Dan Abrams, author of the the New York Times bestseller "John Adams Under Fire," never stops working. He's the chief legal affairs correspondent for ABC News, host of A&E's "Live PD," and also hosts a daily radio show on SiriusXM and runs various media related businesses and more. Somehow he finds time to write popular accounts of legal history —this one co-authored with David Fisher — and joined me recently to chat about it for "Salon Talks."
Abrams previously wrote the bestseller, "Lincoln's Last Trial," about the final case Abraham Lincoln argued in court before becoming the 16th president, which he discussed on his last visit to Salon. This time he explores a legal case from before the time the United States was formed, one that still has an impact on our legal system to this day. In fact, this trial paved the way for the concept of a criminal defendant being convicted "beyond a reasonable doubt" and a criminal justice system that guarantees an impartial jury.
Adams, who would go on to serve as our nation's second president, was a well-known Boston lawyer when, on March 5, 1770, British troops fired shots into a crowd of protesting, unarmed colonists, killing five and wounding six. This incident became known as the Boston Massacre after the British soldiers and their commanding officer were charged with crimes for this shooting. Adams agreed to defend them, but that came at a steep personal price. He lost half his legal business and was the subject of criticism and threats for being a traitor.
Abrams told me lawyers will often cite Adams' example when they defend their decision to represent unpopular defendants, whether that's an accused mobster or Harvey Weinstein. But what Adams went through was far more challenging, since he was representing soldiers who had killed his fellow colonists at a time when tensions between the British crown and colonists were building. That conflict would ultimately lead to the American Revolution. It was Adams' principled stand in this case that helped pave the way for criminal defendants' guaranteed right to counsel, later enshrined in the Sixth Amendment. He may not have had a beer named after him like his cousin Samuel, but his impact on our legal system is still with us today. Watch my "Salon Talks" episode with Dan Abrams here, or read a Q&A of our conversation below.
The following transcript has been lightly edited for clarity and length.
You've written about other historical figures before: Teddy Roosevelt and Abraham Lincoln. Why John Adams? What drew your attention to him now?
The theme throughout all of these books has been a transcript of a trial. The first book started with Lincoln's last trial, and my co-author David Fisher brought me this project and he said to me, "You're going to find this hard to believe, but in 1989 in the garage of the great-grandson of the defendant, they found the only trial that Lincoln ever argued transcribed and no one's written about it." I said, "Come on, no one's written about the only case that Lincoln ever argued that's ever been transcribed?" He was right.
So we told the story in "Lincoln's Last Trial" of this 1859 case, nine months before Lincoln gets the Republican nomination. We said, this is a cool theme: Using a transcript of a trial to tell an amazing story. From there, we went to Theodore Roosevelt. We had the entire transcript of a case where he was the defendant. Then we were surprised to find out that there is this 217-page transcript from 1770 of John Adams defending the British soldiers in the Boston Massacre case.
The Boston Massacre — people have probably heard about it. But give us a sense of the climate. of what was going on and the tension that was building. What was happening in that time?
You mention the tension, and what most people know about is the frustration here in the colonies, right? They were taxing us and were increasing the taxes. We all learned about the different taxes, the sugar tax and the Townshend Acts, etc., but what people don't really think about is how frustrated the British were at the time as well. They had just concluded a number of long, painful and expensive wars, which they believed they were doing in part for the colonists.
So they feel they've got these ingrates who are their subjects, who are providing no level of appreciation for how much pain they have endured. The colonists are thinking, what are you talking about? You're trying to tax us from abroad? So you had this back and forth going on, and then you had this incident on March 5, 250 years ago where British soldiers shoot and kill five colonists, and it literally could have led to the revolution. It could have been the catalyst that led to the revolution.
