Harvard's first black law school dean loosing position due to student pressure over him defending Harvey Weinstein

Bartholomew Gallacher

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Law professor Ronald S. Sullivan Jr. and his wife Stephane Robinson have been the first black faculty deans (of Winthrop house) in Harvard's history, responsible for Winthrop house.

Tensions started to show up by students when Ronald Sullivan joined Harvey Weinstein's defence team in January this year. Many students expressed dismay, saying that this decision to represent a person accused of abusing women disqualified him from serving in a role of support and mentorship to his students.

Graffiti aimed at Mr. Sullivan ("Down w Sullivan!") appeared on a University building, it escalated further with a student sit-in and lawsuit sparked by a clash of protest leaders and two Winthrop house staff members who were seen as supporting Mr. Sullivan.

Last Saturday then the dean of Harvard College, Rakesh Khurana, sent an email to all students of Winthrop house informing them that after a "climate review" the contract with Sullivan and his wife as faculty dean will not be renewed. He's going to remain a lecturer, though.

Some are pointing out that Sullivan was being treated unfairly because of him being black; and while he's represented other controversial clients as well, only Weinstein (where he left the team in the mean time) stirred up this controversy at the college.

 

Innula Zenovka

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There's probably more to this than meets the eye -- I certainly hope so -- but on the face of it, both the students' reaction to Mr Sullivan representing Harvey Weinstein and Harvard's decision are quite shocking, at least to me.

Whatever we think of Harvey Weinstein, he is, like any other defendant, entitled to the presumption of innocence and to competent legal representation. His guilty or innocence shouldn't be decided behind closed doors by lawyer but by a jury after a public trial where all the evidence against him can be properly presented and tested.

Whatever doubts a lawyer may privately have about his or her client's innocence, if the client maintains his innocence and his case, if the jury believe it, amounts to a valid defence, then it's the lawyer's duty to put that case as strongly as possible, and law students who don't understand that should probably not be working in the field of criminal justice. Furthermore, I'd have hoped that students at any university, let alone one like Harvard, would understand something as basic as that about the criminal justice system of the country in which they live and study and of which many of them have been residents since birth.

When a lawyer defends or prosecutes a criminal case, it doesn't follow that she does so because she believes in the defendant's guilt or innocence. What matters to the prosecutor is that the case against the defendant is sufficient for a reasonable jury, correctly instructed about the law, to convict the defendant if the jury accepts the prosecution case. Similarly, what matters to the lawyer appearing for the defendant is that her client's instructions amount to a valid defence against the charges, if the jury accepts the defence's case.

Lawyers who specialise in criminal defence work have this argument all the time at dinner parties, at least if there's a controversial case in the headlines. The answer to "How can you bring yourself to represent so-and-so? Don't you believe the complainants about what they say he's done to them?" is, quite simply, that before the state is going to impose life-changing criminal penalties on someone, we want to be very sure that he's actually guilty, in order to maintain public confidence in the criminal justice system.

The way we do that in both the UK and the USA is to start from the presumption that the defendant is innocent and then present the evidence as clearly as possible to an independent jury of ordinary citizens, allowing the defendant to test the prosecution case and introduce his own evidence to rebut the prosecution's evidence.

Only if, after all that, the prosecution has managed to persuade the jury so that they are sure of the defendant's guilt, is it safe to convict.

If you allow lawyers to decide that the defendant is obviously guilty so there's no need to go to the trouble of holding a trial, that's as bad, if not worse, as it would be for the prosecution to decide that there's no point in bothering with a trial because, while the complainants may well be telling the truth, the jury probably won't believe them, whether because of how they were dressed at the time of the incident or because they were drunk or because of their previous sexual history.

Obviously everyone forms their own opinion of whether a defendant is guilty or not, and Mr Sullivan might well not wish to socialise with his client (or even expect a jury to acquit him) but that's not the same as believing that the criminal justice system depends on defendants having the presumption of innocence and the right to a competent defence.

