Why We Need Due Process of Law

When the Obama Education Department threatened universities with a loss of funding if they did not institute kangaroo courts to punish any male who was accused of sexual harassment, many Harvard Law professors stood up and denounced the attack on due process. Without due process of law accusations become irrefutable and the accused are summarily punished, rightly or wrongly.

The Trump Education Department has rolled back the Obama assault on due process, but it lives on. The attacks on Supreme Court Justice Brett Kavanaugh showed no concern for due process of law. The goal was to destroy a man, his life work and his family… for the crime of being a Roman Catholic conservative. In so way was the debate about judicial philosophy.

Worse yet, now, the #MeToo movement has morphed into a cultural revolution, of the sort that we last saw in China during the time of Mao. Anyone who is accused of sexual harassment and sexual assault is presumed to be guilty. Any lawyer who dares defend the accused will be attacked and hounded… punished for the so-called crime of being a defense attorney. It is totalitarian practice. It must be called out and put down. Thus, we applaud Harvard Law Professor Jeannie Suk Gerson who does just that in a piece for The New Yorker.

The man accused of sexual harassment and sexual assault is Harvey Weinstein. You know the case. It need not be repeated here. The problem is not Weinstein as much as it is Harvard’s reaction to the fact that Harvard Law Professor Ronald Sullivan has chosen to join the defense team. Sullivan is also a faculty dean at an undergraduate house. And he is African-American. We might question the value of defending a Harvey Weinstein, but, in truth, criminal defense attorneys cannot do their jobs if they only defend the innocent and the savory. By definition, they often find themselves standing up to defend the due process rights of appalling individuals. They do not do it because they condone the actions that the defendants were accused of perpetrating, but because they know that due process is what stands between us and lynch mobs.

Now, Harvard’s own Red Guard students have attacked Sullivan. Not surprisingly, the administration has caved into their complaints, and wants to conduct something called a “climate review.” Apparently, this has nothing to do with global warming. It has to do with the deviant notion that a lawyer who defends an accused rapist is condoning rape and thus is creating a hostile environment, one in which students do not feel safe.

Suk Gerson explains what happened:

It was decidedly unfunny, last month, to see the words “Down w Sullivan!” spray-painted on the doors of Winthrop House, the residence of Ronald S. Sullivan, Jr., the first African-American faculty dean of an undergraduate house at Harvard. (Sullivan is also a colleague of mine at Harvard Law School and a renowned defense attorney.) In January, he announced that he had decided to represent Harvey Weinstein as defense counsel in Weinstein’s upcoming trial for rape. In an open letter to the Winthrop House community, Sullivan explained that it was a defense lawyer’s duty to insure that the most hated individuals in society receive the fair legal process that is due to anyone against whom the state’s punitive power is arrayed. Student groups, including the editorial board of the Harvard Crimson, condemned his choice, and some students demanded that Sullivan be removed from his position as dean because his decision to be Weinstein’s lawyer made them feel unsafe and posed a conflict with his leadership role in the Winthrop House community.

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.

So, for the action of defending an accused criminal, that is, for doing his job, Sullivan is threatened with a loss of his position as dean. Suk Gerson takes the occasion to remind us that the American judicial system does not always punish miscreants. It is less about doing justice, as Justice Holmes remarked, than about playing by the rules. Thus, the system is designed to defend the rights of the accused, even if this allows a criminal to go free:

But, as any lawyer knows, many #MeToo cases will not end in legal vindication. Why not? Because the alleged behavior doesn’t match legal definitions, or because of statutes of limitations, or insufficient evidence, or questionable witnesses, or police misconduct, or prosecutorial overreach, or doubtful juries—in short, for all the reasons that cases can fall apart when subjected to scrutiny in court. When defense lawyers do their job, one effect is to make it harder for the government to impose suffering on their clients, whether innocent or guilty. This is a notion that most liberal Americans like, when we talk about mass incarceration or the war on drugs. It is often less comfortable in the context of #MeToo.

But now, our Red Guards are not merely calling for the presumption of innocence to be replaced by the presumption of guilt. They are now attacking lawyers like Sullivan, lawyers who dare defend those presumed to be guilty. Anyone who declares that such people have rights is assumed to be contributing to a hostile cultural environment where men will be more likely to rape.

In the past year, the climate for such work has changed. There is now such a stigma attached to people accused of sexual misconduct that anyone who defends legal principles on their behalf risks being mistaken, in the public mind, for a defender of sexual violence. Lawyers have always been vilified for taking on unpopular clients, but, in the #MeToo era, defense lawyers endanger their good standing even in the most liberal communities, Harvard being only one example.

The Red Guards will tell you that they believe in human rights. And yet, they do not believe that anyone accused of a sex crime has any human rights. Thus, such people are classified as subhuman. Associating with one of them, consorting with the ostracized, makes one a co-conspirator.

Suk Gerson continues:

As a matter of constitutional law, denying someone a defense lawyer is depriving that person of their rights, especially if the risk of punishment is involved. Just as crucially, a world in which lawyers are afraid to defend people against a certain kind of accusation is a world in which those accusations can never really be tested or verified, where guilty verdicts bear the whiff of a sham. When I was a prosecutor, I represented the state. Now, as an academic, I teach my students to be proud of their work whether they are prosecuting or defending those accused of crime, whatever the crime may be. Punishment is only legitimate if it is grounded in due process, I tell them.

Now, a threat hangs over all defense attorneys, and even over those who opine on such matters. You never know when the mob is going to turn on you:

I hope I have not declined any client or held back any writing for fear of reprisal, but I can’t deny that it lurks in my mind. This is true even though I, unlike many other lawyers and writers, as a tenured professor do not experience strong disapproval as a threat to my livelihood….

A chill has descended on our intellectual lives—on the positions we feel free to question and express. If it is implicitly understood that statements running counter to #MeToo orthodoxy, including defense of the accused, may provoke reprisal, then surely those statements are less likely to be made and heard. Why risk the loss of acceptance, reputation, or even employment, merely to explore an idea?

Of course, this is creeping totalitarianism, imposed by those who insist that they believe in the highest of democratic ideals:

In this moment, the real lesson is about free expression and free minds. When the views of thinking people, whether lawyers, teachers, editors, or writers, are determined by our self-assessed risk of losing jobs or social standing, it doesn’t take a totalitarian government to repress our thoughts. We have done it to ourselves.