President's Message: We Are True Patriots - By David E. Moore

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Tuesday, July 25th, 2017

 I trust everyone had a wonderful Independence Day. I want to once again publicly thank Robb Fickman, Chuck Lanehart, and the rest of the organizers for pulling together another successful TCDLA reading of the Declaration. I cannot tell you how proud I am to personally participate in the readings each year. I know that so many of our members across the state turn out of for what has become a signature annual event for our organization, and I am very grateful to each of you for your efforts. I also am appreciative of our new State Bar President Tom Vick’s past participation in the readings and for his acknowledgement of the event in his July President’s message.

Of the 56 men who courageously signed the Declaration, almost half of them were practicing lawyers or had legal training. As I thought about the topic of my message, I wondered about which lawyer’s story to focus on. What would resonate most with our group and what we do? Which story best embodies what TCDLA stands for? In researching each of their backgrounds, there were so many intriguing signers to consider.

I could easily focus on Jefferson, the primary architect of the Declaration. With over 900 legal cases attributed to him according to Encyclopedia Virginia, he would be a great centerpiece of my article.

Or, I could expand on Tom Vick’s choice in the Bar Journal, George Wythe of Virginia. Generally recognized as our nation’s first college law professor, as a student, he dropped out of college when he could no longer afford the fees. He persevered by studying the law at the feet of attorney Stephen Dewey and was admitted to the bar in 1746, 30 years before signing the Declaration. In addition to signing the declaration and being involved in the framework of the Constitution, Wythe designed the Virginia state seal, which included the motto Sic Semper Tyrannis (“Thus Always to Tyrants”). How could Wythe envision that those words would be shouted by a presidential assassin as he leapt to the stage of Ford’s Theatre a century later?

How Wythe freed his slaves and made provisions for them in his will would make an interesting topic, especially when you understand how that action would contribute to his death. It turns out that a relative, upon learning of the provisions for the slaves in Wyeth’s will, decided to cut the slaves out by poisoning them with arsenic. In the process, Wyeth was apparently unintentionally poisoned and died as a result. He left his extensive book collection to Jefferson.

What about Edward Rutledge, the youngest signer of the Declaration? Trained in law in London, at the tender age of 24 he received an acquittal for Thomas Powell, tried for printing an unfavorable piece criticizing loyalists to the Crown. Taken prisoner during the war, Rutledge later advocated for prosecutions of those who professed loyalty to England. Later, even though he was a self-professed Federalist, in an act of conscience he bravely crossed party lines and cast his vote as an elector for Jefferson. I wish more of our elected officials today would follow his example and repudiate the party-first mentality that seems to pervade all deliberations.

There are so many other lawyer signers who could be the subject of an entire article.

For instance, we could talk about the character of Roger Sherman, who Jefferson held in high regard, saying he was “a man who never said a foolish thing in all his life.” Sherman was the only member of the Declaration signers who also signed the Articles of Association, the Articles of Confederation, and the Constitution.

What about Robert Treat Paine, who served as part of the prosecution team of the soldiers involved in the Boston Massacre? (More on that later.)

Or Richard Stockton, who was apparently the only signer who later recanted his support of the Declaration, albeit while imprisoned by the British.

And George Read of Delaware, who was admitted to the bar at the age of 19. Appointed as an Attorney General by the Crown, Read later resigned as his repeated warnings to England regarding taxation without representation fell on deaf ears.

How about the story of how three signees squared off in a case involving members of the clergy and the poll tax? Thomas Stone on one side, fellow signers Samuel Chase and William Paca on the other.

Or maybe William Hooper, whose parents wanted him to be a preacher and had sent him to Harvard to study theology. He switched careers to the law, and it wasn’t his last conversion. Originally a loyalist, he was attacked and dragged through the streets by protesters in 1770. Seeing the error of his ways, he morphed into a fervent rebel and signer of the Declaration.

What about Thomas Heyward, who was captured by the British? He was nearly lost at sea after falling from a ship but was able to hold on to the ship’s rudder until he was rescued. Surely a metaphorical message for defense lawyers could be drawn from that experience.

Heyward was more fortunate at sea than his fellow signer, Thomas Lynch Jr. of South Carolina. Later in 1776, the ship that Lynch and his wife were traveling on was reported lost, and they and the ship were never found.

And Roger Sherman of Connecticut would be a great story—how he came from a background with little formal education but was “discovered” by a lawyer who encouraged Sherman to pursue a legal career. Sherman was accepted to the bar in 1754. He went on to not only sign the Declaration but also to participate in the Constitutional Convention, where he became a leading proponent for the rights of the smaller states.

George Walton of Georgia would make a fascinating study. Talk about a life of highs and lows! After signing the Declaration, Walton served as an officer in the Georgia militia. During the battle for Savannah, he was shot from his horse and captured by the redcoats. (Rutledge, Heyward, Stockton, and Arthur Middleton were also prisoners of the British during the war.)