If Weinstein says he's not guilty of the charges then it's his right to have his side of the story put as strongly as possible by competent legal representation, and that's all there is to it.
 

Dakota Tebaldi

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Whatever doubts a lawyer may privately have about his or her client's innocence, if the client maintains his innocence and his case, if the jury believe it, amounts to a valid defence, then it's the lawyer's duty to put that case as strongly as possible, and law students who don't understand that should probably not be working in the field of criminal justice. Furthermore, I'd have hoped that students at any university, let alone one like Harvard, would understand something as basic as that about the criminal justice system of the country in which they live and study and of which many of them have been residents since birth.

When a lawyer defends or prosecutes a criminal case, it doesn't follow that she does so because she believes in the defendant's guilt or innocence. What matters to the prosecutor is that the case against the defendant is sufficient for a reasonable jury, correctly instructed about the law, to convict the defendant if the jury accepts the prosecution case. Similarly, what matters to the lawyer appearing for the defendant is that her client's instructions amount to a valid defence against the charges, if the jury accepts the defence's case.

Lawyers who specialise in criminal defence work have this argument all the time at dinner parties, at least if there's a controversial case in the headlines. The answer to "How can you bring yourself to represent so-and-so? Don't you believe the complainants about what they say he's done to them?" is, quite simply, that before the state is going to impose life-changing criminal penalties on someone, we want to be very sure that he's actually guilty, in order to maintain public confidence in the criminal justice system.
That's all generally true - but I don't think it fairly paints the whole picture when it comes to Sullivan specifically. Professor Sullivan is a full-time law teacher; he doesn't have a law office that he practices out of nor does he belong to a firm, and typical defendants in typical legal cases don't really have access to hire him directly the way you'd hire a normally practicing lawyer. Although perhaps not as famous as others, he's something of a celebrity lawyer in that on the rare occasions he does act as a criminal defense attorney, it's as part of "dream teams", ad-hoc legal powerhouses assembled by wealthy defendants and/or their benefactors to fight publicly famous/infamous cases. It probably goes without saying that Sullivan doesn't agree to represent every single person who asks him, so this fellow in particular, compared to your average attorney, definitely does have the luxury of picking and choosing his clients and the cases that he agrees to work on - whether that choice is based on cases that he thinks he has a good chance of winning, or that dominate the news-cycle enough, or that he feels address an important enough point of law, or that he feels some kind of affinity for the defendant; maybe some combination of these - whatever it is, it's not as simple as "Weinstein is entitled to competent representation, somebody has to represent him". Weinstein is considerably wealthy and has more-than-competent representation even without Sullivan.
 

Innula Zenovka

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That's all generally true - but I don't think it fairly paints the whole picture when it comes to Sullivan specifically. Professor Sullivan is a full-time law teacher; he doesn't have a law office that he practices out of nor does he belong to a firm, and typical defendants in typical legal cases don't really have access to hire him directly the way you'd hire a normally practicing lawyer. Although perhaps not as famous as others, he's something of a celebrity lawyer in that on the rare occasions he does act as a criminal defense attorney, it's as part of "dream teams", ad-hoc legal powerhouses assembled by wealthy defendants and/or their benefactors to fight publicly famous/infamous cases. It probably goes without saying that Sullivan doesn't agree to represent every single person who asks him, so this fellow in particular, compared to your average attorney, definitely does have the luxury of picking and choosing his clients and the cases that he agrees to work on - whether that choice is based on cases that he thinks he has a good chance of winning, or that dominate the news-cycle enough, or that he feels address an important enough point of law, or that he feels some kind of affinity for the defendant; maybe some combination of these - whatever it is, it's not as simple as "Weinstein is entitled to competent representation, somebody has to represent him". Weinstein is considerably wealthy and has more-than-competent representation even without Sullivan.
The rule in England is quite clear -- it's generally called the cab-rank principle, since it's similar to the rule governing taxis. That is, the cab at the head of the rank has to take you wherever you want to go, so long as you've got the fare and it's in the area covered by the driver's taxi licence. The taxi driver doesn't get to turn you down because the journey's too short for him, or too long or he doesn't like driving in that particular area. Similarly, if the barrister is free to take the case and the client has funds, then it's the barrister's duty to represent him.

