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The Harvard Law School Professor Ronald S. Sullivan, Jr., Defends His Decision to Represent Harvey Weinstein

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Ronald S. Sullivan, Jr., a clinical professor at Harvard Law School, is among the most high-profile criminal-defense lawyers in the country. Sullivan represented Aaron Hernandez in his acquittal for a double homicide, and helped the family of Michael Brown reach a $1.5-million-wrongful-death settlement with the city of Ferguson, Missouri. Sullivan has also devoted much of his career to representing less privileged defendants: he is the director of the Criminal Justice Institute at Harvard Law School and previously served as the director of the Washington, D.C., Public Defender Service. In the wake of Hurricane Katrina, he helped free thousands of Louisianans who had been incarcerated without due process.

Sullivan is also the first African-American faculty dean at Harvard, and this position, combined with his latest case, has landed him in an escalating controversy. In January, Harvey Weinstein announced that Sullivan had joined his defense team. Some students revolted in anger, protesting Sullivan’s decision and signing an online petition saying that he should resign as faculty dean of Winthrop House. In response, Sullivan wrote an email to Winthrop residents, describing the importance of representing “unpopular defendants”; he went on to appoint a new point person in the residential college for conversations about sexual assault. This did little to quell students’ concerns, and last week Harvard College announced that it would conduct a “climate review” of Winthrop House, which could lead to administrative action.

I recently spoke twice by phone with Sullivan to discuss his career and his decision to represent Weinstein. During our conversations, which have been edited for length and clarity, we also discussed the state of campus debate and his belief that racism contributed to Harvard’s decision to conduct the climate survey.

Why did you decide to represent Harvey Weinstein?

I have been a criminal-defense lawyer since I started as a public defender in Washington, D.C., in the mid-nineties. I represent any number of people charged with crimes across the country.

Is there some reason you chose him? I imagine you get a lot of opportunities.

I had some discussions with lawyers who represented Mr. Weinstein and then had a discussion with Mr. Weinstein. As a result of those discussions, I decided that this case was sufficiently important to the rule of law that I decided to take it on.

It was something about its importance to the rule of law that you feel like you can’t get into? Is that what you’re saying?

Correct.

Okay. I assume you are being paid for this.

I don’t discuss fees with respect to any client.

I talked to someone who’d done work with public defenders, who obviously knew of your work and looked up to you. She texted me, “The main question I have is, public defenders are clear that they represent people without power in the system.” What is your response to that?

I think that is accurate. Public defenders represent people without power in the system. I’m not aware of any criminal defendant who has power in the system. That is particularly true with respect to criminal defendants who are very unpopular. They tend to be the least powerful people in the system. In that respect, this representation is consonant with the representation I’ve engaged in all my life.

Do you think that is true even with white, rich, powerful defendants who are unpopular? Do you think they are still at a disadvantage?

Absolutely, because they walk into the court with the presumption of guilt, as opposed to the presumption of innocence. And it is important to note that, even with rich defendants, their resources pale in comparison to the resources of the government, which has an entire prosecutorial office and law enforcement at its disposal. Even rich people are at a resource disadvantage walking in, so the popular mythology that you can buy justice really doesn’t apply in the criminal context.

If someone said to you, “Harvey Weinstein could get a public defender just like anyone else if he can’t get anyone to represent him,” what would be your response to that?

That is true.

And/but?

No, it is true. Anyone who cannot afford counsel can get a public defender. I’m not making any representations as to what he can or can’t afford.

Maybe I should rephrase the question as: What do you say to people who say Harvey Weinstein should just get a public defender rather than having great lawyers sign up to work for him?

I personally have difficulty with that formulation, because I think that public defenders are among the best in the country in trying very difficult cases. They’re trained to do it. They do it all the time. I don’t think there’s a necessary dichotomy between public defenders and great lawyers. To the extent that your question is: Am I the only lawyer who can represent Mr. Weinstein, the answer is clearly no. That’s never been the argument I have made. I have respectfully suggested that I have represented people, both indigent and non-indigent, who are accused of very serious crimes. I think the system as a whole is better for such representation. But you are correct that criminal defendants have choices in their lawyers.

Do you have concerns about representing people accused of sexual misconduct, because the defense of these people so often takes the form of disputing women’s stories, making women out to be liars, calling their credibility into question?

A hypothetical case could have that potential. I do not see that sort of conflict in this case. And that’s as far I can go.

Does it bother you that these types of accusations are often responded to in this way?

It’s hard to answer that in the abstract. It’s unethical for a lawyer to make that sort of insinuation without a good-faith basis. So if the question is whether one can willy-nilly attack credibility of complainants, that answer is no. There are a range of potential defenses in any sort of case, including sexual assault cases, all of which do not rely on contesting credibility of complainants. Some clearly do, but others do not.

