Apr
26
There is a special place in Hell for those who cheer sending a person to prison, so mark today as a special day for the keepers of the roll in the underworld. The chorus of those cheered by the guilty verdicts against Bill Cosby deafens.
"Guilty," the jury said, three times after brief deliberations in the second trial against the 80-year-old comedian. A man once affectionately called “America’s dad” will soon, after sentence is imposed, be a convicted felon. (Judgment does not enter in a criminal case until sentence is imposed, so he's not a felon yet)
There is dark humor among defense lawyers when a jury returns a guilty verdict.
“What do we do now?” one story goes. A defendant turns to his lawyer uttering this after hearing the word “guilty.”
“You’re going to go to prison,” the lawyer replies. “I’m going home to have a stiff drink.”
Such are the consolations the law offers amid despair.
Cosby will no doubt fight his conviction on appeal. He has the funds to hire the best talent available. Here are issues that you can expect to hear more about.
First, was his deposition testimony properly admissible? Normally, the admissions of a defendant are permitted under several exceptions to the hearsay rule. The statements may be against penal interest; they may also be admissions of a party opponent.
But in this case, Cosby gave the deposition amid what sounded like assurances that the words would not be used against him in a subsequent prosecution. The trial court held that promise void. Expect appellate lawyers to challenge that ruling.
As a practical matter, it was a mistake for Cosby to give the deposition at all. The Fifth Amendment yields a privilege against self-incrimination. Plead the Fifth. Sure, you risk an adverse inference in a civil proceeding; jurors will be told that they can hold an invocation of the Fifth against a civil litigant in certain circumstances. But better to lose a little, or even a lot, of money, then head to prison.
Next, the law is ridiculously liberal when it comes to admission of evidence of other bad acts in sex crimes. Why this special status for sex offenses? Due process requires proof of the elements of the offense for which you are charged. We generally prohibit what is known as propensity, or character, evidence. Showing a jury that a defendant committed other bad acts predisposes the jury to believe the defendant did what he is charged with doing. Such evidence is strictly limited, except in sex cases. It makes no sense to have special rules of evidence for sex cases. The parade of accusers was prejudicial. Period.
And what of the extended statute of limitations in sex cases? Try defending yourself sometime against an accusation that took place, allegedly, more than a decade ago. The statute of limitations never runs in a murder case. That’s because of the seriousness of the crime, and the fact that the decedent cannot speak. Cosby’s accusers are still very much alive. Sex, unlike murder, is ubiquitous.
Finally, the corroboration provided by the accuser’s publisher, who was permitted to testify that the accuser wanted to put allegations of Cosby’s sexual misconduct in her book, but the publisher spiked it, was most likely offered for the limited purpose of showing that the accuser wanted to make the allegation public, not for the truth of the assertion – that Cosby raped her. That’s the sort of distinction judges ask jurors to draw all the time. I have my doubts about whether jurors follow the law. This so-called constanncy of accusation evidence is a flashpoint in the law just now.
Now that claims of sexual misconduct have captured the imagination of the chattering class, the Cosby appellate lawyers ought to take pains to educate the public about the law governing prosecution of sexual assault claims. Today it is Cosby who was laid low. Who will it be tomorrow? There’s plenty of ambiguous bumping and grinding going on in the night. Will these acts, too, be called crimes in the distant future?
I’m rooting for you, Bill Cosby. The groupies delighting in your conviction are an angry mob. #MeToo is sated today with blood lust. It’s more than a little creepy.
Apr
24
I wonder what Isaiah Berlin would have had to say about artificial intelligence. This occurred to me as I sat listening to presentations on big data and the Fourth Amendment at a recent conference in New York City sponsored by the National Association of Criminal Defense Lawyers. It turns out we’re all blips on someone’s screen, and there doesn’t seem much we can do about it.
Lawyers in general do not read enough. Oh, we read plenty of case law, treatises, pleadings – all the flotsam and jetsam that make the law a semi-scholarly profession. But what we don’t read enough of are essayists, historians, poets, philosophers. The result is a sort of tunnel vision. And, I might add, turgid and scholastic Supreme Court opinions that promote neither respect for, not understanding of, the law by non-lawyers.
