In the current race for governor of Massachusetts, Republican candidate Kerry Healey is running ads that attack Democratic candidate Deval Patrick for serving as attorney for people who turned out to be guilty. Healey's ads ask, "While lawyers have a right to defend admitted cop killers, do we really want one as our governor?" and, "What kind of person defends a brutal rapist?"
Despite her claim of being an expert on criminal justice, Healey apparently doesn't understand the protections our Constitution provides us. It's not that "lawyers have a right" to defend the accused or even the convicted during their appeals; defendants have the right to that adequate counsel, and the legal system has an obligation to provide it.
In fact, for major crimes this legal tradition predates the U.S. Constitution, as many historians and attorneys in Massachusetts have pointed out in response to Healey's ads. Most editorials on this matter have cited John Adams's decision to represent Capt. Thomas Preston and the soldiers tried for the Boston Massacre on 5 March 1770. I suspect Adams gave himself a little too much credit there, as I'll discuss in a future post.
But we have solid evidence that Adams's younger colleague, Josiah Quincy, Jr., was criticized for agreeing to defend the soldiers, and his response. As discussed in the Colonial Society of Massachusetts's new volume, Portrait of a Patriot, Quincy was an energetic advocate for the Whig party in the pre-Revolutionary political debates. He died of tuberculosis on the eve of the Revolution but was remembered widely because he fathered the first Josiah Quincy to become mayor of Boston. Quincy's father, Col. Josiah Quincy of north Braintree (later called, like almost everything else in this paragraph, Quincy), wrote to Josiah, Jr., on 22 March 1770:
My dear Son,Even John Adams recalled that the military had approached Quincy first. Ironically, the brother in whose house the sergeant had found him, Samuel Quincy, became one of the prosecutors in the case.
I am under great affliction, at hearing the bitterest reproaches uttered against you, for having become an advocate for those criminals who are charged with the murder of the fellow citizens. Good God! Is it possible? I will not believe it.
Just before I returned home from Boston, I knew, indeed, that on the day those criminals were committed to prison, a sergeant had inquired for you at your brother’s house,—but I had no apprehension that it was possible an application would be made to you to undertake their defence. Since then I have been told that you have actually engaged for Captain Preston;—and I have heard the severest reflections made upon the occasion, by men who had just before manifested the highest esteem for you, as one destined to be a saviour of your country.
I must own to you, it has filled the bosom of your aged and infirm parent with anxiety and distress, lest it should not only prove true, but destructive of your reputation and interest; and I repeat, I will not believe it, unless it be confirmed by your own mouth, and under your own hand.
Your anxious and distressed parent,...
Four days later the young lawyer replied to his father from Boston:
Honoured Sir,Samuel Adams, John Hancock, William Molineux, Thomas Cushing, Joshua (probably) Henshaw, Samuel Pemberton, Dr. Joseph Warren, William (or the Rev. Dr. Samuel) Cooper, and William Phillips made up the bulk of genteel Whig office-holders and activists in Boston. They all agreed that Quincy should take the case and ensure the soldiers received a fair trail.
I have little leisure, and less inclination either to know, or to take notice, of those ignorant slanderers, who have dared to utter their "bitter reproaches" in your hearing against me, for having become an advocate for criminals charged with murder. But the sting of reproach when envenomed only by envy and falsehood, will never prove mortal.
Before pouring their reproaches into the ear of the aged and infirm, if they had been friends, they would have surely spared a little reflection on the nature of an attorney’s oath, and duty;—some trifling scrutiny into the business and discharge of his office, and some portion of patience in viewing my past and future conduct.
Let such be told, Sir, that these criminals, charged with murder, are not yet legally guilty, and therefore, however criminal, are entitled, by the laws of God and man, to all legal counsel and aid; that my duty as a man obliged me to undertake; that my duty as a lawyer strengthened the obligation; that from abundant caution, I at first declined being engaged; that after the best advice, and most mature deliberation had determined my judgment, I waited on Captain Preston, and told him I would afford him my assistance; but, prior to this, in presence of two of his friends, I made the most explicit declaration to him, of my real opinion, on the contests (as I expressed it to him) of the times, and that my heart and hand were indissolubly attached to the cause of my country; and finally, that I refused all engagement, until advised and urged to undertake it, by an Adams, a Hancock, a Molineux, a Cushing, a Henshaw, a Pemberton, a Warren, a Cooper, and a Phillips.
The young lawyer continued:
This and much more might be told with great truth, and I dare affirm, that you, and this whole people will one day REJOICE, that I became an advocate for the aforesaid "criminals," charged with the murder of our fellow-citizens.A few weeks later, Quincy also agreed to represent Ebenezer Richardson, an even less popular defendant charged with killing young Christopher Seider and already notorious for impregnating his wife's sister.
I never harboured the expectation, nor any great desire, that all men should speak well of me. To inquire my duty, and to do it, is my aim. Being mortal, I am subject to error; and conscious of this, I wish to be diffident. Being a rational creature, I judge for myself, according to the light afforded me. When a plan of conduct is formed with an honest deliberation, neither murmuring, slander, nor reproaches move. For my single self, I consider, judge, and with reason hope to be immutable.
There are honest men in all sects—I wish their approbation;—there are wicked bigots in all parties,—I abhor them.
I am, truly and affectionately,
Josiah Quincy Jun.
I think Quincy's letter provides a fine answer to the Republican question: What kind of person defends an unpopular defendant accused of a serious crime?