If it's different in US cases, then fair enough, but I don't really see what difference Weinstein's wealth or notoriety has to do with anything. He is accused of serious criminal offences, which he denies. He is entitled to a fair trial with the legal representation of his choice. His reasons for wanting to be represented by Mr Sullivan are not, to my mind, relevant and neither is his wealth, other than to the extent he can afford to pay Mr Sullivan's fees.

That's all there is to it, surely? Would his taking the case have been more or less acceptable were Weinstein broke and he was acting for him pro bono?
 

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You're right, Weinstein's reasons for wanting to hire Sullivan don't matter; that wasn't really the point. The point was Sullivan's reasons for agreeing to work for Weinstein. Again, Sullivan's particular position allows him to pick and choose which cases he'll represent. He doesn't represent everyone who asks, so his reasons for joining Weinstein's defense team aren't as simple as "Weinstein is entitled to ask". The people whose cases Sullivan doesn't take, are also entitled to ask. He is entitled to say "no" to them. He was entitled to say "no" to Weinstein as well, but he chose not to.
 
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It's very different; t's not as if Sullivan is acting as a public defender, or doing this pro bono. Weinstein could avail himself of the public defender if no one would take him.

Sullivan has the luxury of choosing his clients. He may think that someone like Weinstein deserves good representation, no matter how odious he may be, and that is probably the case. But it should be seen as a last option to take such a case, not the first or of the first few. Maybe there is something we do not know, such as the bar asking him to do it.
 

Bartholomew Gallacher

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What's really disturbing and was not discussed much here is the fact that his wife, which was completely uninvolved in this, faced heavy repercussions and lost her position as faculty dean as well, though she was not part of Weinstein's defense team. The only reason why she became a victim is that she's Sullivan's wife, that's enough.

This nothing more or less than a lynch mob completely wrecking havoc upon an innocent person; a collective punishment, a toxic environment. So whatever morally justified intentions the students might have had, considering the fact how the acted against Sullivan's wife clearly shows that they are by far means not better than Sullivan is in their eyes; in fact, they are much more worse so.
 
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Innula Zenovka

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Maybe I'm looking at it from the wrong point of view, which is a product of my background and training, but to me a lawyer refusing to represent a client because he thinks he's guilty, or because he's got a deservedly bad reputation, is equivalent to a doctor refusing to treat the same client because she thinks he's guilty, too, or she doesn't like him for some other reason.

The fact that Sullivan is a successful lawyer, in a financial position to be able to pick and choose his clients, doesn't seem to me particularly relevant. So what? People who can afford his services are as entitled to the presumption of innocence and to legal representation as are people who are indigent.

What's the decision making process supposed to be here? Weinstein consults Sullivan. Sullivan establishes that, on the facts as Weinstein has outlined them, he appears to have a valid defence in law provided the jury accepts his version of events. Sullivan also establishes that Weinstein can afford to pay his fees and that there's no profession reason why he -- Sullivan -- shouldn't represent Weinstein (no conflict of interest, no clashing professional obligations , though it seems that this became an issue later on, when the trial date was set and clashed with Sullivan's teaching commitments and was released from the case by the court).

Why, before the teaching commitments became an issue, should Sullivan have refused to represent Weinstein? Because he's too wealthy or because it might upset Sullivan's students or what? I'm sure it makes sense to someone but not to me.
 

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Maybe I'm looking at it from the wrong point of view, which is a product of my background and training, but to me a lawyer refusing to represent a client because he thinks he's guilty, or because he's got a deservedly bad reputation, is equivalent to a doctor refusing to treat the same client because she thinks he's guilty, too, or she doesn't like him for some other reason.

The fact that Sullivan is a successful lawyer, in a financial position to be able to pick and choose his clients, doesn't seem to me particularly relevant. So what? People who can afford his services are as entitled to the presumption of innocence and to legal representation as are people who are indigent.

