When Did the Left Stop Believing in the Right to Counsel?
Next year, Boston will have the opportunity to commemorate the 250th anniversary of the Boston Massacre. The victims in the confrontation and shooting outside the Boston Customs House have long been considered the first casualties of the American Revolution, and the fact that one of the fallen was an African American (Crispus Attucks) helped make the incident even more relevant in recent decades.
However, one of the most important lessons of the massacre won’t get the same respect it did in the past: the importance of the right to counsel.
When the British soldiers who had fired into the crowd on the night of March 5, 1770, were put on trial, it was John Adams — one of Boston’s top lawyers and a leading member of the Patriot political faction that had helped incite the protests against the government — who took their case. His successful defense of the most unpopular defendants in the colonies at the time was the moment when the future president entered history. And by choosing to face down the hostile mob of fellow Patriots organized by his cousin Sam Adams, he also stood for a principle — the right to effective counsel — that has become a hallmark of the American legal system.
But Adams’s alma mater, Harvard University, has broken with the spirit of what he achieved. In a shocking development, the school announced last weekend that their first African-American faculty deans would be terminated. Ronald S. Sullivan Jr. and his wife, Stephanie Robinson, may continue to teach at Harvard Law. But they lost their jobs as deans because of their decision to join the defense team of former Hollywood mogul Harvey Weinstein, who faces charges of sexual misconduct.
Rhakesh Khurana, the dean of Harvard College, described the decision as a result of concerns about “the climate” at Winthrop House, the institution that Sullivan and Robinson had led since 2009. While there was some attempt to portray the pair as having been the subject of prior controversies, there was little doubt that the main reason for climate change at Winthrop was the fact that the two legal scholars had become part of a new “dream team” that would attempt to keep the country’s most notorious #MeToo villain out of prison.
Student protests about Sullivan and Robinson’s legal activities had been in the news throughout the last semester, with a small but vocal group calling for Sullivan’s resignation as dean. Critics of the lawyers vented their anger in graffiti depicting slogans such as “down with Sullivan,” “our rage is self-defense,” and “whose side are you on?”
Those against Sullivan and Robinson weren’t objecting in principle to their defending controversial clients. During the last decade, while both taught at Harvard Law and presided over Winthrop House, Sullivan — who has specialized in attempts to overturn what he considers to be wrongful convictions — represented Ussaamah Rahim, an accused terrorist who had been shot by the Boston Police.
But Weinstein was the first controversial Sullivan client who fit into categories toward which academic elites are generally unsympathetic. The former Hollywood mogul is the poster child for #MeToo villainy, with more than 80 women having alleged that he was guilty of sexual misconduct against them, up to and including rape.
Sullivan clearly expected students to understand that even the most repulsive defendants are entitled to legal representation. But he underestimated two factors.
First, the presumption of innocence has been undermined by the #MeToo movement that took off in the fall of 2017 — a movement catalyzed by the accusations against Weinstein. The increased attention paid to all forms of sexual harassment and assault was long overdue. But #MeToo brought with it the idea that one must simply “believe accusers.” Crowd-sourced accusations, such as those on the the so-called Sh***y Media Men list, trafficked in unsubstantiated charges of misconduct and threatened to end careers with no due process whatsoever.
This was very much in tune with the way that sexual-misconduct cases have been handled on college campuses. At many if not most institutions of higher education, the accused have been subjected to a process that required them to prove their innocence rather than the other way around, and that shielded accusers from questioning.
Indeed, some of those who defended Sullivan’s firing by Harvard said that his defense of someone accused of sexual misconduct was in conflict with his status as a dean responsible for the welfare of the students who lived, ate, and socialized at Winthrop House. According to one student writing in the New York Times, Sullivan’s representation of Weinstein would discourage victims from coming forward and “infringe on students’ safety.”
But the negative “climate” at Harvard is not solely related to #MeToo’s influence. A shift in the culture of political liberalism is also part of the story.
With conservatives asserting their First Amendment rights in cases seeking to push back against the power of big government and a politically correct legal establishment, liberals have lost faith in the defense of civil liberties for their own sake. Justice Elena Kagan has complained of conservatives’ “weaponizing” the First Amendment, as if it were valid only if used in the service of the Left. The American Civil Liberties Union, once the stalwart defender of the free-speech rights of Nazis as well as labor unions, has recently signaled that it will not expend resources defending anyone associated with a cause that the liberal group opposes.
The result is an atmosphere where the actions of John Adams — the legal defense of the despised — either are impossible or result in serious censure.
Ironically, Sullivan and Robinson recently left Weinstein’s team owing to a schedule conflict. But the damage to their reputations at Harvard is already done.
If lawyers defend only those who are in tune with fashionable opinion, the result is a blow to the concept of impartial justice. The decline of a belief in due process on college campuses isn’t new. But the fact that contempt for the right to counsel is so widespread at a place like Harvard, bodes ill for the future of American justice.
