Let’s shine the light of ethics on the recent decision to release Bill Cosby from prison. The first ethical consideration is “due process”. In legal ethics, due process always takes precedence. This is where the debate of the recent decision is located. The focus should be on Bruce Castor’s decision to not charge Cosby criminally but make a “verbal” agreement that Crosby’s confession to him would forever hold. A judge who investigated Castor’s decision said that if there is nothing written down, then the verbal agreement should not hold. The judge criticized Castor for a lack of good judgement in doing this without a written statement.
To be fair to Castor, he did not have the evidence to try the case as the victim waited one year to report it. Castor’s main argument is referred to as the “teleological suspension of the ethical.” This is a phrase that was first used by the philosopher and ethicist, Soren Kierkegaard in his seminal work, Fear and Trembling. He stated that if there is a higher purpose, you can act in a way that contradicts social norms or ethics. Machiavelli put it this way, “The ends, justifies the means.” Castor believed that the victim was telling the truth, but thought that he would have a better chance of finding Cosby guilty by trying the case in a civil and not a criminal way. His “intent” was good. It resulted in a financial settlement.
Castor was wrong to forbid any future deliberations on the case based in his verbal commitment to Cosby. He was wrong because of the “reasonable person standard. ”No judge or lawyer had ever seen this way of proceeding. When challenged on this, Castor said that “he felt no obligation to write it down because it was the right thing to do.” If you saw his performance at the second impeachment trial of Donald Trump, you know that he oozes arrogance. He has not made friends with humility and was criticized harshly for his defense of Trump.
Castor was practicing “the teleological suspension of the ethical.“ That is the heart of his personal defense, but it was sloppily executed. By the way, my ethics students loved that phrase and its meaning. When one of my scholar athletes was interviewed, he dropped that phrase often to make the point that he was a scholar as well as an athlete. The press ate it up!
One of my senior student spiritual leaders was Graham Burnett. He is now a professor of history at Princeton. While he was working on his doctoral thesis, he was living in New York. He was called for jury duty and became the foreman of the jury for a high-profile murder case. He wrote a book describing his experience called, The Jury. In essence everyone in the courtroom including the jury knew that the accused was guilty but lack of evidence and due process issues resulted in him being found not guilty. No one felt good about the decision, but due process ruled the day. Graham called me and indicated that he used his skills as the leader of the student spiritual leadership team in guiding the jury. I had him come back and speak in chapel about his book.
The legal ethical concern that freed Bill Cosby was a concern that confessions made to a prosecutor needed to be protected not matter what form they were made in, written or verbal. This would mean that confessions were sacred. Again no one agreed that Castor should have tied the hands of people who would try the case in the future. The ethical importance of precedent ruled the day. Graham wrote at the end of his book a phrase that we have heard before. “Our justice system may be flawed, but it is still the best of what the world has to offer.”
But Cosby is not free of his crimes. I am not talking about future court cases. I am referring to his behavior “when everyone is looking.” This morning the press made a point of Cosby contacting people in comedy clubs and other venues to get his career back on track. Did he not know that this would be salt in the wounds for the women who had accused him and went through a painful process of coming forward to make their case? No, he didn’t. If he did, he was practicing revenge.
We have heard the expression that the “character of a person is measured by what they do when no one is looking.” Perhaps the statement that describes Cosby best is the “character of a person is measured by what they do when everyone is looking.”
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