What Does a Fair Trial Cost?

What do Bill Cosby, Charlie Rose, Matt Lauer, Leslie Moonves, Kevin Spacey, Woody Allen, Dustin Hoffman, James Levine, Charles Dutoit, Peter Martins, John Conyers, and Al Franken have in common?

They are all prominent males whose careers in art, entertainment, politics, and the media have been damaged or ended by accusations of sexual harassment, abuse, and/or predation. In Bill Cosby’s case, the end result of three trials has been the imprisonment of a legally blind octogenarian. In that of Peter Martins, the Director of the New York City Ballet, an internal investigation cleared him of misconduct, but only after the accusations against him had forced him to resign.

Please don’t mistake me. Demanding sex for favors, employment, and protection is no doubt older than civilization, and will probably last our species out. That doesn’t make it any more behaviorally acceptable, and, where misconduct violates statutes or causes civil harm, any less legally accountable. The problem is that, in a highly charged public atmosphere, accusation can become tantamount to guilt, and the law itself distorted.

The Cosby trials illustrate some of the problem. In 2004, Andrea Constand, a former Temple University employee, accused Cosby of having sexually molested her after drugging her drink. The District Attorney of the time declined to prosecute on the grounds of insufficient evidence. Constand filed civil suit, and was awarded a $3.4 million judgment. As part of the settlement, Cosby filed a sealed deposition as to the facts of the matter. Case closed—until Constand, at the urging of a new D.A., Kevin Steele, filed a criminal complaint just before the statute of limitations ran out. When a mistrial resulted, Steele charged Cosby again. At the second trial Judge Steven O’Neill permitted five other women who had accused Cosby of prior assaults to testify against him, a procedure permitted under Pennsylvania law but clearly prejudicial to any defendant since it presented no contestable evidence material to the case in hand. With that, Cosby was convicted.

America is probably no safer with an ailing 81-year-old in prison. American jurisprudence is definitely no better with a sealed deposition from a settled civil case opened in a criminal one, and mere accusation offered as proof.

Which brings us to the latest chapter of our story. Harvey Weinstein, a successful film producer and formerly one of the most powerful men in Hollywood, has, like Cosby, been accused of multiple sexual offenses. Two of them, an allegation of forced oral sex from 2006 and of rape from 2013, will go to trial later this year.

Weinstein, even more than Cosby, has been reviled as the poster boy of the Hollywood couch. The problem this time, though, isn’t the man accused, but one of those defending him.

Ronald S. Sullivan, Jr. joined Weinstein’s legal team in January of this year. An immediate uproar ensued. Sullivan isn’t your usual lawyer for a sleazebag. He is the director of the Harvard University Criminal Justice Center, and with his wife, Stephanie R. Robinson, has been faculty dean of Winthrop House, one of Harvard’s twelve residential colleges, for the past ten years. He is also the first black dean to serve in such a capacity at Harvard.

Sullivan has had a distinguished career. He defended the family of Michael Brown, the black youngster whose killing after a street altercation by a cop in Ferguson, Missouri, sparked riots and national demonstrations and a debate on race relations that reached the White House. In a justice system that has locked up more people per capita than any other country on earth, he has secured the freedom of some six thousand wrongfully incarcerated prisoners. No single individual in America has even come close to freeing that many of the innocent.

When Sullivan’s hiring by Weinstein was announced, there was an immediate furor at Harvard. How could an American legal hero defend one of the most despised men in the country?

Sullivan responded that it was particularly important that those stigmatized as “guilty, unpopular, vile or undesirable” receive the same due process as any other accused person, and perhaps even more so, since the rush to judgment could deprive them of a fair trial. Nor was this the first time he had defended a controversial client; he had also represented Aaron Hernandez, the NFL star accused of murder.

Sullivan additionally pointed out that most of the due process rights developed over the past two hundred years in America had derived from cases involving people condemned in advance by the court of public opinion, and often involved heinous crimes. There’s no more famous case than that of Nathan Leopold and Richard Loeb, tried in 1924 for the murder of fourteen-year-old Bobby Franks, whom they had kidnapped and killed to demonstrate that they could commit the perfect crime.

There wasn’t any doubt of Leopold’s and Loeb’s guilt, nor, in the public mind, of the capital punishment they deserved. Their defense was undertaken by the most famous attorney of the time, Clarence Darrow. Darrow’s purpose, as a fervent opponent of the death penalty, was to convince a jury to spare their lives. Against what seemed insuperable odds, he succeeded. Loeb was killed twelve years later in prison. Leopold lived out his life as a model prisoner who volunteered for hazardous medical experiments. He proved Darrow’s point: that even the seemingly worst of men could find redemption and offer service.

Darrow was threatened. Both Sullivan and his wife have now been punished: Harvard has announced that their deanships will not be renewed after the current academic year. The reason given was that the atmosphere at Winthrop House has been ‘disturbed’ since Sullivan took on Weinstein’s case. Pusillanimous would be an apt description of this decision; cowardly a more deserved one. It might be added that Stephanie Robinson, a woman of color, is a collateral victim of it as well.

One of the student organizers against Sullivan, Remedy H. Ryan, has greeted the decision to sack him as “proof that collective organizing against rape culture can do a lot.” Say what? Defending an accused client in a New York court will create “a rape culture” in a dormitory in Massachusetts?

Harvard had a teachable moment here. The rule of law in America itself is under assault by the man vested by the Constitution with the responsibility of protecting and enforcing it. Much of its legal system is deeply flawed and in urgent need of reform. Its bedrock assumption, though, remains that anyone accused of a crime is innocent until proven guilty, and the corollary of that is that any such person is entitled to the best legal defense available.

If Harvard students can’t understand this, and Harvard administrators can’t or won’t explain it to them, then so much the worse for all of us.

We’ll see what Sullivan’s colleagues have to say.

About Robert Zaller 91 Articles
Dr. Robert Zaller is an American author, playwright, and professor of history at Drexel University. An authority on British political history and constitutional thought, he writes extensively on politics, modern literature, film, music and art. He has been a Guggenheim fellow and a fellow of the Royal Historical Society.

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