It seems pretty clear that the reason that didn't happen was because people believed in the rule of law. The governor of Massachusetts at the time was a loyalist. People were freaking out in the streets. They wanted vengeance. He came out and assured the people that we will live and die by the law. We almost thought about that for the title of the book: Live and die by the law. I thought it was such a great concept. But in the end that's what happened: People had faith in the law and John Adams took a very unpopular position representing these soldiers.
Three soldiers shot into a crowd, killed five people, and wounded others. And they're, like, OK, we're going to allow this system to take its course. Tell people a little bit about the actual incident. I was amazed at how much they were taunting the troops because of their frustration and their anger over what they were living through.
This was an incident that had actually built up over three days. We lay it out incident by incident and it starts in the immediate events that preceded it, with one soldier who had had a dispute with some colonists who come back. He's guarding a building and they start to taunt him. They start to throw snowballs at him. They start to throw, we think, rocks at him. He calls for backup, in essence, and this is when things start to escalate because the colonists call for backup and suddenly you have anywhere from 75 to 400 colonists who have now gathered and there's no question that snowballs and rocks are being thrown at this point.
The question is exactly what happened before the first shot was fired. Because this is not an incident like we remember from the picture that Paul Revere actually ended up distributing with all the British soldiers in a line with their weapons firing. That is not what happened. This was a much more complicated situation, which was in essence a fight. Now, you still have to answer the question: Why the heck did you need to fire your weapon? And that's what the trial is about. Was it murder? Was it manslaughter? Was it self-defense?
There's no instant justice. These guys, they turn themselves in, they are going to have a trial. I find it interesting that you note in the book that the Crown would usually pardon British officers. Why did the framers give such wide pardon power, knowing that the Crown had abused that? I know that's not in the book, but we're both lawyers and I was intrigued by that.
It's an interesting question and as you know, there were a lot of issues that went back and forth in terms of balance. For example, John Adams tended to be more of a monarchist. I mean, he hated that phrase and he would never say he was a monarchist. But compared to some others who feared anything that resembled a monarchy, Adams actually liked many of the things that looked more like a monarchy than some of the other patriots, leading into 1776.
What's really interesting is the amount of time it took, right? They had to get word across the water. So what the colonists were thinking is, if these guys are convicted and it's murder and it's a death sentence, we want to do it immediately so that the Crown doesn't have time to pardon them.
You have an officer, Capt. Preston, and eight soldiers in two different trials. And here enters John Adams, a successful lawyer, well-regarded. Why does John Adams take this case?
I think for a couple of reasons. First of all, I think he meant it when he said that he believed that everyone deserves a defense, and I think that was first and foremost. I also think that he believed there was a legitimate defense here. One of the things I respect most about what Adams did in this case is that he didn't cross the line. He didn't go after the residents of Boston. He didn't say it's all their fault.
Criminal defense lawyers today always cite John Adams to say, this is why people represent unpopular clients. John Adams represented the British soldiers and that's why I represent Jeffrey Epstein or whoever it is, right? The difference is that John Adams implemented a set of standards where he said, "I'm not going to cross certain lines." So when defense attorneys compare themselves to John Adams today, I often say, all right, fair enough, but I hope you're employing the same restraint, guidance, thoughtfulness and care that John Adams did in his defense.
When you write about John Adams and his commitment to a right to counsel, it really seems like it's laying the groundwork for what becomes the Sixth Amendment in the Bill of Rights, saying that you have the right to counsel. I wonder if Adams was one of the leaders that gave us the foundation for something we take for granted today.
Yeah, and I think that that was long presumed to be part of fundamental rights, this idea of right to an attorney. What I think was most interesting about what this case literally created was the standard of reasonable doubt. That standard didn't exist before this trial. One of the judges used the phrase in instructing the jury, to be convinced of this "beyond a reasonable doubt." And that became the standard that was set as a result of this case. It's also the case where John Adams used the phrase, "facts are stubborn things," and that has now been quoted everywhere. People forget that came from John Adams in this trial.
Talk a little bit about the backlash Adams got for representing British soldiers who killed American colonists, which followed him through his entire life on some level.
