By Harvey Silverglate and Monika Grec

  • This piece was originally published by WGBH News/wgbhnews.org

Criminal defense lawyers have long been demonized for representing unpopular clients. But two high-profile sexual assault prosecutions have exacerbated the public’s disdain, to the extent that a widespread misapprehension has emerged—namely, that criminal defense lawyers, in defending those the public has deemed indefensible, somehow become complicit in their clients’ alleged transgressions, or somehow take on whatever moral failings their clients may have.

This sentiment reveals a fundamental confusion about the crucial role of the defense attorney in the criminal justice system, and could very well lead to an erosion of the constitutional rights of criminal defendants. If the most talented and in-demand criminal defense lawyers begin to hesitate before agreeing to represent the most unpopular accused, then those who are in the most trouble—those who need the most vigorous and effective defense—would have to suffer with mediocre representation (and, it must always be remembered, some of them will turn out to be innocent).

The Sixth Amendment to the federal constitution speaks succinctly and with clarity on the subject. In addition to a defendant’s right to be advised of the charges against him (or her, as the case may be), he has the right to be confronted (in court), face-to-face, with his accusers; the right to compel witnesses to appear and give testimony; and, last but hardly least, the right “to have the assistance of counsel for his defence.” This right of the defendant has produced an informal but widely honored professional and moral obligation, within the judicial system and the bar, urging lawyers with the appropriate skills to represent even the most heinous defendants.

The fact that the evidence against a particular defendant might be—or at least seem to be—damning or overwhelming does not dilute the obligation cast upon the criminal defense bar. The fact that there are many who are either ignorant of or unsympathetic to this constitutional right does not alter the fact that lawyers have a special obligation to give vitality to the right. (Those who wish to look further into the history and contours of the right to the effective assistance of counsel and the lawyer’s professional role might want to read the writings of famed criminal defense lawyer Clarence Darrow. )

Back in January, Harvard Law Professor and Faculty Dean Ronald Sullivan joined the legal team of the notorious Hollywood mogul Harvey Weinstein, who stands accused of sexually assaulting a number of women. In addition to his teaching duties at the law school, Sullivan and his wife Stephanie Robinson served for ten years as residential deans (formerly called “house masters”) at Winthrop House, one of Harvard’s undergraduate dormitories.

Sullivan’s decision to represent Weinstein did not sit well with many on the Harvard campus. Winthrop House was vandalized with the slogans “Down w Sullivan!” and “Whose Side Are You On?”; student protests erupted across the Harvard campus, featuring students with taped mouths who held signs stating “Down with the Dean” and “Remove Sullivan”; and a petition was circulated that called for the removal of Sullivan as Faculty Dean.

Caving to student and public pressure, Harvard’s administration unceremoniously booted Sullivan and his wife from their Winthrop House deanships. (Sullivan retains his tenured professorship at Harvard Law School. Ironically, he is no longer on Weinstein’s legal team, due to a scheduling conflict between the likely date of Weinstein’s trial and Sullivan’s teaching obligations.)

And more recently, famed criminal defense attorney Alan Dershowitz has come under heavy criticism for a plea deal he helped secure for the now-deceased sex offender Jeffrey Epstein more than a decade ago. Epstein, accused of molesting dozens of women (including underage girls), spent just 13 months in a Florida county jail after his legal team (on which Dershowitz played a major role) secured a plea agreement that has come under intense criticism for its perceived lenience. Epstein pleaded guilty to state prostitution charges in Florida; in exchange, he was granted immunity by federal prosecutorial officials from federal criminal charges and the accompanying potential life sentence such charges would carry.

Following Epstein’s 2019 arrest on new federal charges of sex trafficking, renewed scrutiny over Epstein’s previous avoidance of federal criminal charges has caused many to excoriate Dershowitz for his involvement in Epstein’s very effective, decade-old legal defense. Indeed, there seems to be a concerted effort to destroy Dershowitz’ reputation and career: in addition to several hit pieces put out by the media, Dershowitz has suffered severe castigation on social media, especially Twitter. Most troubling are the brazen and outrageous conflations of Dershowitz’ legal defense with Epstein’s crimes.

What is common in these two situations is that Sullivan and Dershowitz, acting as criminal defense attorneys for those the public reviles, have been and continue to be demonized because of the clients they have chosen to represent. Sullivan and Dershowitz will almost certainly continue to honor the commands of the Sixth Amendment and their views of their own professional obligations. But these two are unusually tenacious, self-assured and imbued with a sense of professional and constitutional mission. Their difficulties will almost certainly deter the less brave members of the bar from representing the most reviled. This will surely hamper the ability of those who are in serious trouble – including the certain percentage who will undoubtedly be wrongly accused – to prove their innocence.

Harvey Silverglate, WGBH’s “Freedom Watch” columnist, is a criminal defense and civil liberties lawyer and author in Boston. Monika Greco, Silverglate’s legal research assistant, is a recent graduate of the philosophy master’s program at Tufts University