William Blackstone Meets Bill Cosby

William Blackstone (1723-1780) was an English judge and politician. His Commentaries on the Laws of England organized and documented the common law that we use in America. Blackstone is also remembered for Blackstone’s Ratio:

It is better that ten guilty persons escape, than that one innocent suffer.

Bill Cosby was an entertainer who was constantly present, on television and through comedy albums, while I was growing up. Cosby was convicted of three counts of indecent aggravated assault in September 2018. The case centered on Cosby’s conduct with one woman, who testified that Cosby drugged her and then raped her in 2004. A previous Montgomery County (PA) district attorney, Bruce Castor, promised not to prosecute Cosby. Cosby was later deposed in a civil trial, in which Cosby made self-incriminating statements.

The current Montgomery County district attorney, Kevin Steele, revoked the promise of Castor and prosecuted Cosby, using his statements to obtain a conviction.

This week, the Pennsylvania Supreme Court vacated the conviction. The court found that Steele was obligated to observe Castor’s promise not to prosecute Cosby, and that the use of the self-incriminating statements tainted his conviction.

Understandably, a lot of women who crossed Cosby’s path are upset about this outcome. As early as 2015, a group of 35 women discussed their encounters with Cosby, in which they claim he assaulted them. I am convinced by their stories and find them credible. However, I am not a court of law.

Nevertheless, the Pennsylvania Supreme Court acted properly. Former US attorney Harry Litman explains:

Rather, Justice David Wecht’s opinion for the Supreme Court turned on a violation of Cosby’s right not to incriminate himself. That’s being called a technicality, but it’s more than that — it’s a bedrock constitutional right.

Upholding that right even in the face of repulsive conduct is exactly what courts are supposed to do.

“Cosby’s freeing was correct as a matter of law. But it’s in no way a vindication.”, Washington Post, 30 Jun 2021.

The Cosby case is a painful application of Blackstone’s Ratio in real life. Applying Blackstone’s Ratio here, it means that it is better that ten sexual predators go unpunished than that one innocent person is convicted of rape.

Totalitarian governments take quite the opposite approach: it is better that ten innocent persons suffer than that one guilty person go unpunished. The Soviet Union and the Khmer Rouge in Cambodia all operated using this principle. Communist China still does. We don’t want that here.

A justice system is operated by people, and people make mistakes. What mistakes are the least worst? As I see it, having innocent persons convicted is worse than having guilty persons go free due to process problems. We will have mistakes both ways, but the bias should be toward not convicting, as Blackstone observed.

I regret the pain this causes to the women who are survivors of predatory encounters. It is unpleasant and messy. Yet, I am unwilling to throw Blackstone’s Ratio in the garbage.