I think he got vindicated later in life, but I think he was never quite satisfied that he got enough vindication. And when he took this case, he had rocks thrown through his window. He lost half his law business immediately. People were thinking, why would this so-called patriot take a case defending the despised British soldiers? And what's amazing is, he was a patriot and it's the reason he wouldn't engage in ad hominem attacks on the citizens. He was focusing on exactly what happened here, at this incident. Again, I think it's one of the reasons to admire John Adams.
There were two different trials here, one for the officer, then a second one with the eight soldiers. Were you surprised by the verdict in either of those two cases?
I certainly wasn't surprised by the verdict in Capt. Preston's trial. Capt. Preston's trial was about whether he ordered the soldiers to fire and — spoiler alert from 250 years ago — he was found not guilty.
The real Boston Massacre Trial is the trial of the soldiers. This is the one we have the 217-page transcript from. This is the one where, I don't think there was an order to fire, but they fired. So now it's on the soldiers, and the question is why. What happened? Was it really self-defense? If one of them is found guilty, are you going to convict all of them, etc.? Really interesting questions came up and in the end, I think the jury did exactly the right thing.
It's remarkable to get a glimpse at a jury in the time of the American colonists under siege by the British. This is before the Boston Tea Party, but this is laying the groundwork in a way for the grievances that led to the whole revolution. What I found interesting though — the jury did the right thing, a challenging thing — but I also found the sentencing phase interesting, the "prayer for debt." Tell us about this.
This was an old preexisting opportunity, where you could only use it once. It was supposed to be for people who were very religious, to be able to say in effect that they would read from a particular passage and they would get branded on their hands. It could be somewhere different, but in this case it was on their hands. The reason for the brand wasn't as punishment, but to make sure they didn't do it again. So you've got the brand now on your hand, which says this person has invoked the prayer of the clergy and so they can't do it again.
Both of these soldiers who were convicted of manslaughter end up invoking this and look, it stopped being used because even at this point it was getting to the point where people who were not religious were memorizing passages just to be able to get out of being punished. It was supposed to be a protection for particularly religious folks.
It also reminded me of pre-trial intervention today, where if it's a misdemeanor you could get it dismissed. John Adams does a remarkable thing in this. There's nothing analogous right now. It's not defending Harvey Weinstein. It's not defending Jeffrey Epstein. Those lawyers are compensated very well. And while they may get some snide remarks and stuff, they're fine. This is a guy who had to live with colonists, whose fellow colonists were killed. I can't imagine what it took for that man to stand up and say, I'm doing this.
That's one of the things I think is different from a lot of the people who claim John Adams. Alan Dershowitz claimed John Adams in defending President Trump, and he said, look, you're going to represent people who people aren't going to like. The difference is that 40 percent of the country viewed Alan Dershowitz as a hero for representing Trump. Forty percent of the colonists did not view John Adams as a hero. In fact, his co-counsel's father, who was also a great patriot, wrote to him saying he wouldn't believe that his son had actually taken the case until he heard it from his own mouth. This was the sentiment of the day.
John Adams, as everyone knows serves as George Washington's first vice president, and goes on to be the second president of United States. When people are looking for a vice president and a president, they looked at this and they go, this man has character. I might not have agreed with it, but it's a defining moment in a way.
Look, John Adams was something of a moderate politically, back then, and what's interesting is you talk about him being vice president. Back then being vice president was actually even less relevant than it is today. Literally, he used to sit around — he would oversee the Senate and he was bored much of the time. No one really was listening to him. George Washington was the president. Adams was kind of biding his time as vice president.
What's your biggest takeaway in terms of the significance of this trial?
I'll bring it back to today because I know you talk a lot about current events. It was so important that people appreciated, recognized and accepted the rule of law. When people use the words "constitutional crisis" today, I say there's no constitutional crisis until and unless people start ignoring court orders. That's when we have a constitutional crisis. In this case, they respected the rule of law. They respected the opinion, they respected the jury's verdict. In the end they respected John Adams for taking the case. I think that's what remains so important today: You have to respect the rule of law, have to respect our judges. I hope that people remember John Adams' case when they think about that.
