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Defending the Impossible Case
Chapter 1, from “Who Says You Can’t,” Strategy and Tactics for Becoming a More Creative Criminal Defense Lawyer
What do you do when there are multiple witnesses to the crime your clients are accused of, the law supports the government’s theory of the case, and the jurors are likely prejudiced against your clients. This is the situation an 18th century criminal defense attorney faced in Colonial America. He would later become a member of the Continental Congress, an ambassador to England, and the Second President of the United States. His name of course is John Adams.
John Adams is revered by lawyers around the world for establishing the principle that even the most hated members of a community are entitled to the assistance of counsel when accused of a crime. At great personal risk to Adams and his family, and with the very real likelihood that his law practice in Boston would be ruined, Adams represented the British soldiers who fired on a mob attacking them and killed five civilians during what came to be known as the Boston Massacre.
An American citizen sent back in time 260 years ago, would find many of the features of that trial familiar, although some were firsts. The trial of Captain Preston was severed from the trial of the soldiers he led, because their defenses were inconsistent; the Sons of Liberty used the press to try to turn the community, and prospective jurors, against the soldiers; Preston ran an ad in the press to try to counteract the prejudicial publicity; a print of the massacre engraved by Paul Revere was widely circulated in the city; the defendants had a team of lawyers and the lawyers employed investigators to go out into Boston and take statements; there was jury selection where the lawyers were allowed to exercise preemptory challenges; counsel conducted direct and cross-examination of witnesses; there was jury sequestration; the entire trial was transcribed by a local printer who had taught himself shorthand; and, for the first time in history, a jury was instructed to acquit if they had a reasonable doubt.1
But the most famous feature of the trial was John Adams’s closing argument, an argument that is as relevant today as it was in 1770. The central legal question Adams wrestled with: the nature of the right to self-defense. The central factual question: whether the soldiers’ lives were actually in danger.
The facts in the Boston Massacre case can be summarized in one sentence: A mob attacked a group of soldiers who had their backs to a wall; the soldiers fired on the mob and killed five people; the soldiers were charged with murder. The question presented the jury was whether the soldiers acted with malice when they fired on the crowd or whether they fired on the crowd to save their lives.
The evidence presented by the Crown in March of 1760 showed that the day before the confrontation between the mob and the soldiers, members of the regiment fought with some inhabitants of the city. The next evening, a 13-year-old boy had an argument with one of the officers from the regiment and a nearby sentry, Hugh White, struck the boy with his musket for being disrespectful to the officer. A crowd assembled around the sentry and he called out for help. At this time, bells began to ring throughout the city, a sign that there was a fire and a call for the citizens of the city to assemble to put it out. Seeing the crowd grow, White retreated down the street to the Customs House.
Responding to White, Captain Thomas Preston sent seven soldiers to White’s aid. The soldiers pushed through the crowd until they reached the Customs House. Captain Preston himself arrived moments later. At this time Preston, his men, and the sentry were surrounded, their backs to the Customs House, with nowhere to retreat.
As the soldiers stood their ground, Preston, slightly in front of his men, members of the crowd threw anything they could lay their hands on at the soldiers: chunks of ice the size of a man’s hand, snowballs, sticks, clubs; items that could do serious harm and even kill. At the same time some in the crowd dared the soldiers to shoot. While all this was going on, the bells kept ringing and the crowd grew larger. A club was thrown at one of the soldiers, knocking him down. When he got up, he fired his musket. An unknown person yelled fire and the rest of the regiment fired into the crowd.
Even before Adams stepped into court, he was confronted with a major challenge. He represented defendants who were hated in the community in which they were standing trial. The Redcoats were occupiers of Boston, sent there by the British government to keep order. The jurors who would sit in judgement would be drawn from this community, a community that already saw itself as oppressed and whose prejudices had been inflamed by a propaganda campaign conducted by John Adams’s cousin and leader of the Sons of Liberty, Samuel Adams. A change of venue was not a procedure known to the common law, so Adams could not move the trial out of Boston (such motions are rarely granted today anyway).