I know you are going to be resistant to talking about Weinstein, but other lawyers of his have said women were not telling the truth. Ben Brafman, who no longer represents Weinstein, wrote in a letter to the judge that “many of these women have lied,” in December.]

I don’t have any comment on what other lawyers have said. I only represent him on this case, and I can’t comment on trial strategy.

When did you get a sense that this would be controversial with a lot of people at Harvard?

I’m not sure if it’s a lot of people, and I think that’s important to note. You have the numbers at your disposal of protesters versus the seven-thousand-student undergraduate population. I’ll leave that to you. I got a sense that people were genuinely aggrieved at the decision after the media broke the story.

You’re saying that you don’t think this was an organic controversy but that the media whipped it up? Obviously no one’s going to find out until it’s reported, so what do you mean by that?

You asked me when did I become aware that people were upset. I became aware when people voiced displeasure. The point in time when that happened was after the media broke the story. No, I was not suggesting that the media whipped it up.

That’s almost tautological, that people are going to become upset after they became aware. This is very lawyer-like here. You’re getting me to focus my questions better. What were the first signs that people were upset? How did those manifest themselves?

I got a few emails from people that some students were having social-media discussions about the case or about my representation. Once I got those emails, I immediately responded to the house with some thoughts about the representation. I feel as though I’m not answering your question, but I’m not trying to be difficult.

I did not anticipate this reaction prior to taking the case. The reason I did not anticipate this reaction is because, the semester before, I tried the sexual assault case against the governor of Missouri. I was the lead prosecutor in that case. Previously, I had tried a double-murder case. I had represented the family of an accused terrorist. My thinking at the time was that people in Winthrop House were quite well-aware of my academic work as a criminal-law teacher and as a criminal-law practitioner. I was personally surprised by the reaction with respect to this client. Once I became aware of some students’ discomfort, then I immediately addressed the entire Winthrop House population and started a conversation about the representation.

In your private conversations, what have you come away with? Have people said anything that you thought was convincing or has made you think twice about it?

I do recognize that some students are genuinely upset with the decision to take the case. They are concerned with the allegations that are lodged against my client, and they are concerned that this will somehow impact the atmosphere at Winthrop House. Those are the major concerns. I should say even more precisely, some students are concerned that people will be less inclined to speak about sexual assault in the house. I take any genuine student concern very seriously, even if those such concerns do not represent the majority of students in the house. It’s an important voice, and it’s one that I’ve listened to and continue listening to.

As a professor, I am at the root a teacher. Part of my response has been to acknowledge the genuine feelings of some of my students and encourage an open, free, frank, robust conversation about issues regarding sexual assault, but also issues regarding our long-standing constitutional traditions of due process and fair representation of clients. I do believe that the two can be meaningfully separated. That is to say: lawyers are not extensions or alter egos of their clients. Also, lawyers do not represent the ideology of their clients. Rather, lawyers are engaged in a long-standing tradition of service to people accused by the state. Just as surgeons don’t decline to work on people because they’re bad, lawyers too have these same obligations once they undertake a representation.

When you explain that to some of these students who are upset, what is their response?

‘Explain’ would be strong. I have been in conversation with many students on multiple dimensions. One dimension is the constitutional aspect of it and the long-standing U.S. traditions that really require the sort of work that I do. The other dimension has to do with people feeling as though they are able to express themselves, and more specifically express themselves about sexual assault within the house setting. I have given equal time to both of those dimensions.

I’ll start with the latter. It is important for students to feel as though they can discuss any topic in the house. I’ve reassured them of that. Those conversations go something like this, that your dean, Dean Sullivan, has represented over the years very many women who have been victims of sexual assault, that I’ve represented Winthrop students, women Winthrop students, who have been victims of sexual assault. [Sullivan added that he has represented Winthrop students both at Harvard and in court proceedings.] I’ve also pointed them to some of my work as part of a team of scholars who have been going about the business of redrafting the Model Penal Code’s sexual assault provisions, which are very much outdated.

It makes me wince a little bit that someone who is representing any client that they perceive as deserving of a fair trial should have to explain or even prove their bona fides to not get attacked for it. Even if you had done none of these other things, it seems important to uphold the principle of what you laid out in the first part of this interview. There’s some degree in which I feel like if you’re laying out these other things, you’ve already conceded somewhat of the argument.

I think that’s a fair argument for the adults in the administration and my colleagues on the faculty. Part of what’s at stake here is this aspect of teacher/mentor. There are some who may not have thought about the full range of issues that are implicated here. In the university setting, my intent is not to be didactic but rather, to engage in a series of conversations with people. Hopefully, over the course of those conversations, we can come to some form of a meeting of minds. Of course, given my long history of social-justice work, it is a very strange position for me to be in, to have people justifying my bona fides, but it is what it is. We are here now. Part of my role is to engage the students rather than talk at them.

