as “shocked and excited” over what one characterized as a victory “against rape culture.”
Weinstein had not faced criminal prosecution for the accusations by Hollywood actresses that sparked the #MeToo phenomenon in 2017, so the New York case invariably symbolized a reckoning for all his alleged bad acts. It became a symbolic substitute as well for all the actions never taken against all the accused whose names have tumbled through public space since #MeToo emerged, including and maybe especially Donald Trump. This substitution effect typifies cases involving public demons. Since Weinstein is a public demon, his case raises a challenge that is central to the case of every hated defendant, a challenge that should have been decisively met in 1989 in New York but was not, and to which Sullivan adverted when he told students, “It is particularly important for this category of unpopular defendant”—one who is seen as “guilty, … vile or undesirable”—“to receive the same process as everyone else, perhaps even more important.”
Sullivan was being a teacher in that moment. His statement was an attorney’s affirmation of the principle of equality under the law, but as a former public defender and a longtime advocate winning freedom for the wrongfully convicted, he knows that in practice “everyone else” is not an undifferentiated category, and the accused don’t all “receive the same process.” Moreover, he knows that his audience knows this too. So, the statement implicitly provoked questions, ones that inhere in the application of the law, particularly criminal law. Those questions presume a continual public wrestling. One can picture an open-ended dialogue for many voices.
How can you talk about a “category” of defendant, as if that category transcends race, sex, class and histories of oppression? … The law is embedded in those histories, of course, because it is embedded in history, and the world is full of oppression; pushing toward equality is a political project. Equality has to be the principle … I’m sorry, there is no equality; the system is rigged, and talking about Weinstein as just another defendant evades his real power in the world … Does rigging our concept of justice against the despised person and attacking his lawyer advance equality? I don’t see the evidence; there’s been a lot of despising going on … There’s been a lot of rape going on, too; there is no justice for women … There’s no justice when you’re accused of a sex crime. Bam! you’re guilty … We have to respect the suffering victim of any crime, and we have to protect the rights of the criminally accused. There’s a tension there, and we can’t ignore it. As a society, we tend to ignore it in high-profile cases with defendants who are extremely unpopular—which is why what happens in those cases, when guilt is presumed and everyone is watching, is so important … It’s a measure of any society, how it treats the “damned and despised” … And it’s not a measure how it treats women’s suffering? Women haven’t been believed, and have been essentially tried for coming forward. That’s not a problem? … That is a problem, and the legal system must be accountable. People’s fates can’t be based on belief, though. Women are defendants too. Women are the mothers of defendants. Everyone wants to be believed; how do you resolve that? … Shit, there are people every day who go before a court, and every day face the prospect of suffering because no one’s going to believe them; most of them never get a trial, they fill the prisons. They’re not all nice people, but we should care that they are effectively denied their rights … You’re talking about people who are poor and powerless. That’s structural injustice, but so is letting a criminal buy his way out because he can afford a fancy legal team. No crime victim wants to see that … You shouldn’t say “criminal”; that’s for the state to prove … The state can be wrong. Popular opinion can be wrong … Not about Weinstein … Let’s not talk about Weinstein, but we should talk about power. No criminal defendant has power in the criminal justice system, and no defendant, however wealthy, can match the resources of the state. This is crucial. If we can’t see the defendant, irrespective of person, we can’t properly see the state—its awesome power to police, prosecute and punish, a power that by its nature, also irrespective of persons, establishes a fundamental conflict between the state and every individual … Yeah, if you’re in the dock, you better believe you want a strong advocate, because if the state is going to exercise its ultimate power over your life, it better have to prove its case … That’s the problem: power over your life. Most exercises of male power aren’t in the courts and never will be. That’s patriarchy. That’s the issue … Struggles for justice aren’t discrete things. Due process, presumption of innocence, burden of proof—as terms they sound analgesic, like aspirin, or cruelly absurd because of all the times people, especially poor people and minorities, don’t get them. But they exist in contested history, where rights are not conferred; they, too, are the product of human struggle against oppression and unchecked power. That struggle is continuous and exists simultaneously on many fronts. So, we should be asking, What responsibilities does it demand of the citizen? …
Some version of that dialogue was not organized following Sullivan’s statement. Protesters said discussion was beside the point. They weren’t denying Weinstein’s right to the representation of his choice; he could choose many lawyers, they said, but Sullivan shouldn’t be one of them, because his participation could be “trauma-inducing” for Winthrop residents (the term from a student on the Crimson, not a Winthrop resident). Rather than an invitation to intellectual work, Harvard’s administrators sent students questionnaires: is Winthrop House “sexist,” “non-sexist,” “hostile,” etc.? Those are standard to the Title IX process, as is confidentiality, and it is argued that Harvard was legally bound to begin the process. What emerged as a result, though, were two principal forums for speech: one, the investigation, conducted in secrecy (unavoidably, and for reasons that are understandable regarding allegations of impropriety but at odds with a dispute over the compatibility of professional roles); the other, a noise machine that, though prompted by politics (the pariah status of a criminal defendant) and fueled by politics (the energy of #MeToo), then proclaimed that the demand to remove the deans had nothing to do with politics.
None of Sullivan’s antagonists spoke of guilt by association; these are liberals, and that term is too bonded to the anticommunist witch hunts of the 1950s. They spoke of fear and security. They said Sullivan and Robinson must go. They did not speak of disloyalty, but their words bore its whiff: protection is the first duty of deans, and by putting defense of a dangerous man ahead of the chance that some students might thereby feel endangered, Sullivan was shirking his duty. However much that may comport with a conception of Harvard house masters in loco parentis, one might reasonably ask how criminal defense attorneys can ever be good parents to actual children if the rational basis for feelings of fear cannot be challenged.
Students picketed Winthrop House with tape across their mouths; meanwhile, Sullivan said he’d received notes of support from other students, some saying they feared reprisals if they spoke publicly. After Sullivan and Robinson were ousted, one of the protesters’ allies in the press, Lucy Caldwell writing in The New Republic, described Sullivan’s statement about unpopular defendants as “intellectually dishonest, if not downright nefarious” and “condescending.” Students know all about how the criminal justice system works, she argued; they also know that Weinstein is a wealthy, powerful man. Earlier, one of Sullivan’s Law School colleagues, Jeannie Suk Gersen, had written in The New Yorker:
In the thirteen years that I have been a law professor, teaching and writing on criminal law and sexual assault, I have regularly provided legal counsel: both to alleged victims and to people facing allegations of wrongdoing at school, in the workplace, or in the legal system. 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.
Caldwell wrote that Sullivan’s supporters were deluded to think they were defending academic and professional freedom: “instead, they’re defending a status quo that has caused so many women to suffer for so long.”
Sullivan and Robinson are black.
