☰ In this section

The Champion

Current Issue , Page 05 

Search the Champion Looking for something specific?

Access to The Champion archive is restricted to NACDL members. However, this page and others deemed to serve the public interest - as opposed to a narrower benefit to the criminal defense profession - are left unprotected for access by all interested persons.

From the President: In Defense of the Defense of the Unpopular Defendant: Rehashing the Same Old Arguments Regarding Constitutional and Morally Mandated Advocacy in the 2019 Era of the Hashtag

By Drew Findling

Read more From the President columns.

In the case of lawyers, counselors and advocates, the duty to the client remains static, even as the identity of the client is consistently and constantly interchangeable. Amongst members of the bar, the notion that a lawyer can advocate passionately for a particular client or case and then “switch it up” with the next client and argue something completely different is accepted and routine. In fact, it is the best practice to determine what arguments (within the constraints of law, ethics, and reason) work best for each situation. Lawyers understand that we neither absorb the attributes of our clients nor necessarily accept or condone their actions or worldview. Notwithstanding how well members of the bar understand this concept, the general public often struggles with it and will try to attach the attorney with the client and/or cause. While this is true for all areas of the law (civil counsel for major pharmaceutical companies, tobacco companies, and oil companies can empathize), this applies most particularly to criminal defense attorneys.

This is not a new battle. Every half a decade or so there seems to be an appeal to the public discourse about how and why citizens accused of crimes are guaranteed effective representation under the Constitution of the United States no matter who they are and what they are alleged to have done. Long before the modern news cycle, a lawyer’s role in a publicly disfavored case was debated and defended. In a 1982 Yale Law Review article titled “The Moral Right to Defend the Guilty,”1 even at that time, before discussing the issue, the author noted that “this is by no means a new subject in itself.” In fact, the author then turned to a murder trial in London from 1840 to illustrate his point:

[J]ust before the opening of court [he] called his counsel to the bar and confessed his crime. He nevertheless insisted that they should defend him. Mr. Phillips at once refused to go on with the case, but at last yielded. … The same line of defense was continued, and on the third day Mr. Phillips made a lengthy and powerful argument. In spite of it all, Courvouisier was convicted and afterward confessed. For the part he took Mr. Phillips was most strongly condemned by a leading newspaper; not for going on with the case, but because — it was said — by his acts and words he threw the whole weight of his personal character and affected belief into the scales; blasphemously called God to witness the innocence of his client; and cruelly tried to throw the blame upon the other servants and the police.2 

This need to defend a lawyer’s defense of an unpopular defendant has been brought up in nearly every highly publicized criminal case. From Nazi war criminals in the Nuremberg trials to attorneys representing accused terrorists being held at Guantanamo Bay.3 From Charles Manson to Timothy McVeigh4 and Bill Cosby.5 The list goes on and on. The publicly visceral reaction to any “defense” of those who are deemed to be indefensible goes way back in time even to before the founders of the American justice system and the well-known representation provided by John Adams for soldiers during the Boston Massacre trials in 1770.6 

Personal vitriol focused on lawyers when their cause is despised was a major issue during the Civil Rights Movement when civil rights attorneys faced not only criticism, but also physical danger from certain groups:

Nevertheless, the lawyers’ lesser visibility did not protect them from the many dangers of doing civil rights work. Segregationists recognized that the lawyers posed a threat to the racially discriminatory system. So, they included the lawyers in their counter-movement, seeking to eliminate the lawyers, in hopes of undermining and defeating the Civil Rights Movement. As a result, the lawyers and their families also faced significant risks. Their roles called for great courage.7 

The damage that was done in the 1950s and 60s could have been exponentially increased with modern day access to technology and information. This is the only real difference now as opposed to the countless times before that our profession has been lambasted. The average citizen can access information at an instant and voice an opinion on any subject where it might have been previously left to print and television media. In a Twitter/Instagram/Facebook hashtag environment, people can access the most recent information regarding a case that they are interested in at a moment’s notice, but people also can access information regarding who the attorneys are, where their offices are located, and much more. Even when physical threats may not be an issue, internet harassment, defamation, public pressure, and other new ways to go after someone have never been easier.

We have recently seen attacks on public figures who have been “discovered” to have represented such “disfavored” criminal defendants in the past. In the political realm, both Hillary Clinton and Tim Kaine were the subject of such attacks in the last election. They were smeared as unethical or debased because they defended individuals accused of a crime. As we have had to countless times before, we had to stand up and remind the public about our basic constitutional rights as citizens and the very foundation of our criminal justice system, which is built on the right to counsel.8 

So here we go again, this time we come to the defense of Ronald S. Sullivan Jr., an accomplished attorney, professor of law, and faculty dean at Harvard Law School. One of his clients in his private practice just happens to be someone who has been accused of crimes and is not currently a popular figure in the public arena — Harvey Weinstein. A criminal defense attorney representing a criminal defendant is not particularly noteworthy, but the commentary of a number of Harvard students who are protesting this representation and the response of the Harvard administration to this student criticism is uniquely disturbing.9 A small number of vocal students decided to protest their professor taking on this role and write about their protests in the student news publication, The Harvard Crimson. Those students did not stop there. They vandalized a dormitory where Dean Sullivan lives and started a Change.Org petition for him to step down from his position as a faculty dean.10 Instead of being reminded about the Sixth and Fourteenth Amendments to the U.S. Constitution, instead of being reminded that an attorney who is upholding his ethical and professional responsibilities to a client should always be respected, and instead of being reminded that if clients are facing substantial criminal penalty and being publicly reviled they are even more in need of competent counsel, the Harvard administration gave credence to these complaints by ordering a “climate review” to determine the effect this representation was having on students. This response by the school is deplorable.