I don't know if John Adams would like the president tweeting about judges.
It's awful that the president talks about our judges the way he does. Because we have to have respect, even if you disagree with them. I get a lot of heat from people saying, I'm not going to respect the judge who does this and this..I'm not asking you to respect a particular judge, I'm asking you to respect the position and what it means.
Let's talk about something beyond this book, something we're facing right now with the coronavirus epidemic. There are questions and articles, even on your website Law and Crime, about the issue of quarantine. If the government orders a quarantine because of this disease, do people have to say, "Yeah, I have no choice," or could they say, "You can't tell me what to do. I'm going out"?
There are two levels to it, right? First, there is a request for a voluntary quarantine that could come from a doctor or a health official. That's basically telling you what you should do. That's not legally binding. If you don't want to do that, but you now have notice and you're saying you're not going to do it, this is where the government can step in and can get an order forcing you to quarantine. Now it varies state to state, municipality to municipality. In certain states, a state of emergency has to be declared in other places, it's a misdemeanor versus the different kinds of punishments.
But there's no question that everywhere, they can get a court order. You can try and fight it, but the only real question becomes, how broad was the order, right? So, you say, wait, they're saying that I am not allowed to leave my bedroom for 30 days. You can challenge it saying, wait a sec, why can't it be the rest of my house and why can't it be for 14 days? It's the same sort of challenge we see in any other legal context, which is that the order's too broad. That's the legal challenge you might see.
Now look, the question is going to be, how severe do the restrictions become and do we start seeing people challenge them? I don't think the challenges will come early on. The legal challenges will come after someone's been quarantined for 21 days, for 28 days. And they say, OK, look, I've got no symptoms. Why am I still here? And the government says, because you're in a certain area or whatever. Those are the sorts of things you could see happen, depending on how bad things get.
In Italy, they've closed everything but supermarkets and pharmacies. Could it be the same scenario if the governor of New York says that all businesses except pharmacies and supermarkets have to close. Would it be up to business owners to go to court and petition to object to that?
Correct. Again, the government has an enormous amount of power. Remember, the federal government's power is typically with regard to interstate commerce and entry into the country, but beyond that it's the states. This is really going to be a state and local issue more than a federal one.
We have governors now recommending not having crowds of people gathering.
Think about someone who refuses to adhere to it, right? They are going to get destroyed on social media, their business, whatever it is. The social media mob to me is a better enforcer than any government could be. Can you imagine the government's saying look, nothing over 250 people and some Coachella-related event says, "Ah, no, you know what? Our people still want to come. We're going to have 700 people there." Look, even Trump is now pulling back. This is the guy who was insisting his rallies will go on. That's not legal enforcement, that's political and social media influence saying, are you kidding?
Every Friday and Saturday nights you host "Live PD" on A&E where you get to observe local law enforcement in action and on patrol. What have you learned from this? You're seeing local policing, while at the same time we're having a debate globally in this country about police reform andcriminal justice reform. What do you see on a nightly basis?
I think it's an important question because what I see in my role in the news media is the officer-involved shootings, right? It's either an officer has been shot or an officer has shot someone. That's almost exclusively what we cover. And then there's the 99.999 percent of what police officers do every day. There's a reason that so many people now support body cameras in policing, and I think they're a great idea. This is an extension of that. We are watching police officers in action.
As you may know, I've been a longtime advocate of cameras in courtrooms. That's why I have the Law & Crime network where we cover trials live. It's not apples to apples when it comes to police. There are more sensitivities. But I think it's a good thing to be able to watch our police officers in action, seeing what they do, and sometimes what they do wrong. But on the whole, there's no question, you get a better picture of what it's like to be a police officer every day from watching "Live PD."
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