Lawyers ought to be required to spend a certain amount of time each week reading outside the law. What drives litigation, and the need for lawyers, is the raw material of life. Lawyers try to harness this energy and direct it into peaceful and largely civilizing channels. We’d benefit from more time swimming in the currents that drive clients to our doors.
So let me recommend Isaiah Berlin. We can start with one of his most famous, and accessible, essays: “The Hedgehog and the Fox.”
Berlin was an Oxford don and intellectual historian who wrote scores of essays and books in the second half of the twentieth century. He was what some call a political philosopher, a person who understood politics as Aristotle understood politics: the pursuit of knowledge about what constitutes a good life, both individually, and collectively.
The “Hedgehog and the Fox” was written in the 1950s. Berlin famously distinguished between hedgehogs, folks dedicated to the pursuit of one great, unifying truth, or vision about the good life, and the fox, folks content to master many things, understanding that the whole shall forever be beyond their grasp. Berlin writes of the monism and the pluralism.
Pluralism is, of course, a staple of liberalism. We believe that so long as folks are free to pursue their own individual ends, truth will, in the end, prevail. Liberty serves as the means to the good life. Monists can threaten the liberal project by imposing their vision of the good, thus the danger of totalitarianism.
But does this mean that there is no larger truth in the world? Pluralism was never intended by its founders to be an end in itself. John Stuart Mill’s classic work, On Liberty, supported freedom of speech as a means of setting the marketplace of ideas free from the dead hand of censors. Why? So that we could better learn the truth about ourselves and our world.
All pluralists, it turns out, are agnostic monists. There are many roads to the one place we all seek: the truth about the good life.
Berlin’s essay is really a meditation on Leo Tolstoy’s War and Peace. Totstoy was a virtuoso fox, dissecting the French invasion of Russia under Napoleon in minute imaginative detail. We might call his critical perspective granular. He was a master of portraying the lived, and idiosyncratic, lives of individual participants. He was a fox confidently describing the manifold lives caught up in the conflict.
He scorned hedgehogs, the theoreticians who described events in terms of grand political, military or economic theory. The war tumbled on almost as if inevitable; men of ideas tried to harness the fury. But these failed hedgehogs could never comprehend the minute, and infinite, causes of things. Understanding experience is simply too vast an undertaking. It is best, Tolstoy thought, to be moderate in what we expected. He drew inspiration from the felt sense of decency of common men and women.
What has this to do with artificial intelligence?
Tolstoy thought reason insufficient to capture the full sense of reality. There were too many causes, too many events – too many variables for the mind to master. But he did not deny that there was a reality. And that’s the point.
Google, Amazon, Facebook – the algorithmic masters assembling seemingly infinite data points can and do capture a far more robust sense of all the variables that constitute reality than can any individual mind. Police departments and governments now engage in predictive policing, aggregating data about our past behavior to predict what we are likely to do in the future. Is it possible that as computing power increases our world will be down with precision? What truth will that reveal? Can we bear it?
And what then of our cherished sense of liberty, of autonomy, of dignity?
I’ve been watching the opiod crisis with an increasing sense of foreboding. Do happy and productive people choose to dull the pain of living with painkillers? What if in a world increasingly understood, and mastered, by machine learning, the machines reach a point of superintelligence – what commentators call singularity? Do the machines then decide we humans are inefficient and unnecessary? Is the opiod crisis a thinning of the herd?
Dark thoughts, I know. I’d love to know what Isaiah Berlin would have made our madcap world. Few write as well and as piercingly as did he.
Tolstoy, Berlin wrote, was a frustrated monist. He believed there was a reality, and that wisdom meant accepting its limits without seeking to impose false theories on the raw data of experience. That seems somehow quaint in the age of AI. What if the machines see more clearly than do we? What if every cause can be plumbed, and freedom is shown, after all, to be an illusion?
It’s been years since I spent serious time with Isaiah Berlin. It’s time for a return to this wise man’s writings. Next up, another classic of his: “Two Concepts of Liberty.”