Any criticism or skepticism regarding Dean Sullivan accepting representation of this particular client must be spoken out against and disregarded. Such disapproval and apprehension are just a continuation of the same attacks we have seen countless times in the past. This response is not new. What is new and hopeful is that lawyers and nonlawyers alike from across the country have come to the defense of Dean Sullivan in a variety of different articles and opinion pieces.11 Just as people can express their displeasure when defense lawyers represent unpopular defendants, having access to media can equally be used to speak out against those who seek to disparage our honorable profession. We can now fight personal, internet, or social media attacks with our own well-researched posts. Our hashtags have constitutional authority behind them.

Notes

  1. George D. Watrous, The Moral Right to Defend the Guilty, 2 Yale L.J. 44 (Oct. 1892-June 1893).
  2. Id. at 52.
  3. Nancy Hollander, A Terrorist Lawyer, and Proud of It, N.Y. Times, March 26, 2010, available athttps://www.nytimes.com/2010/03/24/opinion/24iht-edhollander.html?mtrref=undefined&gwh=C0C44093EECFA103E0D6BDC171EF1B14&gwt=pay.
  4. CBSNews.Com Staff, McVeigh’s Former Lawyer Speaks Out, June 11, 2001, available athttps://www.cbsnews.com/news/mcveighs-former-lawyer-speaks-out.
  5. Chris Francescani, How Bill Cosby’s Defense Team’s Vicious Strategy Backfired: Analysis, April 28, 2018, available athttps://abcnews.go.com/US/bill-cosbys-defense-teams-vicious-strategy-backfired-analysis/story?id=54784938.
  6. John Adams, The Trial of William Wemms, James Hartegan, William M’Cauley, [and others] … for the Murder of Crispus Attucks[and others], … Superior Court of Judicature, Court of Assize, and General Goal Delivery … Taken in Short-Hand by John Hodgson, available athttps://founders.archives.gov/documents/Adams/05-03-02-0001-0004-0016.
  7. Leonard S. Rubinowitz, The Courage of Civil Rights Lawyers: Fred Gray and His Colleagues, 67 Case W. Res. L. Rev. 4 (2017).
  8. Barry J. Pollack, Don’t Attack Lawyers Who Defend Criminals, USA Today, Oct. 12, 2016, available athttps://www.usatoday.com/story/opinion/2016/10/12/hillary-clinton-tim-kaine-criminal-defense-lawyers-attacks-column/91905114.
  9. Conor Friedersdorf, In Defense of Harvey Weinstein’s Harvard Lawyer: Ronald S. Sullivan Jr.Is Upholding a Vital Civic Good, The Atlantic, March 3, 2019, available athttps://www.theatlantic.com/ideas/archive/2019/03/defense-harvey-weinsteins-lawyer-ronald-sullivan/583717.
  10. Shera S. Avi-Yonah, Delano R. Franklin & Aidan F. Ryan, HUPD Investigating Winthrop House Graffiti Calling for Sullivan’s Removal, Feb. 26, 2019, available athttps://www.thecrimson.com/article/2019/2/26/sullivan-throp-graffiti.
  11. Faith A. Jackson, Dean Sullivan Deserves Applause, Not Admonishment, Feb. 14, 2019, available athttps://www.thecrimson.com/article/2019/2/14/jackson-sullivan-deserves-applause/; Conor Friedersdorf, In Defense of Harvey Weinstein’s Harvard Lawyer: Ronald S. Sullivan Jr.Is Upholding a Vital Civic Good, The Atlantic, March 3, 2019, available athttps://www.theatlantic.com/ideas/archive/2019/03/defense-harvey-weinsteins-lawyer-ronald-sullivan/583717.
About the Author

Drew Findling is principal of The Findling Law Firm, which he founded after serving as an Assistant Public Defender in Fulton County, Georgia. He has tried federal and state criminal cases throughout the United States and has spoken in CLEs in over 40 states. He is a recipient of the Heeney Award, the NAACP’s Civil and Human Rights Award, a commendation by the Legislative Black Caucus of Georgia, and GACDL’s Indigent Defense Award.

Drew Findling (NACDL Life Member)
Findling Law Firm
Atlanta, Georgia
404-460-4500
drew@findlinglawfirm.com
www.findlinglawfirm.com
@drewfindling
@drewfindling 

Advertisement Advertise with Us
ad

In This Section

Advertisement Advertise with Us
ad