Richard Painter: "The John Adams Analogy"

Richard Painter has forwarded this post:

In their rightful condemnation of a thoughtless vilification campaign,
defenders of the DOJ lawyers who previously represented detainees point in
their letter to a famed representation by John Adams “The American
tradition of zealous representation of unpopular clients is at least as old
as John Adams’s representation of the British soldiers charged in the
Boston massacre.”

Nobody could reasonably question John Adams' patriotism because he
represented these clients --Captain Preston and his men -- in what was a
capital case of murder. As I point out in my casebook with Judge Noonan,
however, there were conflicts of interest that compromised the quality of
the representation.

One set of conflicts arose between Captain Preston and his men, who
arguably should have been represented by separate counsel. Captain Preston
could have defended the case by claiming the men fired without his orders.
This conflict was apparent to the men at the time, and they were worried
that Captain Preston’s defense would leave them hanging -- literally. One
of the men, named Kilroy, petitioned for a joint trial with Captain
Preston. If there had been separate trials and separate counsel, it is true
that the men could have defended the case by claiming that Captain Preston
ordered them to fire, subjecting them to court martial if they did not
obey. It turned out that Adams and Quincy represented both Captain Preston
and his men, precluding either of these lines of argument. The case would
have to proceed on the argument that both Captain Preston and his men were
innocent because the crowd had threatened them.

This, however, was difficult because of another set of conflicts. Adams and
his family were very close to the patriots who had challenged the
soldiers’ presence in Boston and who may have instigated the unruly crowd
that allegedly attacked the soldiers. Adams’ co-counsel in the case,
Josiah Quincy had similar conflicts as his brother Samuel Quincy was
employed by the prosecution. For Adams and Quincy to condemn the actions of
the crowd in order to show they were threatening the soldiers would be
difficult without condemning the townspeople in general. The crowd
allegedly included people who were throwing objects at the soldiers, and
some people in the crowd may have been drunk. John’s cousin Sam – a
figure more familiar to 21st Century law students than John – was a
supplier of beer, and after the shooting Sam was actively urging
prosecution of the soldiers.

We are critical in Chapter 7 of our casebook of the strategy that Adams
used at trial to deal with this conflict. First, he may have held back on
evidence prejudicial to the townspeople in order to avoid putting his
fellow Bostonians in a bad light. As one observer, named Hutchison, pointed
out:

"The employing counsel who were warmly engaged in popular measures caused
some of the evidence to be kept back which would otherwise have been
produced for the prisoners. The counsel for the crown insisted upon
producing evidence to prove the menaces of the soldiers preceding the
action, and the counsel for the prisoners consented to it, provided they
might have the like liberty with respect to the inhabitants. After the
evidence had been given on the part of the crown, and divers witnesses had
been examined to shew the premeditated plan of the inhabitants to drive out
the soldiers, one of the counsel, Mr. John Adams, for the prisoners then
declined proceeding any further, and declared that he would leave the
cause, if such witnesses must be produced as served only to set the town in
a bad light. A stop therefore was put to any further examination of such
witnesses, by which means many facts were not brought to light . . . .."

Second, Adams found a way of condemning the crowd without condemning the
townspeople of Boston, or at least the elements with which his family and
Quincy’s family were associated. He portrayed the crowd as outsiders and
appealed to juror prejudice in his closing argument when he describes the
crowd as "a motley rabble of saucy boys, negroes and mulattoes, Irish
[t]eagues and out landish jack tarrs." Referring to Crispus Attucks, one of
the persons killed, Adams said, "[s]upposing in this case, the Mulatto man
was the person made the assault, suppose he was concerned in the unlawful
assembly, and this party of soldiers endeavoring to defend themselves
against him, happened to kill another person who was innocent...." There
was no evidence in the record that Attucks in particular threatened anyone.
Adams compensated for not "putting the town on trial" by blaming the
incident on a portion of the town, including persons of Irish and African
descent. Then, as now, prejudices run deep in Boston. Adams won his case.
He had managed his conflict of interest by playing the race card.

The lesson to be learned from the Boston Massacre trials is that conflicts
do matter. Although Adams still should have accepted the representation –
he and his co-counsel Quincy may have been the only lawyers in Boston with
the courage to do so – the conflicts of interest were real and some of
those conflicts arose because of Adams’ loyalty to the Patriot cause.
Those conflicts had a genuine impact on the representation. He won
acquittals, but at a cost.

The types of conflicts that would have been more pertinent to the current
controversy over DOJ lawyers apparently did not occur. They would have
occurred if Adams had represented Captain Preston against the government
and then joined the government's prosecution of the men who took or were
supposed to take orders from Captain Preston. It would not matter if
Captain Preston and his men were detained in separate jails or tried in
separate trials. Adams’ subsequent representation of the government would
have been wrong. An arguably more remote – but still genuine -- conflict
would have arisen if another group of soldiers under the same command as
Captain Preston – and acting on similar instructions from British
military superiors -- had shot and killed some colonists somewhere else. It
would still have been improper for Adams to be employed by the prosecution.
He could, for example, have learned from Captain Preston some details about
what precisely the orders from British military superiors were that
soldiers in these situations were acting upon and the extent to which
soldiers who fired upon crowds were acting without authorization. Based on
information he learned from his prior client, he could have penetrated deep
into a subsequent defense case built upon at least this premise and
probably others as well.
   

Comments

[Law school grad]

Perhaps the same circumstances that created conflicts for John Adams - his patriotism and community connections, and his joint representation of defendants with potentially conflicting defenses - also helped him devise a winning strategy. He knew the community, and perhaps knew that arguments that were too critical of the patriots or the townspeople were likely not to persuade a jury that identified with these groups. Apparently he also was familiar with the town's dislike of outsiders and certain ethnic groups, something that counsel less familiar with the community may not have been as aware of.

His joint representation of conflicting parties may have enabled him to come up with a more coherent defense, similar to when defense attorneys meet to coordinate their strategies. In doing so, he may have avoided a prisoner's dilemma situation where conflicting parties each act in a manner that is individually rational, yet mutually destructive.

Perhaps in this case, the same factors that created the conflicts also helped the defense for both of the conflicted parties. Situations like this would provide policies that allow informed parties to waive potential conflicts when the benefits are likely to outweigh the harms.

[Monroe Freedman]

These are two extremely interesting and thoughtful posts. Thank you both.

[Sheriff Ray Nash]

At least one good thing came out of the trial - Adams' famous quote about facts during his summation:

“Facts are stubborn things. And whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence..."

Sheriff Ray
www.PoliceDynamicsMedia.com

[alexandra lahav]

Thank you for this interesting post. My student did a paper on John Adam's representation and reported that his fellow patriots wanted him to represent the soldiers and rather than hurting his career this representation was a great help to him. If that is true, I am not sure whether the conflict is really present - if it helped the patriot cause to show that soldiers could get a fair trial and the new nation would be a nation of laws, then I think there was not really a conflict. What do you think?