Defense attorneys often arouse what John Adams called a “clamor of popular suspicions and prejudices” when representing reviled clients. Just last week, the attorney Christopher Darden stopped representing a California man charged with killing the rapper Nipsey Hussle because people were so upset with his choice of client that they demanded to know his fee and threatened the safety of his children.
The vital work of criminal defense has managed to endure in spite of such attacks, thanks to a core of sober-minded citizens in each generation who know better than to pile on. They understand that to defend an accused criminal is not to defend his or her alleged crime—and that conflating the two by imposing social sanctions on attorneys would make criminal trials more like popularity contests.
Educational institutions ought to teach young adults this justice-enhancing logic. Harvard is now teaching its undergraduates how to undermine it.
Its shameful capitulation to popular passions began earlier this year when Ronald Sullivan, an African American law professor and faculty dean with a long history of freeing marginalized innocents from prison, announced that he would be working as a defense attorney for the disgraced Hollywood producer Harvey Weinstein. “Many students expressed dismay, saying that his decision to represent a person accused of abusing women disqualified Mr. Sullivan from serving in a role of support and mentorship to students,” The New York Times reported.
Sullivan was verbally abused, and the residence where his family lives was vandalized with graffiti. A survivor of sexual assault whom Sullivan helped in the past spoke out to The Boston Globe in his defense, as did many of his colleagues at Harvard Law when I contacted them for an article I wrote on the matter.
Sullivan’s colleague Jeannie Suk Gersen was especially prescient when writing in The New Yorker about the controversy:
On the same day as the vandalism, Harvard announced that, in response to “concerns about the impact of this decision on the support that students can expect to receive in the Winthrop community,” the College would undertake a “climate review,” consisting of surveys and interviews of students, after which it would “take actions, as appropriate.” The students were sent a questionnaire asking whether they find Winthrop House “sexist” or “non-sexist,” and “hostile” or “friendly,” among other things. Presumably, if Harvard learns that the “climate” requires it, Sullivan could be fired as dean.
That’s what happened on Saturday: A Harvard administrator announced that Sullivan and his wife, Stephanie Robinson, would not continue as faculty deans.
The reasons offered were vague and euphemistic.
“Over the last few weeks, students and staff have continued to communicate concerns about the climate in Winthrop House,” wrote Rakesh Khurana, dean of Harvard College. “The concerns expressed have been serious and numerous. The actions that have been taken to improve the climate have been ineffective, and the noticeable lack of faculty dean presence during critical moments has further deteriorated the climate in the House. I have concluded that the situation in the House is untenable.”
Sullivan remains a law professor.
Outsiders can’t know to what degree representing Weinstein inspired the ouster, and to what degree longtime critics of the faculty dean, such as the ones alluded to in a Harvard Crimson story attacking his performance, exploited unhappiness about Weinstein to accomplish a long-hoped-for removal.
Either way, Harvard administrators were warned about the unavoidable conflict between upholding an important civic norm––that legal representation for even the most reviled is a service to the community, not a transgression against it—and giving in to the demands of the undergraduates most aggrieved by their faculty dean’s choice of clients. And rather than infer a responsibility of the extremely privileged to uphold civic norms for the benefit of those in society who most need them, this institution, which purports to educate future leaders, chose to prioritize transient discomfort felt by its most aggrieved students.
On Twitter, an indigent-defense lawyer, James Zeigler, discussed this apparent tradeoff with a law professor, Vida B. Johnson. Here’s the core of their exchange:
Zeigler: … I don’t think Harvard is necessarily wrong for pushing Sullivan out of this post.
Johnson: You are saying then that defense attorney professors can’t be deans (and should have fewer interactions with students) because of the clients they represent? I disagree. I have a hard time accepting that race didn’t play a role here on both the student and decision-makers’ side.
Zeigler: I’m saying that in this particular situation, where a dean volunteered to take a high profile case involving allegations that directly implicate the issues he might be called to confront as dean, and students actually feel uncomfortable with this, the two jobs may be in conflict. Race may have played a role, and reports of the student response to his decision to rep Weinstein may be skewed or exaggerated. I’m not saying he couldn’t do the job.
I’m saying that protecting norms around the right to counsel, esp where someone volunteered to rep a wealthy defendant, does not justify keeping someone in a position like this if students are uncomfortable, even if that discomfort is arguably unenlightened or misplaced.
But protecting the norms around the right to counsel is orders of magnitude more important than the “unenlightened or misplaced” discomfort of some Harvard undergraduates––discomfort rooted in difficulty tolerating moral difference, not in having to report sexual assault to Sullivan, as some have erroneously suggested. In fact, Sullivan long ago appointed Linda D. M. Chavers, a resident dean, to serve as his house’s “point person” for sexual-assault issues. (Moreover, Harvard employs dozens of people to whom any student in need could report sexual misconduct.)
People outside Harvard, including up-and-coming defense lawyers and those inclined to attack them, received this message: “Harvard professor out as dean amid backlash for representing Harvey Weinstein.” (That’s from a USA Today article, but other prominent news sources ran similar headlines.) As I previously warned, Harvard’s decision may deter ambitious young lawyers from undertaking the defense of any potentially controversial client, including indigent men who stand accused of rape or sexual assault. That raises the odds of wrongful convictions, especially among the poor. Harvard grads are relatively unlikely to be affected.
In a bitter twist, all that damage appears to have been done in service of a result that may have come about anyway: On Monday, Sullivan “resigned from the legal team defending Hollywood producer Harvey Weinstein against rape and sexual assault charges before Harvard announced Saturday he would not be reappointed as a faculty dean,” the Globe reported. According to Jeannie Suk Gersen, “Sullivan’s motion to withdraw as Weinstein’s counsel states it’s bc court moved trial date from this summer, to Sept, when Sullivan has teaching obligations at Harvard Law and he can’t be in two places at once. He didn’t leave team because of student/Harvard pressure.”
This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.
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