:

Rommen’s task in The State in Catholic Thought is to explain the role the state plays in facilitating ordered pursuit of common goods. The modern nation state in particular too often asserts control over other associations, portraying itself as a single, national "good."  This is the path followed by the tyrannies of the twentieth century against which Rommen struggled.  Those tyrannies included the totalitarian regimes of Hitler, Stalin, and their ilk.  They also included the seemingly more humane regimes of the social democrats, with their utilitarian ethics and hostility toward the higher, more permanent good of the human person. . . . 

In opposition to [social democrats’] false vision of a neutral state, Rommen offers the just social order.  Too often confused with statism and even pursued as a kind of social democracy with confessional window-dressing, the state envisioned by Rommen is, in accordance with Catholic teaching, an accommodating structure serving man’s natural ends.  The state, on this view, works to bring together society’s various communities to reason together and seek common understanding and pursue common ends. It promotes rules ordering their relations with justice, respect for self-government, and attention to the common good.

Get your copy today!

July 2, 2021 in Garnett, Rick | Permalink