What's the decision making process supposed to be here? Weinstein consults Sullivan. Sullivan establishes that, on the facts as Weinstein has outlined them, he appears to have a valid defence in law provided the jury accepts his version of events. Sullivan also establishes that Weinstein can afford to pay his fees and that there's no profession reason why he -- Sullivan -- shouldn't represent Weinstein (no conflict of interest, no clashing professional obligations , though it seems that this became an issue later on, when the trial date was set and clashed with Sullivan's teaching commitments and was released from the case by the court).

Why, before the teaching commitments became an issue, should Sullivan have refused to represent Weinstein? Because he's too wealthy or because it might upset Sullivan's students or what? I'm sure it makes sense to someone but not to me.
That is not an apt analogy. People don't have choices when they're hurt or dying to choose which doctors treat them. They're triaged and taken to whomever is working. Not so when it comes to lawyers. Lawyers are not obligated to take any case unless they're the public defender, or they have some conflict of interest, generally speaking. Given what we know, it's certainly on one's conscience whether or not one takes such a client. He decided that his conscience could handle it.
 
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Innula Zenovka

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That is not an apt analogy. People don't have choices when they're hurt or dying to choose which doctors treat them. They're triaged and taken to whomever is working. Not so when it comes to lawyers. Lawyers are not obligated to take any case unless they're the public defender, or they have some conflict of interest, generally speaking. Given what we know, it's certainly on one's conscience whether or not one takes such a client. He decided that his conscience could handle it.
You say that "lawyers are not obligated to take any case." I understand that's the case in the USA but what I'm saying is that's certainly not the case in the UK, where barristers have to operate on the cab-rank principle and take the case if they're offered it (unless there's a good reason not to), which is why this case seems so strange to me.

That's why I'm trying to understand the considerations that -- in general -- apply when an American lawyer decides whether to take the case. We've established that the defendant has an arguable defence, that he can pay my fees, I'm available at the appropriate times, and there's no conflict of interest or professional reason that prevents my taking the case. On what basis do I decide not to accept the case? Do I think, "I don't like this chap's politics, so I won't defend him" or "I think he's probably guilty anyway, and I don't like him" or what?

In my analogy with a doctor refusing to treat someone, I don't think I specified that the patient had to be dead or dying. The point of the comparison, rather, is that someone -- the defendant or the patient -- needs your professional assistance. Assuming that he or she can pay for it, that you're available and competent to provide it, and there's no professional rule preventing your giving that assistance, what considerations -- if any -- make you decide whether or not to accept the case?
 

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Given what we know, it's certainly on one's conscience whether or not one takes such a client. He decided that his conscience could handle it.
I couldn't disagree more.

Conscience is what should keep us from hurting other people, from committing murder, from raping and abusing, pilfering, embezzlement, you name the crime, conscience should guide us to do better.

Taking on a legal client is a matter of professional ethics. If you believe strongly in the Rule of Law - as one would expect a lawyer to do - then you accept that EVERYONE has a right to legal counsel. The ethical concern is not "everyone I think is innocent" or "everyone I personally like" but everyone who is being charged with a crime.

If anything, it's a matter of conscience to take a case that other lawyers avoid, precisely because it is the right thing to do. But in the end, Sullivan's motivations for taking this case are irrelevant. He is right to take it, to take any case. It can never be wrong to represent someone fairly in our system of justice.
 

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On what basis do I decide not to accept the case?
To give a personal example for a civil case, I was turned down because it wasn't worth the lawyer's time. I later got compensation through a class action for the same cause (mutual fund fraud involving mortgage-backed securities leading up to the Great Recession), but as an individual my losses weren't big enough to pursue. I don't know what the rules are for private criminal defense attorneys.
 
