The Spirit of 76 and the Spirit of a Rock By Andrew Mishlove on June 11, 2012

Two American Stories that Illustrate the Presumption of Innocence

A DUI defense lawyer must be a scientist and a legal scholar. The most important skill of any trial lawyer, however, is storytelling. Stories are what we use to give emotional depth and impact to dry legal concepts. Personal stories are often best but sometimes stories from history are effective.

I have often used the story of the Boston Massacre trial to illustrate the significance of the jury system and the importance of the presumption of innocence. It goes like this:

Boston was a place seething with unrest in the winter and spring of 1770. It was a city of 20,000 souls, and to keep it in line, King George had sent 4000 redcoat soldiers. As a way of leveraging their impact, the soldiers were not housed in barracks. Rather, the people of Boston were ordered to quarter them, to house them and to feed them. It was an onerous burden. The soldiers commandeered the houses of patriots, invading their privacy, eating their food and intimidating their parents and children.

On the frosty night of March 5, 1770, a young British lieutenant was standing outside of the custom house, a building that symbolized the cruel taxation imposed on the Colonies by the King. First one, then another, then a whole mob gathered, shouting at the sentry. It got nasty. A squad of troops was called in, commanded by Capt. Thomas Preston. Shots rang out and there on the cold Boston ground lay five Americans, their blood sating the ground of State Street. These were the first five Americans killed in the revolution that freed our country and inspired the world. They included a man named Crispus Attucks, a free African American. Many people know this story and have seen the famous engraving by Paul Revere depicting the Boston Massacre. What some do not know is eight months later, Thomas Preston was put on trial for murder.

Can you imagine the scene? I am in Boston in late 1770, a city under the boot of the redcoats and a redcoat captain is on trial for murdering my brethren! I am an American patriot and the massacre is a rallying cry for my cause, the greatest cause! I join the crowds outside the courthouse, calling for Preston's head. I know each and every juror, as does the whole town.

Now imagine the jurors. I am a juror in the case. Passions are high. I am under pressure from all sides. The British are in control, but my family, my friends, my employer, my customers -- they hate the redcoats and they expect me to support the cause. I do support the cause. The prosecutor says that Captain Preston ordered the shooting - that he gave the order to "Fire!" But many people were shouting and Preston was standing in front of his troops, in the line of fire. He could have been shot.

And a scruffy lawyer for Captain Preston keeps talking about something called the "presumption of innocence."

Now imagine that lawyer. I am a man who has struggled. I couldn't afford to turn down the case and I have been criticized and demonized for taking it. I am a patriot to the core. My cousin is a leader of the movement. I support the cause; but I know one thing: if our cause is to be just, we must protect the bedrock principles of justice, none more important than the presumption of innocence.

Ladies and gentleman of the jury, Thomas Preston was found not guilty. In the midst of the mob, that jury had the strength and principle to do the right thing. And now, more than 240 years later, we honor them for it. To a small degree, we owe our freedom to them, for they cherished and nurtured the presumption of innocence and passed it to us.

That lawyer later wrote that the Preston trial was one of the greatest services that he had done for his country. And he should know, because he later became the second President of the United States, John Adams.

Now, I'm no John Adams, but you, Ladies and Gentleman are a jury just like that jury in Boston 242 years ago. You can protect and nurture that presumption of innocence and pass it on - just as that brave jury passed it on to us.

Now, that is a famous story and is often used by lawyers. It is a great story. Its impact, of course, is completely a matter of the style and skill of the lawyer who presents it to the jury. That’s why lawyers are no more interchangeable than actors or musicians. It is an art.

Here is another story that I am developing. I share it with you knowing full well that it will be used, perhaps "stolen" if you will, by others. But, in a sense, I am using someone else's story anyway. Just remember, you read it here.

Ladies and gentleman of the jury, when I was a young man, I went to college in Northern Wisconsin. Many times I made the trip from my parents’ home in Milwaukee to my college in Rhinelander. I often traveled up Highway 55, through the Menomonee Reservation. Unlike many tribes, the Menomonee still live on their ancestral land. They have been there for 1,000 years. I love that unspoiled country and the Wolf River.

There is an historical marker along that highway. It is next to a rock - Spirit Rock. And there a Menomonee legend associated with that rock. For many decades the legend held no meaning for me, but I once again traveled that highway not so long ago and stopped at that rock. The sign tells the story of a young warrior who prayed that he be granted immortality. That he would live forever. So his prayer was granted: he was turned into a rock. That rock, out there on Highway 55, is said to hold his spirit. More than that, however, the rock holds the spirit of the entire Menomonee people. It is said that when the rock wears away, when it has turned to sand and dust, the Menomonee people will no longer exist.

So, as you drive pass that rock, you will see what you might suppose to be litter: cigarettes and such scattered on the ground. It is a little disconcerting that in this beautiful country, by a pristine wild river and virgin forest there would be a pile of cigarettes and tobacco wrappers on the road. We should know, though, that the Menomonee, who are as much as anything patriotic Americans, have placed their tobacco at that spot for many, many years - since before the highway was there. Now they are intelligent people. They understand that a rock is an inanimate object. It is not an idol; it is a symbol of those cherished values, those traits that make them a people. And there is wisdom, because they understand that even something as durable as Spirit Rock is not really permanent. There is no immortality. Spirit Rock can be worn away by the wind and water and ice - until there is nothing left. The Menomonee understand that it can be worn away one grain of sand, one speck of dust at a time. So, they cherish it, protect it. They understand that their culture, their values, the things that make them a people will not disappear overnight. Rather, if they disappear it will happen as slowly but as surely as the erosion of Spirit Rock. So, they protect the rock as a symbol of protecting their identity.

So, it is with all of us, Ladies and Gentleman of the jury. The things that we cherish as Americans, the things that make our country special and assure our place in history, are not permanent. We are not immortal. Our identity as a free people can wear away one grain of sand and open speck of dust at a time- if we allow it. So we must protect and cherish our sprit from that imperceptible erosion.

You have before you the presumption of innocence. It is like a rock that holds a spirit. If it ceases to exist, it will be because it was worn away, almost imperceptibly over time. It will be worn away as a rock is worn by the wind. Each little case in which it was not cherished and honored will wear away that rock. And when that rock is gone, we will cease to exist as a free people. This may be a little case, but as you decide it, you must protect that rock, do not let it wear away. Do not let one speck of dust or grain of sand fall from it.

Storytelling is what great lawyering is all about. These stories are far from perfect, and they are not terribly personal. Now the question is: can I tell them both to the same jury in the same closing argument?

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Andrew Mishlove and Lauren Stuckert

Mishlove and Stuckert, LLC Attorneys at Law

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