Republicans have attacked judicial nominees for having been public defenders, that is, for having defended poor people charged with crimes. These critics may be trying to raise a soft-on-crime banner, but they aren’t pledging fealty to the Constitution when they do so. These “conservatives” do not seem to know an important decision made by our Founders about defense counsel and our fundamental rights.
You might take it for granted that those accused of crimes can have a lawyer to aid with their defense and assume that that right goes back to time immemorial, but when our country was formed, English law did not permit a defense counsel in criminal cases. It was not just that English law did not provide a lawyer for a person who could not hire one. Instead, those charged with felonies, even those facing execution, were forbidden from having an attorney.
Our founders rejected those English restrictions. The Sixth Amendment to the Constitution, which followed state constitutions that had already granted the right, guaranteed the right to a defense lawyer in criminal cases: “In all criminal prosecutions,” it states, “the accused shall enjoy the right . . . to have the assistance of counsel for his defence.”
This was not some abstract right for the founders for they acted as those lawyers to defend unpopular clients charged with crimes. For example, there was this one future president….
On March 5, 1770, while British soldiers were occupying Boston, a dispute erupted at the Custom House. The soldiers, led by Captain Thomas Preston, opened fire. Three Bostonians were instantly killed, and two others died soon afterwards. The event became known as the Boston Massacre.
The soldiers were tried for murder in two separate trials. Captain Preston was prosecuted first, and the rest of the soldiers jointly tried later. With the defendants claiming self-defense as justification, Preston and five of the other soldiers were acquitted by juries, while two others were convicted only of manslaughter.
The lead counsel for the reviled defendants was John Adams—yes, that same John Adams who was our first vice-president and our second president. His defense did not stand in the way of these later political successes even if today some Republican senators would try to use his advocacy to prevent him from serving in the federal government. Adams, however, was proud of his action. Three years after the trials, as the drums of the Revolution beat ever louder, Adams wrote that a “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.” The right to defense counsel that existed in Massachusetts had helped prevent that blot.
John Adams was not the only lawyer of the founding generation to act as a defense counsel for the unpopular. Gulielma Sands lived in a New York City boarding house run by her cousin and her cousin’s husband, Catherine and Elias Ring. On December 22, 1799, Sands left that house never to return. On January 2, 1800, her body was fished out of the Manhattan Well. Newspapers flooded the town with rumors suggesting that fellow boarder, Levi Weeks, had killed her.
Public titillation ran high and only a fraction of those seeking to attend the subsequent trial of Weeks got into the crowded courtroom. The case seemed simple but damning for Weeks. The prosecution maintained that he and Sands had become intimate. He had promised to marry her. People in the boardinghouse thought that the two had left the house together on December 22 for their marriage. Weeks returned later that evening, however, and claimed not to have been with her. A few days later, a boy found Sands’s muff in the Manhattan Well, and on January 2 her body was recovered. Doctors said that she had been strangled before being thrown into the well, and Weeks had intimated that her body was there before that fact was publicly known.
The defense attorneys brilliantly shredded every part of the prosecution case, and Weeks was acquitted by a jury after five minutes of deliberations despite the publicity against him. The acquittal, however, did not return his standing in New York. He remained despised as a seducer and murderer and soon left for Mississippi.
While the accused did not recover his reputation, the defense of this unpopular person did not tarnish his lawyers. People may have had many negative thoughts today and back then about Aaron Burr, soon to be vice-president, and Alexander Hamilton, but none stem from their defense of Levi Weeks. (Although they were political enemies, Burr and Hamilton appeared in the same courtroom, sometimes on the same side as in the Weeks trial and sometimes as opponents, during nearly every important legal case in New York City after the Revolution.) A third lawyer, Brockholst Livingston, joined them at the defense table. His participation did not stop Thomas Jefferson from nominating him to the Supreme Court, where he served for seventeen years. (Don’t take all your history from musicals. Hamilton refers to the Weeks trial, but has it set at an incorrect time.)
The founders guaranteed a right to counsel. The founders acted as defense counsel. Today they would be attacked for this.
Conservatives, however, attack public defenders for another reason. Those defenders do not just represent those accused of crimes. They represent the poor, the outcast, the powerless, and that also makes the defenders dangerous to Republican senators who apparently think that only those who have served the rich and powerful should be in the government, and that is especially true for the Supreme Court.