Cosby, justice, and what we teach our students

The following is by my FIU colleague Scott Fingerhut, who is Assistant Director of the Trial Advocacy Program and practices criminal defense.

 

 

The call of my summer criminal procedure class is for each student to come to terms with what justice looks like to them. 

Not an easy task, particularly in America today.

But in the two weeks since Bill Cosby was freed, I sense a reckoning, something of what Dr. Cornel West must have meant when he said,  “justice is what love looks like in public.”

For all his wretchedness, give America’s Dad credit: He confessed when he said he would.

Sure, maybe not in full.  And yes, only when his liberty was no longer at stake.

Yet still, he kept his word.  And so, then, should the prosecutors have kept theirs, as the Pennsylvania Supreme Court held. 

A matter of pure contract – reliance, to his detriment, upon an offer for consideration, and then, estoppel.

Justice. 

And not a bitter pill to swallow at all.

For as we continue on our mutual journey to repurpose America, in this season of accountability and rethinking lusts for power in quests for liberty, Cosby delivers yet another powerful teaching moment – on how sacred is honor.

Promises made, promises kept, in court and out.

And make no mistake: for many, too many, this is a message that can and must indeed be taught.

Honor, like humility, is an elusive quality, to be sure, but one that is, in fact, possible to define, able to be told, and capable of being understood, all deference to Justice Jackson.

Honor is the soul of our profession, and a core of criminal justice.  This the Court spoke, in Santobello and Brady: “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”

And that our students must really know.  That it will be up to them to do justice.  And to do justice, they must know justice, feel it, in their bones.

That the iron in their word is their bond. 

And that (the wisdom of all prosecutorial decision-making in this case aside) means celebrating, not lamenting, Cosby’s release.

For without honor, what is there left to be taught?

Six months before his death, upon accepting the Liberty Medal at the National Constitution Center in Philadelphia, Thurgood Marshall continued to impress that “[t]he legal system can force open doors and sometimes even knock down walls.  But it cannot build bridges.  That job,” he said, “belongs to you and me.”

Lawyer as bridge-builder. 

Law student as constructor-in-residence. 

So, thanks for the lesson, Mr. Cosby.

Contrary to most of the press, your case has nothing to do with celebrity, and everything to do with honor.  As much, if not more, about process than outcome.  The spirit of American crim pro.  And the essence of justice.  Even for, especially for, the least, last, lost, left out, and looked over. 

And that’s the point.

How a society treats its outcasts, the least among it, says perhaps the most about the type of society it is, and yearns to become.