A recent article in InsideHigherEd, one of the — if not “the” — provider(s) of content on higher education addressed the dismissals of faculty and a trustee (or resignations depending on the story) in the context of lawsuits or client representation. There is the case of the Harvard professor who represented Harvey Weinstein and then there are two prosecutors from the now three decades old Central Park “Rape” fiasco. The IHE article conflates issues as to when and why we should be concerned with faculty and trustee behavior as lawyers. The confusion is troubling because it completely ignores the reality of the legal system and the choices that can be made and the reasons for those choices. This usually excellent publication missed nuance — and that isn’t good news.
The below is the long comment I wrote about these issues. This matters because this will not be the last time faculty/trustees find their present or past actions as lawyers (independent of their work as academics, house parents) coming to haunt them. So best we be clear and understand the issues in a more fulsome way. We owe nothing less to our academic communities, most especially our students. For easy reference, here is the article like from InsideHigherEd.
Columbia law adjunct is latest to leave academe following release of new film on Central Park Five
It's been nearly three decades since teenagers known as the Central Park Five were convicted for a rape they didn't…
One more point: there is the larger issue in academia and elsewhere about owning one’s past (and present). Time does not erase bad deeds. Then and again, we wrongfully accuse some folks just to make one’s own misdeeds or malfeasance look better. How many leaders have blamed their predecessors for current calamities? (I need to own that one and I was wisely advised that after a couple months, to stop blaming the prior president as the issues cease to be the predecessors after a couple months; the current leaders owns them and needs to fix them.) And, sadly, owning one’s real errors and the consequences (whether one is a doctor or a lawyer or a college president or a coach or a priest) is uncommon. The situation here highlights this issue, brought to light in part by the Netflix series. Just for the record, apologies are enormously powerful, especially if volunteered not forced.
My comment as posted:
I think this article [above linked] and its analysis, such as it is, fails to distinguish between the roles and obligations of lawyers within the legal system, particularly the criminal justice system. That affects in my judgment how educational institution’s can and should respond to faculty members who have participated in criminal cases and student protests related thereto.
For the record, while I lived in NYC during the time in question and was a law professor then (not in the area of criminal law). I did not know any of the parties mentioned in this article. I have not yet seen the Netflix piece although I will.
A defense lawyer, such as the Harvard professor, is insuring that an individual alleged to have committed one or more crimes is given every legal protection. We forget that in a very real sense, a criminal case is not a matter of true innocence or guilt. It is a question of whether the state (or federal government) can meet the burden of proof, namely guilt beyond a reasonable doubt. Representing those who are unpopular or those who committed horrific crimes can be ethically challenging but such work needs to be seen in the context of “proof” and railroading. Why the Harvard professor and his wife were “dismissed” so to speak seems odd — indeed, his sharing the idea of the complexities of representing unpopular clients would make for a good residential hall discussion. And defending someone does not mean you defend what they did — you are defending their rights. Totally different. That’s all lost in the Harvard situation. That’s lost in this article. The lawyer is not the one who did the wrong; it is the client who allegedly did wrong.
Now, prosecutors have a totally different role and this article lacks nuance. There are threshold issues within the prosecutor’s office — do we even proceed and if so, what are the charges with which we proceed? In other words, there are threshold choices and with multiple defendants, there are added choices about one trial versus several. This enables prosecutors to evaluate the strength of their evidence and whether the legal standard can be met — proof beyond a reasonable doubt. And yes, prosecutors can proceed — sensing they may not win — but believing that a public trial is needed to assuage community outrage. Not all cases are as strong as others. Prosecutorial discretion in charging and proceeding can be filled with nuance (and prejudice). Moreover, prosecutors can decide NOT to charge individuals. And, prosecutors can decide that cases do not merit prosecution.
The level of proof needed to proceed to trial is certainly more scientific today versus three decades ago when DNA testing and other more sophisticated tests were in their infancy. I am curious whether, given that some genetic testing was available at the time of the Central Park “Rape” case, was conducted and evaluated; to be sure, the tests were in their infancy, they would have been helpful.
How the then defendants were treated is also a question — although not all behavior with respect to suspects is in the hands or control of the prosecutors. Prison guards, police and others have opportunities to engage with those alleged to have committed crimes. How prosecutors behave, how they address the media, how they conduct themselves in court are all issues within the control of the individual and the prosecutor’s office. But, remember this: the “client” of the prosecutor is the state, not the victim.
Here’s the point: educational institutions do have an interest in learning the role of professors and board members involved as prosecutors in high and low profile cases where mistakes were made. Someone has to own those mistakes, even if they occurred decades ago. It is the prosecutors who acted. Very different than a defense lawyer. Think about war criminals. We go after them decades post event. Here 5 young minority men were sent to jail. Their innocence as to rape was vindicated decades later. Someone has to own that. We want professors and Board members with quality judgment. Times does not improve past bad deeds or missteps. Goodness knows. You own your past (and your present).
Student pressure to own one’s past seems spot on to me.