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Innula Zenovka

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To give a personal example for a civil case, I was turned down because it wasn't worth the lawyer's time. I later got compensation through a class action for the same cause (mutual fund fraud involving mortgage-backed securities leading up to the Great Recession), but as an individual my losses weren't big enough to pursue. I don't know what the rules are for private criminal defense attorneys.
That's a question of payment, I think, though. Unless I misunderstand it, the lawyer was unwilling to take the case on a contingency fee basis (that is, for a percentage of the damages if you won) because the sum involved wasn't sufficiently large to guarantee him or her a reasonable fee at the end of the case.
 

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I couldn't disagree more.

Conscience is what should keep us from hurting other people, from committing murder, from raping and abusing, pilfering, embezzlement, you name the crime, conscience should guide us to do better.

Taking on a legal client is a matter of professional ethics. If you believe strongly in the Rule of Law - as one would expect a lawyer to do - then you accept that EVERYONE has a right to legal counsel. The ethical concern is not "everyone I think is innocent" or "everyone I personally like" but everyone who is being charged with a crime.

If anything, it's a matter of conscience to take a case that other lawyers avoid, precisely because it is the right thing to do. But in the end, Sullivan's motivations for taking this case are irrelevant. He is right to take it, to take any case. It can never be wrong to represent someone fairly in our system of justice.
I'm not saying he's not right to take it. But like it or not, people do turn down clients for reasons that have nothing to do with whether or not they believe in the rule of law. The only real barrier is a conflict of interest. Without more information, it's hard to say what happened here. But this kind of heckling happens all the time, and not everyone can handle it.
 

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In my analogy with a doctor refusing to treat someone, I don't think I specified that the patient had to be dead or dying. The point of the comparison, rather, is that someone -- the defendant or the patient -- needs your professional assistance. Assuming that he or she can pay for it, that you're available and competent to provide it, and there's no professional rule preventing your giving that assistance, what considerations -- if any -- make you decide whether or not to accept the case?
Seeing how we have a doctor shortage, some doctors just stop accepting new patients. You're not entitled to a doctor's services unless you're in an emergency situation. And you're not entitled to any particular lawyer's services, either, other than whatever public defender you get if you can't get an attorney.
 

Innula Zenovka

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Seeing how we have a doctor shortage, some doctors just stop accepting new patients. You're not entitled to a doctor's services unless you're in an emergency situation. And you're not entitled to any particular lawyer's services, either, other than whatever public defender you get if you can't get an attorney.
Yes, I realise that. But the question to which I'm seeking an answer is, when a US lawyer finds herself considering taking a particular case, and she establishes that the defendant has a good defence against the charges, assuming the jury accepts his evidence, and that he can pay her fees, and she's available to take the case and there's no professional reason she should decline it, what factors does she, or should she, consider in deciding whether or not to take the case?

My problem is that "All things being equal, I would take the case but, since the defendant is a deservedly unpopular figure and I think he's probably guilty anyway, I'll decline it" is a very dangerous reason to refuse to represent someone, for reasons that should be obvious.
 

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My problem is that "All things being equal, I would take the case but, since the defendant is a deservedly unpopular figure and I think he's probably guilty anyway, I'll decline it" is a very dangerous reason to refuse to represent someone, for reasons that should be obvious.
Surely in a situation where lawyers can chose to accept or decline cases, it would be more ethically sound to decline cases where you do not believe in the innocence of the defendant?

Yes, yes. I realise lawyers are meant to be above niceties like bias and whatnot, but realistically speaking, they're still people and still have feelings. If you don't believe in the innocence of the person you're defending, can you really assure them you're going to perform at the top of your game? Isn't it ethically sounder not to place yourself in that position?
 

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Law school faculty take cases to maintain their practice in their field. Generally they take cases in the area that they teach. Law school deans at ivy league schools take high profile cases to maintain their practice and to maintain the prestige of their school. That is generally how they got the position in the first place.

Punishing a faculty member for taking a case that does not violate professional ethics is a violation of academic freedom and legal professional ethics. Punishing their spouse is nothing more than petty mob rule. Law students should fucking well know better.

That the client is a dick who belongs in jail in the public eye is irrelevant. I hate the guy and hope he goes away for a long time. But not without a sound defense and a fair trial. Which requires the legal representation of his choice.