While Adams could not change this dynamic, he did use his preemptory challenges to remove the most prejudiced of the potential jurors. Adams also sought to address the natural inclination of the jurors to relate to those who were involved in the disturbance, their fellow citizens. It was absolutely imperative for Adams to distance the citizens of Boston from the mob that attacked the soldiers. Adams’s young co-counsel, Josiah Quincy II, wanted to take a different tack and argue that the city’s hostility to the soldiers led to the confrontation that night. But to do so would put the jurors on trial themselves and Adams refused to do that. Instead, Adams told the jurors that it was the mob that was to blame for the deaths that night and that the jurors should not be squeamish about recognizing that those who attacked the soldiers were part of a mob:
And why we should scruple to call such a set of people a mob, I can’t conceive, unless the name is too respectable for them: —The sun is not about to stand still or go out, nor the rivers to dry up because there was a mob in Boston on the 5th of March that attacked a party of soldiers…2
Adams also argued that the citizens of Boston would have acted as the soldiers did, had they been faced with a riot by their neighbors:
If we strip ourselves free from all military laws, mutiny acts, articles of war and soldiers oaths, and consider these prisoners as neighbours, if any of their neighbours were attacked in King-street, they had a right to collect together to suppress this riot and combination.3
(Notice how he avoids a Golden Rule objection. Not what you would have done, but what your neighbors would have done.)
Finally, Adams sought to distance the jurors personally from those in the crowd that evening:
[M]any of these people were thoughtless and inconsiderate, old and young, sailors and land men, negroes and molattos; that they, the soldiers had no friends about them, the rest were in opposition to them; with all the bells ringing, to call the town together to assist the people in King-street; for they knew by that time, that there was no fire; the people shouting, huzzaing, and making the mob whistle as they call it, which when a boy makes it in the street, is no formidable thing, but when made by a multitude, is a most hideous shriek, almost as terrible as an Indian yell; the people crying Kill them! Kill them! Knock them over! heaving snow-balls, oyster shells, clubs, white birch sticks three inches and an half diameter…4
Another problem facing Adams was the legal principle that if one of the soldiers acted with malice and killed someone in the crowd intentionally and not in self-defense, all of the other soldiers would be guilty of murder even if only one committed homicide. It made the defense more difficult because the Crown contended that one of the soldiers, Private Killroy, in fact carried out a threat to kill made the day before.
The Crown presented testimony that the day before the soldiers’ confrontation with the mob, a group of soldiers from the same regiment, including one of the defendants, Private Killroy, had been involved in a fight at the “ropeworks,” a place where sailors and soldiers would go to supplement their meagre income by making ropes for sailing ships. Also employed at the ropeworks were Boston locals. After this altercation, Killroy was heard to say that “he would never miss an opportunity of firing on the inhabitants.” According to the Crown, this was evidence that Killroy acted with malice when he fired his musket at the mob.
Adams took this argument head on. Even if true, it did not matter. Killroy still had the right to defend himself. This is what Adams said:
Hemmingway, the sheriff’s coachman, swears he knew Killroy, and that he heard him say, he would never miss an opportunity of firing upon the inhabitants: this is to prove that Killroy had preconceived malice in his heart, not indeed against the unhappy persons who were killed, but against the inhabitants in general, that he had the spirit not only of a Turk or an Arab, but of the devil; but admitting that this testimony is litterally true, and that he had all the malice they would wish to prove, yet, if he was assaulted that night, and his life in danger, he had a right to defend himself as well as another man; if he had malice before, it does not take away from him the right of defending himself against any unjust aggressor.5
Although there were witnesses who testified that Gray had been at the ropeworks the day before, there was no evidence that Killroy encountered Gray or even knew him. Adams ridiculed the Crown’s argument that Killroy had the intent to kill Gray.
Some of the witnesses, have sworn that Gray was active in the battle at the Rope walks, and that Killroy was once there, from whence the Council for the Crown would infer, that Killroy, in King-street, on the 5th of March in the night, knew Gray whom he had seen at the Rope-walks before, and took that opportunity to gratify his preconceived malice…6
As to the alleged threat, Adams took the sting out of the Crown’s argument by portraying Killroy’s statements as a natural reaction of a man who had just come out on the losing end of a violent altercation.7
What can lawyers today learn from this part of Adams’s argument? First, prosecutors and defense attorneys always jockey for advantage by telling jurors to use their common sense. Here Adams, without expressly asking the jurors to use their common sense, demonstrated how his interpretation of the events made more sense than the Crown’s. His argument reflected advice to lawyers and authors alike, “show, don’t tell.”
Second, while today jurors pledge to follow the law as instructed by the court, counsel should consider whether an argument can be made that the prosecutor’s explanation of the law is incomplete, and that properly understood, the law does not apply to the defendant’s conduct.
