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Gideon Can’t Play Here: Banning Student Defense Lawyers*

By July 31, 2013September 25th, 2023No Comments

Numerous college and university student disciplinary codes don’t allow students to have a lawyer present at a student disciplinary hearing.  The colleges and universities may argue that this prohibition is allowable because their proceedings are not criminal prosecutions and the Sixth Amendment of the Constitution’s right to counsel applies only to criminal cases. U.S. Const. amend. XI.

These prohibitions are questionable from a constitutional perspective (more on that to come!) and incompatible with a just and fair process.  Why should students facing suspension or expulsion be denied the right to have the assistance of a lawyer in the very hearing that will determine their punishment?

The prohibitions typically extend beyond lawyers and bar the presence of anyone not a member of the college or university community.

These aspects of the prohibition against student defense lawyers arise from a “don’t air your dirty laundry” mentality that is unacceptable.  Living and working on a college campus doesn’t imbue a person with the ability and experience to investigate and assist defending against student conduct violation allegations.

So how can a student defense lawyer assist when a school bars lawyers? Preparation.

Most legal cases are won in the preparation and not in the courtroom.  Accordingly, the most important part of defending a student against college/university disciplinary charges is professional preparation.

Colleges and universities may role-play being cop/lawyer/judge and jury, but our student defense clients have too much at stake to play along.

*Anthony Lewis, Gideon’s Trumpet. New York: Vintage Books/Random House, 1964.  tells the story of Clarence Earl Gideon who wrote the United States Supreme Court a handwritten letter from jail that sparked the landmark decision establishing the right to counsel for criminal defendants. Gideon v. Wainright, 372 U.S. 335 (1963). The title references the Biblical story of Gideon’s successful attack strategy using horns and loud noises to feign the presence of a larger enemy. Judges 7:16-22/

Shan Wu

Author Shan Wu

Shan’s professional and personal background gives him a unique understanding of academic institutions and the criminal justice system. A former federal prosecutor in Washington, D.C., he is at home in D.C. Courts and very familiar with all of the Washington, D.C. law enforcement agencies, especially the Metropolitan Police Department. His parents were university professors so he grew up in a university environment. He understands the mindset of academic institutions. As a prosecutor, he supervised in the misdemeanor crime section. This is the section of the Washington, D.C. prosecutor’s office that handles most college student cases. His understanding of charging decisions and how judges view these cases is invaluable to his student clients and their families. Shan served as a federal prosecutor in the United States Attorney’s Office for the District of Columbia for over ten years. During his tenure there, now Attorney General Eric H. Holder, Jr. appointed him to supervisory positions in the Misdemeanor Trial Section and also in a police corruption task force. His outstanding legal work in the government was recognized through numerous Special Achievement Awards from the Justice Department as well as awards conveyed by law enforcement agencies and community groups. From 1999-2000, Shan served as Counsel to Attorney General Janet Reno, advising her on criminal and civil investigations, E-Gov, E-Commerce (electronic signatures, internet gambling, internet telephony, privacy & public access issues in electronic court filings), congressional oversight, and legislative review. His responsibilities included serving as liaison to the FBI, DEA, Criminal Division, Executive Office of United States Attorneys, National Institute of Justice, and White House Counsel’s Office. Shan serves on the D.C. Bar Association’s Hearing Committee of the Board on Professional Responsibility and is a past president of the Asian Pacific American Bar Association for the Greater Washington, D.C. area. He is a 1988 graduate of Georgetown University Law Center, where he graduated Order of the Barristers, edited two law reviews, and was Co-Director of the Moot Court Program. He holds a B.A. in English Literature from Vassar College as well as a Master’s Degree in Creative Writing from Sarah Lawrence College. Following law school, he clerked for the late Hon. Jerry Buchmeyer, U.S. District Court for the Northern District of Texas, and the late Eugene Wright, U.S. Court of Appeals for the Ninth Circuit. He is admitted to practice law in the District of Columbia and Connecticut.

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