I read the editorial in the Harvard Crimson, which was very wishy-washy about this, which I guess I probably wrongly assumed was indicative of larger student opinion. It seems like maybe you’re not saying that. [The editorial said, “The students of Winthrop deserve a personal acknowledgement from Sullivan that his decision might make some students feel estranged from the House community.”]

I am definitely not conceding that.

Okay. Your sense of things is that there is a large chunk of students at Winthrop House that support you and that this is more of a loud minority?

I won’t comment on the latter, but the former I believe is absolutely true. There are large chunks of Winthrop students who either affirmatively support the decision, or, two, are frankly indifferent to the work that I do outside of the house. Indeed, a group of students asked whether I would charter a bus for them to come down and watch the trial. I declined that request, but it just gives you a sense of the range of opinions within the house.

Do you feel that any of the attacks against you have been racially motivated?

Yes.

Specifically?

No faculty dean in the history of the house system has been subjected to this sort of process in the middle of some pending controversy. It’s just never happened before.

You mean the process of the students being upset or of the faculty saying they’re going to look into it?

No, this climate survey. It’s absolutely never happened before, and I do not believe that it would happen again to any non-minority faculty dean. We could imagine, for example—and these sorts of things have happened—that conservative Christians have a moral disagreement with homosexuality based on their reading of the Bible. Those students could say, “We therefore don’t feel comfortable speaking about issues of sexuality with faculty deans who are in a same-sex relationship.” The university would never engage in a climate survey or any investigation with respect to that issue. They just wouldn’t do it.

[A spokesperson for Harvard said that “the College and FAS have standard processes in place to collect information when climate concerns arise in a faculty-led unit, such as a residential House,” and pointed out that the college conducted an internal investigation into one of its houses, in 2015, in response to concerns that it was unwelcoming to L.G.B.T. students.]

Is this on the dean of Harvard College, who launched this survey, or is this in response to student pressure? Do you blame the administration, or do you think that the students forced his hand?

No, students have every right to protest. It’s in the nature of students to protest. The adults in the room, however, do not have to react in the way that they have.

Do you think that any of the student protests were racially motivated or racially tinged?

I don’t know. I’ve gotten several notes that there was this racially offensive caricature of me in a drawing that some of the students did. Several students are quite offended by it. I didn’t see the thing personally, but I’ve just gotten tons of notes about this smiling caricature of a guy that people found to be racially loaded. I don’t otherwise have any evidence of students with racial animus.

There’s been a lot written about political correctness running amok on campus the last few years. Do you consider this an example of it? Has this incident changed the way you think about that larger issue?

To the first part of your question, the term political correctness has so much freight that I’m going to choose my own term and say that this situation is a particular instantiation of a larger threat to both academic freedom and the norm of open and robust exchange of ideas that have typically characterized universities. It has not changed my thinking, because I have long been concerned with forms of silencing that go on in the university space with respect to people who have different ideas. I have gotten scores of notes from students who very quietly give strong support to me, and I appreciate those notes. But one constant is that they say that they feel as though they cannot say anything publicly because they will be tarred and feathered as “rape sympathizers” and that they’re disinclined to step out publicly. This sort of thing has no space in the university. People have to be able to exchange ideas, even ideas with which they disagree, freely and openly. That’s that.

The other thing I want to say is that we can’t lose sight of the fact that one of the reasons this is so troubling is that I am not personally accused of engaging in any misconduct. Given the pitch that the administration has allowed this to continue at and increased, one would think that I had engaged in some form of misconduct with a colleague or a student. That’s the furthest thing from the truth. This is all some vicarious association with a client whom several in our community don’t like. If that becomes the new standard-bearer, then we’re going to see continued threat.

What do you say to people who say that this role at Winthrop House is specifically a role in these students’ lives, and it’s about making a community, it’s not about the classroom, and so the standard should be a little different?

I say it is correct that it’s not just about the classroom, but it’s not just about being a thermometer and registering the temperature of students at any given time. Rather, it’s about being the leader of a living learning center where we live together and we learn together. This is Harvard University. Ideas have to continue to be paramount. To the degree that we police certain ideas and don’t police others, we are in trouble as a university. That pains me the most.

As evidence of that, I think I told you at the beginning, last year I tried a very high-profile sexual-assault case in Missouri. Not a peep from the administration about this being antagonistic to the pastoral role of the faculty dean. This feels very much like a form of content policing from administrative voices. If it were a problem, it would’ve been a problem earlier, which leads me to think that this has everything to do with a small but vocal group of protestors. Look, one has to take seriously the concerns of students. But from the vantage point of a professor and administrator, you also have to ensure that the university is a space where multiple ideas can exist and that other students aren’t silenced.

It would make a very good movie. Do you know any producers?

My goodness. Oh, that’s funny. Okay. Was that a joke?



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