After the war, Walton engaged in a political struggle with fellow Georgian signer, and non-lawyer, Button Gwinnett. Gwinnett was viewed as a liberal while Walton was in the conservative party. To that end, Walton was a close ally of fellow conservative General Lachlan McIntosh. At the height of the hostilities between the two groups, McIntosh and Gwinnett squared off in a duel, which resulted in both of them being wounded. McIntosh survived, Declaration signer Gwinnett did not. Walton and McIntosh later had their own falling out, with Walton allegedly participating in the forging of a letter under McIntosh’s name that resulted in the general’s being relieved of command. In 1783, Walton was censured by the Georgian legislature. There are conflicting accounts in publications I’ve read as to whether the censure resulted from Walton’s role in the Gwinnett duel or from his role in the forgery. In any event, it was no doubt a sad fall from grace. Apparently Walton did manage to barely avoid a criminal indictment on the forgery. But he did later suffer the additional ignominy of a public horse-whipping by the general’s son, Captain William McIntosh.

These are all great stories, but as a criminal defense attorney, the most intriguing story for me is that of John Adams’ representation of the British soldiers involved in the Boston Massacre. We all know of how five civilians were killed by a group of British soldiers under command of Captain Thomas Preston. Less than two weeks later, Preston, eight other soldiers under his command, and four Loyalist civilians were indicted by the colony’s attorney general. Charged with murder, they faced the prospect of a potential death penalty if convicted.

The lead prosecutor would be Samuel Quincy. At the urging of Declaration signer Sam Adams, a second lawyer was named to the prosecution team, the aforementioned fellow signer Robert Treat Paine.

Apparently, Captain Preston had difficulty in securing defense counsel. According to John Adams, several lawyers had been approached but had refused to take on the yoke of defending the soldiers. A Tory merchant named Forrest sought out John Adams on behalf of Preston and the other soldiers. According to Forrest, Josiah Quincy Jr., younger brother of the lead prosecutor, and Robert Auchmaty would agree to defend them but only if Adams would agree to join the team.

Adams was already a well-respected attorney. Among his successful cases was the defense of fellow Declaration signer and accused smuggler John Hancock. Surely Adams recognized that taking on this case could wreck his practice and subject him to public scorn. He later admitted that he worried for the safety of his family.

With all that on the line, Adams later said he had “no hesitation” in accepting the new clients, stating that no person accused should want for counsel in a free country. He wrote “that persons whose lives were at stake ought to have the counsel they preferred.”

With Adams now on the team, the defense sought to delay the proceedings to allow the fervor in the community to cool. However, the Sons of Liberty would have none of that as they published inflammatory accounts by Sam Adams, John Han­cock, and others in an attempt to further fan the flames. When Paul Revere’s famous engraving was published showing the British troops firing on a helpless crowd at the direction and command of Captain Preston, it certainly did not help.

A few months later, Preston went to trial individually. Since it was undisputed that he had not fired a weapon, the issue boiled down to whether or not Preston had ordered the soldiers to shoot. The witnesses were divided, some swearing that Preston had given the order to fire, others adamantly testifying he did not. After six days of trial and contradictory testimony, the jury acquitted Preston.

About a month later, the trial of the other eight soldiers began in a joint proceeding. This trial was even more scrutinized than Preston’s, for these were the men who had actually pulled the trigger. After all, the prosecutor argued that if Adams were correct and Preston had not ordered the Redcoats to fire, why else would they fire on the crowd? The prosecution argued that the soldiers’ motive stemmed from their resentment and hatred for the Bostonians due to months of mistreatment heaped upon them from the civilians.

Adams argued self-defense. He told the jurors a story—not of peacefully protesting civilians, but of an unruly, menacing mob. Over 80 witnesses testified in the 7-day trial.

Adams famously said to the jury, “Facts are a stubborn thing, and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”

Adams argued that the soldiers legitimately and reasonably feared for their lives. In his closing, he vividly painted the scene, not one of innocent citizens gunned down on a whim, but of a mob—“a motley rabble” who pelted the soldiers with rocks, clubs, and oyster shells as they closed in with shouts of “kill them, kill them” coming from the threatening crowd.

After setting the stage for the jury, Adams brought his argument back to his clients. He told the jury that they must stand in the shoes of the soldiers; “consider yourselves, in this situation, and then judge whether a reasonable man . . . would not have concluded they [the mob] were going to kill him.”

Reminds me a lot of Matthew McConaughey’s character in the movie “A Time to Kill” two centuries later when he asked his jurors to close their eyes as he set for them the stage of what happened to the young victim in John Grisham’s novel.

Adams did a masterful job of putting the jury there: in the confusion, in the heat of the moment, in a terrifying situation.

The jury acquitted six of the eight, finding two of the soldiers guilty of the lesser of charge of manslaughter. The two convicted were punished, not by hanging, but by being branded with an “M” on their thumb.

Adams would later write: “The part I took in defense of Captain Preston and the soldiers, procured me anxiety, and obloquy enough. It was, however, one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country. Judgement of death against those soldiers would have been as foul a stain upon this country as the executions of the Quakers or Witches anciently. As the evidence was, the verdict of the jury was exactly right.”

John Adams was a patriot, and a great defense lawyer. We always talk about “why we do what we do.” Adams understood it 250 years ago. He embodied everything we strive for as criminal defense lawyers. So the next time you find yourself on the wrong side of public opinion, or the next time you are representing a citizen who is reviled by the public, ask yourself, “What would John Adams do?” Take that tough case, stand up for your client, give him or her your best when others might not, and be a true patriot.