It is possible to say, just as you do, that the US legal system has been designed to try to get us justice, we hope, where and when it is to be had and to the extent that it can be had. We can say that what the legal system gives us is not always perfect justice for all parties, as one might very well think in the Cosby case, for obvious reasons. There were over fifty allegations made against Cosby, in addition to the ones that resulted in the cases leading to Cosby’s convictions in Pennsylvania. The mountain of indirect and other evidence is more than enough to convince reasonable people that Cosby should indeed have been convicted on at least some of the charges that were overturned by the Pennsylvania Supreme Court in 2021. But the Court took into account the fact that the Attorney General of Pennsylvania had promised Cosby that there would be no criminal prosecution if Cosby would testify in a civil lawsuit, which Cosby did. The Attorney General then prosecuted Cosby anyway, using some of the testimony from the civil case. What six out of seven of the Pennsylvania Supreme Court justices found was that Cosby's due process rights had been violated as a result. The evidence from the civil case amounted to a kind of self-incrimination. The Court’s finding is not in itself an unreasonable one, and the purpose of due process protections is also a reasonable one, as it serves justice according to the Fifth Amendment of the US Constitution and other resulting provisions. So justice was done in this case, it could be said, and the CNN commentator was wrong. It could also be said that Cosby escaped on a “merely” procedural issue. In some of the other allegations against Cosby in other States the issue was a statute of limitations, which is also procedural. (We should not slide from "procedural" to "merely procedural" and then to "unimportant, trivial, and having nothing to do with justice.") So the justice that should have been delivered was not delivered, a very serious matter indeed. But as the law stands the due process violations were enough to counterbalance the probable outcome. The decision to respect that balance was made in the interests of justice and the existence of a fair and universal functioning judicial system. There are not two "logics" here, one of law and one of justice. What we have overall is a wider justice in the case, representing a success for the judicial system as a whole, but an almost intolerable injustice in the narrower sense in the particular case. That is the moral, I think. The wider and narrower considerations of justice must both be considered, but justice is what both are aiming it. It can often be tempting to wish that the narrower considerations would in some particular case override the requirements of the overall judicial system, but that is a mistake, unless the procedural commitments of the system are themselves unjust. It also occurs to me that a special rule to override procedural considerations could be contemplated for very exceptional cases of a manifest injustice, but it would be a nightmare to write. Which cases are cases of manifest injustice, and how do we decide? We would seem to be trying to duplicate the legal system here.
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On the case of Bill Cosby's
It is possible to say, just as you do, that the US legal system has been designed to try to get us justice, we hope, where and when it is to be had and to the extent that it can be had. We can say that what the legal system gives us is not always perfect justice for all parties, as one might very well think in the Cosby case, for obvious reasons. There were over fifty allegations made against Cosby, in addition to the ones that resulted in the cases leading to Cosby’s convictions in Pennsylvania. The mountain of indirect and other evidence is more than enough to convince reasonable people that Cosby should indeed have been convicted on at least some of the charges that were overturned by the Pennsylvania Supreme Court in 2021. But the Court took into account the fact that the Attorney General of Pennsylvania had promised Cosby that there would be no criminal prosecution if Cosby would testify in a civil lawsuit, which Cosby did. The Attorney General then prosecuted Cosby anyway, using some of the testimony from the civil case. What six out of seven of the Pennsylvania Supreme Court justices found was that Cosby's due process rights had been violated as a result. The evidence from the civil case amounted to a kind of self-incrimination. The Court’s finding is not in itself an unreasonable one, and the purpose of due process protections is also a reasonable one, as it serves justice according to the Fifth Amendment of the US Constitution and other resulting provisions. So justice was done in this case, it could be said, and the CNN commentator was wrong. It could also be said that Cosby escaped on a “merely” procedural issue. In some of the other allegations against Cosby in other States the issue was a statute of limitations, which is also procedural. (We should not slide from "procedural" to "merely procedural" and then to "unimportant, trivial, and having nothing to do with justice.") So the justice that should have been delivered was not delivered, a very serious matter indeed. But as the law stands the due process violations were enough to counterbalance the probable outcome. The decision to respect that balance was made in the interests of justice and the existence of a fair and universal functioning judicial system. There are not two "logics" here, one of law and one of justice. What we have overall is a wider justice in the case, representing a success for the judicial system as a whole, but an almost intolerable injustice in the narrower sense in the particular case. That is the moral, I think. The wider and narrower considerations of justice must both be considered, but justice is what both are aiming it. It can often be tempting to wish that the narrower considerations would in some particular case override the requirements of the overall judicial system, but that is a mistake, unless the procedural commitments of the system are themselves unjust. It also occurs to me that a special rule to override procedural considerations could be contemplated for very exceptional cases of a manifest injustice, but it would be a nightmare to write. Which cases are cases of manifest injustice, and how do we decide? We would seem to be trying to duplicate the legal system here.