Finally, in the face of prejudicial testimony, counsel should formulate an alternate hypothesis as to how the circumstances could have come about in a way that does not damage the defendant.
Adams vividly explained his clients’ actions within the context of what was going on around them. Adams eloquently painted a picture for the jury of men acting under extreme conditions that left them no alternatives. Here is Adams, describing the fear the soldiers must have felt:
[T]hese soldiers were in such a situation, that they could not help themselves; people were coming from Royal-exchange-lane, and other parts of the town, with clubs, and cord wood sticks; the soldiers were planted by the wall of the Custom House; they could not retreat, they were surrounded on all sides, for there were people behind them, as well as before them; there were a number of people in Royal-exchange-lane; the soldiers were so near to the Custom house, that they could not retreat, unless they had gone into the brick wall of it. I shall shew you presently, that all the party concerned in this unlawful design, were guilty of what any one of them did; if any body threw a snow-ball, it was the act of the whole party; if any struck with a club, or threw a club, and the club had killed any body, the whole party would have been guilty of murder in law.8
Notice how Adams has violated the proscription on Golden Rule arguments with impunity without actually violating the rule at all. He doesn’t tell the jury to put themselves in the soldiers’ shoes, or ask them to decide what they would do if they were confronted with an angry mob. Instead, he has them see the events through the soldiers’ eyes, and he so vividly describes those events that the jurors surely felt some of the fear the soldiers experienced.
Remember too, if Killroy intentionally fired his musket, that intent would be imputed to the other soldiers. Here, Adams brilliantly turned the Crown’ argument against it, applying this principle to the mob.
[I]f any body threw a snow-ball, it was the act of the whole party; if any struck with a club, or threw a club, and the club had killed any body, the whole party would have been guilty of murder in law.
If divers come with one assent to do mischief, as to kill, rob, or beat, and one doth it, they are all principals in the felony. If many be present, and one only gives the stroke whereof the party dies, they are all principal, if they came for that purpose.9
Just as importantly, Adams didn’t just recite the law, he explained its purpose: “This is the policy of the law: to discourage and prevent riots, insurrections, turbulence and tumults.”10
Although the opportunity to turn the government’s argument against itself does not arise often, it can be a devastating attack as Adams showed.
Adams challenged the jury to consider what option the soldiers had.
Would it have been a prudent resolution in them, or in any body in their situation, to have stood still, to see if the sailors would knock their brains out, or not? Had they not all the reason in the world to think, that as they had done so much, they would proceed farther? Their clubs were as capable of killing as a ball, an hedge stake is known in the law books as a weapon of death, as much as a sword, bayonet, or musket.
When the multitude was shouting and huzzaing, and threatning life, the bells all ringing, the mob whistle screaming and rending like an Indian yell, the people from all quarters throwing every species of rubbish they could pick up in the street, and some who were quite on the other side of the street throwing clubs at the whole party, Montgomery in particular, smote with a club and knocked down, and as soon as he could rise and take up his firelock, another club from a far struck his breast or shoulder, what could he do? Do you expect he should behave like a Stoick Philosopher lost in Apathy? Patient as Epictatus while his master was breaking his leggs with a cudgel? It is impossible you should find him guilty of murder. You must suppose him divested of all human passions, if you don’t think him at the least provoked, thrown off his guard, and into the furor brevis, by such treatment as this.11
Adams methodically recounted the testimony of each of the witnesses to show how Crown’s evidence demonstrated that the soldiers only fired their weapons when they perceived that their lives were in jeopardy.
Bailey swears, Montgomery fired the first gun, and that he stood at the right, “the next man to me, I stood behind him, &c.” This witness certainly is not prejudiced in favour of the soldiers, he swears, he saw a man come up to Montgomery with a club, and knock him down before he fired, and that he not only fell himself, but his gun flew out of his hand, and as soon as he rose he took it up and fired. If he was knocked down on his station, had he not reason to think his life in danger, or did it not raise his passions and put him off his guard; so that it cannot be more than manslaughter.12
In response to the argument that the soldiers should not have been where they were, Adams said:
[S]urely the officer and soldiers had a right to go to his relief [the sentry], and therefore they set out upon a lawful errand, they were therefore a lawful assembly, if we only consider them as private subjects and fellow citizens, without regard to Mutiny Acts, Articles of War, or Soldiers Oaths; a private person, or any number of private persons, have a right to go to the assistance of their fellow subject in distress and danger of his life.13
Unfortunately, Adams closing argument is rarely studied today, lawyers paying lip service to it by quoting Adams final remarks that “facts are stubborn things.” It is true that Adams closing would have been shorter today than in was in 1770. Much of his argument was taken up by long passages where he explained the law to the jury and quoted at length from legal authorities. A court would not allow such a long discourse today and would sustain an objection that it was the court’s role to instruct the jury on the law. But even here, Adams has an important lesson for trial lawyers today. Don’t just stop with reviewing the jury instructions. If there is one statute that can be made to support the defense, and you have sufficient time, take the opportunity of explaining why the law is right and how it should be applied to your client. You do not need to quote Hale and Coke, just what the legislature intended.
