Jay Leiderman: On the Defense of Criminals

Jay Leiderman
By: Jay Leiderman
September 02 2016

Why is it forever necessary for one to defend a career choice?  On the Defense of Criminals is my personal statement, taking a historical and political view of why one would undertake the defense of criminals, and why every lawyer should, at least once in their career, undertake the endeavor.

On the Defense of Criminals; An Essay by Jay Leiderman

4 July 2009

It is fashionable always to cast aspersion upon those that defend persons accused of committing crimes.  The viler the accused crime, the more vigorous defense the accused needs, yet, at the same time, the more vitriol the defense attorney will face.  I cannot speak for my brethren in the legal community, I can only state that what follows is my own brand of patriotism; I defend those charged with crimes because it is both my duty as a lawyer and as an American.  Each piece of resistance to the encroachment of overreaching governmental power is, in and of itself, a victory for freedom.  You may find that a striking feature of this essay is that I do not use the term “alleged” criminals.  I do thus with a single purpose in mind.  The proposition is well understood amongst defense attorneys: the more guilty the defendant, the more in need they are of committed and skilled representation.  Accordingly, please indulge me herein.

I can only state that what follows is my own brand of patriotism

defense of criminalsAs dawn was yet to break upon the United States of America an event came to pass that so aroused the passions and prejudices of a nation that it perhaps might, in its day, have shared equal billing with something like the recent mass shootings or even terrorist attacks.  In a period of rising tensions, clashes between British soldiers and the people of Boston grew commonplace.  One day in March of 1770, a lone soldier and then later several British soldiers became surrounded by an angry mob of a few hundred protesting patriots who were furiously addressing grievances to the soldiers.  Snowballs and other such things were allegedly hurled at the soldiers.  One reported that he had his rifle and bayonet grabbed one his rifle knocked from his hands.  The soldiers retreated into a semi-circle, bayonets raised, and shouted for the crowd to disperse. The crowd grew. Tensions escalated and broke open, spilling blood upon the streets of Boston. Soldiers had fired into the crowd despite the fact that the ranking officer, Captain Preston, did not so order.  Five people were killed and more were injured.  This incident became known as the Boston Massacre.

Patriots John Hancock and Samuel Adams used the event as a flash point.  The soldiers must face the death penalty, they said.  It would certainly be tough to pick a fair jury in Boston.  First, though, came the task of finding a willing lawyer to represent the nine soldiers at trial.  Time passed, and no one in Boston rose to the challenge.  Then, much to everyone’s surprise, at the request of Captain Preston, Sam Adams’ cousin John Adams accepted the task.  He understood that the defense of the unpopular, the scorned and the defenseless was our obligations as patriots, and moreso as soon to be Americans.  He understood that to offer the best defense to these objects of hate and symbols of imperialism was what made us, as Americans, unique and special.  He tried an earnest and prideful case to the vitriol of Colonial Boston.  He won acquittal for 6 soldiers and manslaughter verdicts with significantly reduced sentences for the two proven to have fired upon the crowd.  There was a second trial for the Captain Preston, and Preston was acquitted.

defense of criminals
Boston Massacre

the defense of the unpopular, the scorned and the defenseless was our obligations as patriots

Here is a portion of Adams’s simple yet elegant summation:

I will enlarge no more on the evidence, but submit it to you.-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: nor is the law less stable than the fact; if an assault was made to endanger their lives, the law is clear, they had a right to kill in their own defense; if it was not so severe as to endanger their lives, yet if they were assaulted at all, struck and abused by blows of any sort, by snow-balls, oyster-shells, cinders, clubs, or sticks of any kind; this was a provocation, for which the law reduces the offence of killing, down to manslaughter, in consideration of those passions in our nature, which cannot be eradicated. To your candour and justice I submit the prisoners and their cause. 

Not surprisingly, reactions to the verdicts varied. Samuel Adams expressed his displeasure in a letter signed “Vindex.”  On the other hand, Samuel’s second cousin, John Adams, found the verdicts deeply satisfying. Looking back at the trials after an illustrious career that had taken him to the White House, Adams said:

defense of criminalsThe Part I took in Defence of Cptn. 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. Judgment 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.

For these reasons, and more, I dedicate myself to the defense of the accused, be those accusations just or unjust. Therefore I remain humbly at your service.

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