Crime

The Repercussions Of Having An Unpopular Client

No defense attorney should be conflated with the person he chooses to represent.

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Every person accused of a crime has the right to an attorney. If they cannot afford one, one will be appointed to represent them.  So, what if an attorney doesn’t like a client (or the crime he’s accused of having committed) and doesn’t want to take his case?  Can he just refuse?  And if he represents a client vilified by the general public, what are the consequences?

Retained attorneys in criminal defense can do whatever they want. In deciding whether to accept a case, they consider things like how badly they need the money and whether the client will pay it.  Is his case load already too big? How problematic will the case or client be?  In short, it’s a cost/benefit analysis.  Is this client worth the effort?

Working as a court-appointed attorney, an attorney doesn’t have such leeway.  He must take whatever case lands in the arraignment basket. Unless the defendant poses a physical threat to an attorney’s safety — and this has to be more than a general feeling that “he’s scary” or charged with a terrible crime like raping a child — that attorney has to represent him.  If you don’t like the heat, get out of the kitchen.

What prompted my thinking about this was an editorial I recently read in the New York Times, “Should Doctors Refuse to Treat a Patient?” The writer, cardiologist Sandeep Jauhar, was concerned about the Trump administration’s new rule that broadens the ability of doctors and other health care providers to refuse to deliver services if they cut against their own religious beliefs.  Things like abortion, procedures for transgender patients, and assisted suicide were discussed.

Should criminal defense counsel have the same privilege?  Jauhar says in his editorial, “If you are opposed to abortion, don’t become a gynecologist.” The equivalent in the criminal defense world might be, “If you don’t like representing a rapist, don’t go into criminal defense.”

But if you choose this particular subset of lawyering, hold on for the ride.  You’re going to meet a lot of people charged with horrendous acts.

Most criminal defense attorneys know and understand this. I have a female colleague who recently represented a woman accused of cutting a baby out of her friend’s body when she was eight-and-a-half months pregnant.  The friend died; the baby lived.  Talk about a tough set of facts.  My colleague is a mother of three and had to hold back gagging as she looked at the autopsy photos.  But she provided the best representation she could.  That was her job.

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Her client, in spite of the horror of her act, still deserved a trial with all the constitutional safeguards in place — the presumption of innocence, due process, and the right to cross examine witnesses.

I’m now facing my own high-publicity case defending someone charged with a horrendous crime — the murder of 15-year-old Lesandro “Junior” Guzman Feliz.  His death was caught on video and distributed millions of times on social media.  Its depiction shocked the generally unshockable Bronx, and prompted the creation of scholarships, summer camps, and a street in his name.

Although charged with murdering “Junior,” my client, like anyone accused of a crime, deserves the best defense he can get. Only that way are the rights of every person upheld.  So far, I’ve been threatened on Instagram and other social media.  That’s the downside in taking on an unpopular client.  Am I concerned?  Yes, but one thing that I’m not concerned about is losing my job.  My job is to represent the guy everybody hates.  In fact, if I didn’t represent my client well, that’s when I could be charged with an ethical violation.

So, I was left wondering why attorney and Harvard law professor Ronald S. Sullivan, Jr., one of the defense counsel for disgraced Hollywood mogul Harvey Weinstein, lost his job as a Harvard faculty dean at Winthrop House, a dorm where Sullivan and his wife acted as advisors, because he was one of Weinstein’s counsel.

Harvard dismissed Sullivan from the advisor position due to student complaints.  How could he be sensitive to their needs, particularly involving complaints of sexual harassment or assault, if he chose to represent alleged sex offender #1, Harvey Weinstein?  Ultimately, Sullivan left the Weinstein defense team, but days later was still dismissed as faculty dean. (He has retained his position as director of the law school’s Criminal Justice Institute.)

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I know Weinstein is reviled for his alleged sexual crimes, but in the hierarchy of stomach-turning crimes people commit, his is not the worst. So, why all the hubbub?

According to an editorial written by Harvard law professor Randall Kennedy, a friend of Sullivan’s, “a cadre of students at Winthrop and other parts of the university, demanded the lawyer’s ouster asserting that his choice of client undermined their confidence in his ability to be properly attuned to their thoughts and feelings.” Harvard did an independent study of the “climate” at Winthrop House and sided with the students.

I wonder what else was behind this.  Law students at Harvard are smart enough to understand the concept of due process, and the right of every accused to have a good defense.

They must know that the nature of criminal defense is representing people accused of bad, sometimes reprehensible things.  Representing guilty people, violent people, mentally ill people, and unpopular people goes with the territory.  Thankfully, we don’t have a system where the prosecutor, public, and media are judge and jury. And we must be consistently vigilant that the nation doesn’t slip into such a system.

According to one of the comments following Kennedy’s editorial, “Defending Weinstein might be an appropriate occupation for an attorney but not for a Dean. Weinstein is misogyny personified and no Harvard Dean should be in the business of defending him.”

Harvard can choose who they want to be their housing deans, and students’ feelings must, of course, be taken into account. But punishing a criminal defense lawyer for who he represents is as unfair and illogical as concluding that Anthony Hopkins is a cannibal because he played Hannibal Lecter in a movie.

No defense attorney should be conflated with the person he chooses to represent.  If that were the standard, people accused of the worst crimes would have no representation and ultimately the rights of all would be meaningless.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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