Another technique is to use analogies to explain why a legal principle that seems to apply to your client on its face, does not. Adams effectively used analogies to make such points.
An example of this was the suggestion that since someone died, someone had to pay the price, in this case the soldiers, even if they did not do the killing. This was no idle concern because one of the prospective jurors had voiced just such an opinion. Since some of those killed had been innocently present and were not part of the mob attacking the soldiers:
[I]nnocent blood having been shed, that must be expiated by the death of somebody or other. I take notice of this, because one gentleman nominated by the sheriff, for a Juryman upon this trial, because he said, he believed Capt. Preston was innocent, but innocent blood had been shed, and therefore somebody ought to be hanged for it.14
Adams responded to this sentiment by using an analogy to demonstrate why this was not the law:
I will put a case, in which, I dare say, all will agree with me: Here are two persons, the father and the son, go out a hunting, they take different roads, the father hears a rushing among the bushes, takes it to be game, fires and kills his son through a mistake; here is innocent blood shed, but yet nobody will say the father ought to die for it. So that the general rule of law, is, that whenever one person hath a right to do an act, and that act by any accident, takes away the life of another, it is excusable, it bears the same regard to the innocent as to the guilty.15
Trial lawyers are often told that the best way to persuade a jury is through story. But events don’t always lend themselves naturally to a narrative and sometimes the state has a better story to tell; in which case winning depends on discrediting the state’s version of events.
It’s also hard to tell a traditional story with a beginning, middle, and end when you have limited time and much of it has to be spent discussing the contradictions in the witnesses’ testimony. How best to use storytelling to persuade a jury is beyond the scope of this book, but Doug Passon in “The Narrative Gym for Law,” has a simple technique that inexperienced and experienced lawyers alike can use in making arguments to juries and even judges.
In the Boston Massacre case Adams did two things. As discussed above, he made the jury see and feel what the soldiers did. But he also engaged in a witness-by-witness attack on the Crown’s case, showing how a witness’s account was contrary to the unimpeachable evidence or how it supported the defense. Adams demonstrated that the Crown’s version of the facts was not true. From a trial tactical standpoint, Adams proved his theory of the case by repeatedly intertwining the defense with his discussion of each witness’s testimony, showing over and over that the Crown’s witnesses did not demonstrate beyond a reasonable doubt that the defendants were guilty of murder; a master’s class we can all learn from.
Fundamentally, Adams knew something that lawyers rarely talk about today. That the best way of convincing the jury is to give them the tools they need to create their own narrative. If you can do that, the jury will come up with their own story. It may not be the story you believe or the story you told them. But it is more likely a story that will end with the words “not guilty.”
1 These facts, as well as details about each of the witness’s testimony, can be found in Dan Abrams’s and David Fisher’s book, John Adams under Fire, (2020). A more comprehensive discussion about what led up to the confrontation can be found in Hiller B. Zobel, The Boston Massacre, (1976).
2 The Trial of the British Soldiers, p. 114-116, transcript published by Williams Emmons 1824, Library of Congress (hereinafter Adams), https://www.loc.gov/collections/john-adams-and-the-boston-massacre-trial-of-1770/.
3 Adams, p. 104.
4 Adams, p. 99.
5 Adams, p. 112.
6 Adams, p.112.
7 Adams, p. 113.
8 Adams, p. 100.
9 Adams, p. 100-101, 102.
10 Adams, p. 101.
11 Adams, p. 111.
12 Adams, p. 116.
13 Adams, p. 105.
14 Adams, p. 106.
15 Adams, p. 106.
16 “The Boston Massacre,” Wikipedia, https://en.wikipedia.org/wiki/Boston_Massacre, Aug. 24, 2022