Doing essential but unpopular things. This is how Judge James E. Lockemy aptly described the shared legacy of two men living in different centuries. We learned more about John Adams and Thurgood Marshall from panelists Judge Frank Sullivan (ret.) and Professor Joyce Lee Malcolm.
Judge Sullivan reminded us of John Adams’ taking the case of soldiers who had fired on civilians at a melée not far from our conference location. Professor Malcolm told us about two regiments of Boston-based soldiers who came to the aid of a sentry set upon by civilians. Applicable rules prevented firing on civilians unless a magistrate approved the circumstances. When the sentry ultimately called for help, eight soldiers came to his aid as the crowd grew. When civilians began to take guns away forcibly from some of the soldiers, someone yelled, “Fire!” At that point, the soldiers fired on the crowd.
The sentry and soldiers were arrested and imprisoned. Impassioned public sentiment arose against the arrested men. No one was willing to represent the soldiers, but when asked, John Adams agreed to do so. The case required diligent work on elaborate issues in a common-law court. The trial lasted several days. To ameliorate the passion and bias against the soldiers at the outset, Adams argued that the soldiers were also citizens whose lives were ordinary and difficult. Having built this bridge, he was able to explain effectively to the jury how to place the soldiers’ actions in context of the applicable law. Only two soldiers were punished (by branding on the thumb); the remainder were absolved based on Adams’ defense and applicable law.
Judge Sullivan explained how Thurgood Marshall built a meaningful practice in cases such as Shelly v. Kramer. As gains achieved in cases like Shelly began piling up, Thurgood Marshall became a legend among Black Americans. He devoted his time and advocacy not only to direct challenges to segregation but also to fighting discrimination in the form of unjust criminal charges leveled against young Black men. For example, a Black man, William Lyons, was accused of committing a gruesome triple murder in Oklahoma in 1939. Subsequent research suggests the murder was orchestrated to silence a man against a bootlegging operation in which the state governor was involved. At the time, the police investigation was transferred to the governor’s special investigator, who obtained a confession from Lyons after hours of a physical beating. Marshall traveled to Oklahoma to defend him.
Marshall predicted no way to win in front of a jury. Indeed, the jury did convict Lyons but recommended mercy, not death. This verdict was widely recognized as a sign the jury did not believe Lyons was guilty. The Oklahoma Court of Criminal Appeals affirmed the conviction, though a dissent said Lyons didn’t receive a fair and impartial trial. Marshall devoted his resources to appeal to the U.S. Supreme Court.
In 1943, SCOTUS had stricken the convictions of two men who had been arrested in the middle of night then subjected to unremitting interrogation. Nevertheless, on June 5, 1944, SCOTUS upheld Lyons’ conviction. Justice Stanley Reed’s opinion found that any error from a coerced confession was harmless. Justice Frank Murphy, who had dissented in Korematsu v. United States, was equally passionate in his dissent here. The Lyons opinion confirmed the ugly reality that the American justice system, however praised, was still poisoned by brutality, coerced confessions, politicization, the inability of the indigent to obtain competent counsel, biased juries, and so many more problems. Marshall later expressed that the Lyons case left a gaping wound in his heart.
Judge Sullivan drew some comparisons here between Adams and Marshall. Adams had an ethic that motivated him to take on the British soldier case in a highly charged political environment of anti-British sentiment, just as Marshall was motivated to take on the Lyons case in the highly charged political environment of the 1940s. Professor Malcolm observed that Adams identified with the anti-British sentiment and wasn’t championing people he supported, as Marshall was able to do. The British soldier case involved the risk of a mark against the emerging country and a detriment to morale if no one had defended the soldiers and they had been sentenced to death. The Massachusetts charter included a promise that those who came here would have same rights and privileges as in England. This promise included a court system that had authority to prosecute the soldiers but also imposed procedures to protect their rights. It was essential that Adams take something unpopular and apply proper legal procedure to it, with best possible defense, even if it negatively impacted him professionally and in the community.
