Defending clients, and choices

By Mark Shanahan, Globe Staff  |  December 30, 2008

Harvey, how could you?

That’s what every Armenian in Massachusetts is asking. They’re demanding to know how famed defense attorney Harvey Silverglate could take the side of the Turks in the legal standoff over the Armenian tragedy.

Silverglate’s a stooge, they say, for effectively questioning whether the massacre of more than 1 million Armenians nearly a century ago amounts to genocide or an unfortunate, albeit unfortunately evil, chapter in European history. They wonder if Silverglate, who’s Jewish, would be so solicitous of those extremist screwballs who deny that millions of his people perished in concentration camps during World War II.

Even bigshots at the ACLU, which has been known to back a controversial cause or two, are scratching their heads.

But, honestly, how couldn’t Harvey take the case? Beginning with a group of stringy-haired Harvard students protesting the Vietnam War in 1969, the guy’s got a long track record of repping people the public despises. What do Louise Woodward, Michael Milken, and Bernard Baran all have in common? At one point or another, Silverglate sat at their defense table. (To refresh, Woodward was the accused baby shaker from Britain; Milken the junk bond king; and Baran the former Pittsfield day-care provider and alleged pedophile who spent 22 years in prison before Silverglate helped spring him in 2006.)

“There’s one thing that characterizes all of my high-profile cases,” Silverglate says confidently. “They’re all innocent.”

At issue this time is a lawsuit he filed in 2005 that claims state education officials violated the First Amendment by removing material from a human-rights curriculum questioning whether the mass killings in the Ottoman Empire between 1915-1918 constituted genocide. (He filed the lawsuit on behalf of a local high school student, two teachers, and a Turkish-American advocacy organization.)

Silverglate insists the suit, which is still pending, is about free speech, and not the fact or fiction of the genocide.

“It’s about the right of people to express differing viewpoints,” he says. “The school department had initially included scholarly articles on both sides of the debate, but under political pressure, deleted those articles that argued it wasn’t a genocide.

“That’s censorship,” says Silverglate.

Nonsense, argue Armenians. They contend the Turks’ version of events – that the deaths and deportations were the result of a massive armed rebellion by Armenians that also killed many Turks – has been discredited and isn’t entitled to equal time in the classroom or anywhere else.

It’d be an understatement to say Armenians are upset with Silverglate. (And too bad for him, Massachusetts has the country’s second-largest Armenian population.) One prominent Armenian, Carolyn Mugar – she of the philanthropic Star Market Mugars – lives next door to Silverglate in Cambridge. While they’re not at each other’s throats like the neighbors in Thomas Berger’s darkly comic novel, they’re also not as chummy as they once were.

“The genocide is a fact of history at this point,” says Anthony Barsamian, a Wellesley attorney and spokesman for the Armenian Assembly of America. “Denial is being put out of business. Free speech is free speech, but there’s also right and wrong.”

Even in the context of some of Silverglate’s previous celebrated cases – he counseled the Queen of Mean Leona Helmsley and had a hand in the Claus von Bulow case – this is considered by his critics to be a new low. Barsamian, like a lot of Armenians, doubts he’d be in such a rush to defend, say, folks who deny the Holocaust ever happened.

Oh, don’t be so sure. Consider this: During all the hubbub over desegregation and school busing in the 1970s, a crew of neo-Nazis showed up in Boston wearing whatever it is neo-Nazis wear. They were promptly arrested for disturbing the peace, and detained.

The ACLU asked Harvey if he would give the Hitler-loving louts the benefit of some legal aid. He did, without hesitation, and before long the wannabe brownshirts were back on the street.

“Of all of my cases, fewer words never passed between me and a client,” says Silverglate, chuckling at the memory. “They didn’t thank me, and I didn’t expect they would.”

So, would he help Holocaust deniers?

“Absolutely. The First Amendment is useless if you only defend people you agree with,” Silverglate says. “My family was from Poland and Russia, and they were all wiped out. I hold no brief for the Nazis. But it’s not a crime to deny the Holocaust. It’s a position.”