William K. Black, August 5, 2016 Bloomington, MN

Part 5 of my series on Race, Crime, and Policing

I explained in my two prior columns the blood libels against “whites” as a race and law enforcement officers (LEOs) made by the sociologist Michael Eric Dyson.  Dyson was particularly vitriolic in complaining that whites refused to “condemn” LEOs who shot blacks until they knew whether the LEOs had acted criminally or even improperly.  Dyson portrays this adherence to due process and the rule of law by whites as an outrageous moral failure.  This column explains two famous incidents that played critical roles in shaping our society’s view that we should celebrate the moral courage required to maintain respect for due process in circumstances where much of the public is baying for its destruction.

“Facts are Stubborn Things”

I was taught as a child, as an undergraduate studying history, and as a law student that one of the proudest moments in the process that led to the founding of our Nation was an action by an American lawyer that epitomized the highest ethical principles of the profession.  The action was the lawyer’s defense of quasi-LEOs (there was no real public police force at this time) who shot and killed five Americans, one of them black.  The defense lawyer went on to great achievements, yet in his old age he wrote that his defense of the quasi-LEOs was among his proudest memories.

That black American was armed with a club and part of a mob confronting the quasi-LEOs.  One aspect of the lawyer’s defense strategy was to blast the black American with the club as a thug.  Contemporaneously, the defense counsel’s second cousin, a brilliant polemicist, made an impassioned defense of the black American’s right to arm himself with the club.  This complicated fact pattern is part of the reason why the black American, rather than continuing to be vilified as a thug, was (eventually) presented to generations of American students as a hero.

The black American was one of five Americans members of the mob killed in the mass shooting.  The case offers a series of opportunities to test Dyson’s demand that “whites” “condemn” LEOs who shoot blacks before there is an investigation of the facts, before the LEOs have been able to present their defense, before the LEO’s counsel can cross-examine the prosecution’s witnesses, and before any trial.

The quasi-LEOs were confronted with a mob and some members of the mob, including a black man, had potentially lethal weapons.  The mob was shouting vile insults at the quasi-LEOs and behaving in a menacing manner.  After the killing of the five Americans, the citizenry was enraged at the quasi-LEOs and demanding their immediate, severe punishment.  The defense lawyer knew that he was taking a grave risk of destroying his reputation, his legal practice, and his political ambitions and putting his family at risk of attack.  Legal historians write that the lawyer did not hesitate to accept the defense, despite these risks.

[He] believed deeply that every person deserved a defense, and he took on the case without hesitation.  For his efforts, he would receive the modest sum of eighteen guineas.

In his first case, the lawyer was defending Captain Prescott, the officer in charge.  Witnesses for the prosecution testified that Prescott gave the order to his men to fire.  UMKC Law Professor Dennis Linder explains how the defense counsel obtained an acquittal of Preston and six of the eight quasi-LEOs.

Adams succeeded in casting grave doubt as to whether Preston ever gave orders to shoot, and the Boston jury acquitted the captain.

More detailed records exist for the Soldiers’ trial, which commenced on December 3[, 1770].  Adams presented evidence that blame for the tragedy lay both with the “mob” that gathered that March night and with England’s highly unpopular policy of quartering troops in a city.  Adams told the jury: “Soldiers quartered in a populous town will always occasion two mobs where they prevent one.”  He argued that the soldier who fired first acted only as one might expect anyone to act in such confused and potentially life-threatening conditions. “Do you expect that he should act like a stoic philosopher, lost in apathy?”, Adams asked the jury. “Facts are stubborn things,” he concluded, “and whatever may be our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence.”

The jury acquitted six of the eight soldiers, while two (Montgomery and Killroy) were convicted of manslaughter and branded on their thumbs.

Initial reaction to Adams role in the case was hostile.  His law practice dropped by over half.  In the long run, however, the courageous actions of Adams only enhanced his growing reputation.

The mass shooting, of course, is known as the Boston Massacre.  John Adams, the indispensable man of American independence, was the defense counsel.  Samuel Adams was his second cousin and the man who publicly defended Christopher Attucks’ right to arm himself with a club.  Prior to the trial, the public “knew” that the British soldiers were guilty of murder.  They “knew” that Prescott had ordered his men to fire.  But, as Linder explains, we know now that Adams was able to convince the jurors through his cross-examination of the prosecution witnesses that their testimony against Captain Prescott was false.  Indeed, we know that the prosecution witnesses’ testimony that Prescott ordered his men to fire was in fact false.

A Man for All Seasons: Sir Thomas More

If John Adams’ experience is insufficient to lead Dyson to understand why we refuse to “condemn” criminal defendants without the facts, the right to present a defense, and before a trial before a jury, perhaps he will accept counsel from the patron saint of lawyers, Sir Thomas More as presented in the screenplay for the justly famous movie, A Man for All Seasons.  The context is that More’s family urges him to arrest the man who will ultimately betray him through perjured testimony.

Arrest him!

-For what?

-He’s dangerous!

-Libel. He’s a spy!

-That man’s bad!

-There’s no law against that.

-God’s law!

-Then God can arrest him.

-While you talk, he’s gone!

At this juncture, More’s future son-in-law, Will Roper, debates More.

More: Go he should, if he were the Devil, until he broke the law.

Roper: Now you give the Devil benefit of law!

More: Yes, what would you do?

Cut a road through the law to get after the Devil?

Roper: Yes. I’d cut down every law in England to do that.

More:  And when the last law was down,

and the Devil turned on you…

…where would you hide, Roper,

the laws all being flat?

This country is planted with laws

from coast to coast…

…Man’s laws, not God’s,

and if you cut them down…

…and you’re just the man to do it…

…do you really think you could stand

upright in the wind that would blow then?

Yes.

I give the Devil benefit of law

for my own safety’s sake.

Conclusion

Americans who refuse to give in to Dyson’s demands that we “condemn” LEOs for crimes they may not have committed should be praised.  Dyson condemns LEOs and the provision of due process to LEOs.  As John Adams stressed, facts are stubborn things – and it is vital to get those stubborn, often inconvenient facts before condemning LEOs.  Our history has repeatedly taught this lesson, both when we listened to the better angels of our natures and refused to condemn defendants without due process, and when we listened to our worst demons and lynched people, mostly blacks.

The paradox, of course, is that when a LEO shoots someone other than an escaped convict he or she does so without the due process required for a criminal conviction.  Worse, the person who is shot may be innocent or he or she may have committed only a minor offense where the appropriate punishment is probation or a minor fine.  These are only some of the reasons why we should all be working together on a broad range of policy changes to greatly reduce the frequency of LEOs injuring or killing anyone.