Guest post by Michael Ariens:
This is the first of five posts related to the idea that American lawyers have a duty to representing unpopular clients, for the sake of both those clients and in the interests of a public that despises those clients. These stories come from my book, The Lawyer’s Conscience: A History of American Lawyer Ethics (2023).
In 2011, President Barack Obama declared that May 1, since the late 1950s celebrated as “Law Day,” would be dedicated to “The Legacy of John Adams: From Boston to Guantanamo.” “Boston,” of course, meant the 1770 Boston Massacre, and John Adams’s legacy concerned his work representing Captain Thomas Preston and the eight soldiers accused of murdering five Bostonians. Adams, then in his mid-thirties, was one of three lawyers representing Preston, including Robert Auchmuty, a loyalist, and Josiah Quincy Jr., a patriot who died in 1775 at thirty-one. They obtained an acquittal for Preston, in part a result of successful cross-examinations of witnesses, which placed into doubt the claim that Preston had ordered the soldiers to fire. The following month, Adams and Quincy represented the eight soldiers. Six were acquitted, and two convicted of manslaughter, the punishment for which was branding on the thumb rather than hanging. Although loyalists, including lieutenant governor Thomas Hutchinson, voiced some suspicions that Adams was “not so faithful as he ought to be” in defending the soldiers, the received wisdom was that Adams had served his unpopular clients well by zealously defending them in extraordinarily lengthy trials. Shortly before Adams died in 1826, a Massachusetts lawyer and writer concluded, “it required no little independence, to appear in defence [sic] of the prisoners, when the popular sentiment was so highly adverse to his side of the case.” This became the standard story: Adams’s zealous defense of unpopular clients represented the “apogee of the American legal profession.”
Though the standard story has occasionally been questioned, it has largely held up, as demonstrated by President Obama’s declaration. But in praising Adams, lawyers have glossed over some of his tactics in representing the soldiers. In particular, few have noted his attack on the victims in his closing argument in behalf of the soldiers. The victims, Adams told the jury, constituted a “motley rabble of saucy boys, negroes and molattoes, Irish teagues and out landish [sic] Jack tarrs.” “Negroes and molattoes,” “Irish teagues” (likely a slur against Roman Catholics), and “Jack tarrs” (sailors) were not true members of the Boston community. Adams also made false declarations regarding the behavior of one of those victims, Patrick Carr, “a native of Ireland.” Adams wrongly accused Carr of threatening the soldiers when no evidence of any such threats was offered. Adams was wrongly accused by Hutchinson of too little ardor; playing on the passions and prejudices of the jury in an effort to obtain acquittals, Adams may have demonstrated too much ardor for his clients’ cause.
If a lawyer served the public by zealously representing the unpopular client, how did a lawyer serve the public when representing the popular client? In 1830, Daniel Webster, like Adams another famous Massachusetts lawyer and politician, agreed to serve as special prosecution counsel in the murder trials of the Knapp brothers in Salem. The elderly victim, Joseph White, had made his fortune as a ship owner. This had included transporting recently enslaved Africans to the Americas. White was bludgeoned and stabbed to death by a paid assassin; the motive was money, for the wealthy and widowed White had no children. The killer hanged himself while awaiting trial. Under Massachusetts law, an accessory to murder could not be tried until a principal had been convicted. After the assassin’s death, the grand jury indicted John Francis “Frank” Knapp as a principal, and his older brother Joseph “Joe” Knapp Jr. with being an accessory to murder. Frank was a principal only if he was “present” to aid in the murder. Webster thus sought to prove Frank’s presence near White’s house when the murder occurred. Witnesses testified they saw a person resembling Frank near the scene, but refused unequivocally to state it was Frank. Successful cross-examination by Frank’s counsel made this testimony, as Webster acknowledged, “somewhat shaky.” The only “evidence” of Frank’s presence near the murder scene was Joe’s confession. But Joe’s confession was inadmissible against Frank.
As defense counsel noted in its opening statement, the entire town of Salem and county of Essex wanted Frank to hang. And so Webster re-doubled his effort to bolster this shaky evidence. He asked the Supreme Judicial Court, which presided as a body at all murder trials, to reconsider its decision excluding testimony from the minister who received Joe’s oral confession, and who had spoken with Frank immediately thereafter. Webster’s initial argument was that the Court could admit Frank’s statements, and if the evidence was erroneously admitted, a higher court could set aside a guilty verdict. Defense counsel noted no higher court existed to which Frank could appeal. After the court upheld its initial determination, Webster tried again. This time it worked. The Reverend Henry Colman testified that Frank had confessed all to him, including his “presence” at the murder scene. Even so, the jury could not agree on a verdict.
The day after a mistrial was declared, Frank’s trial began anew. The community was adamant that Frank had to pay for his sins. Hesitant witnesses in the first trial grew certain of their observations in the second. Colman seemed to fill any gaps in the evidence. Webster twice told the jury Frank had to prove his alibi, which was false under Massachusetts law. Frank was found guilty, and hanged before Joe’s trial began.
At Joe’s trial, his lawyers argued Webster was disqualified from prosecuting if he was paid. Webster “avow[ed]” to the court that he appeared “without any other consideration” than the request of the attorney general. He lied, as White’s nephew and heir Stephen White had paid Webster $1,000 to prosecute both Knapp brothers, as a receipt signed by Webster showed. Joe’s confession was admitted, and he too was hanged.
Even Webster’s sympathetic biographers were sensitive to charges that Webster’s actions had gone too far. In an 1847 speech to the Charleston, South Carolina bar, Webster declared, “An eminent lawyer cannot be a dishonest man…. He cannot be, because he is careless and reckless of justice; the law is not in his heart, it is not the standard and rule of his conduct.”