The Zealous Rufus Choate

[Guest Blogger Michael S. Ariens's posts on his new book, The Lawyer's Conscience, continues.  DRE]

Rufus Choate (NYPL)

Following the death of Boston lawyer Rufus Choate in 1859, his political nemesis Wendell Phillips remarked, "This is Choate, who made it safe to murder, and of whose health thieves inquired before they began to steal." An early and admiring biographer offered some confirmation of Phillips' statement. In a civil case in which two ship captains were accused of conspiring to scuttle one of the ships to steal its contents, Choate, representing the accused conspirator Captain Maxey, cross-examined the other captain, one Pitman. Pitman claimed the conspiracy was Maxey's idea. When Choate asked Pitman, "What did he say? Tell us how and what he spoke to you?"Pitman replied, "Why he told us there was a man in Boston named Choate and he'd get us off if they caught us with the money in our boots." (A slightly less charitable version was recorded in the diary of Richard Henry Dana, Jr., opposing counsel in the case.)

As a young lawyer Choate practiced in Essex County, north of Boston. Residents wondered how none of Choate's criminally accused clients was ever convicted. Later in his career, newspaper publisher Samuel Bowles concluded Choate's "disregard of truth and justice in the undertaking and trial of causes" was "notorious." One obituary concluded "the lightnings of [Choate's] genius were brandished with little regard to consequences," including whether he had "struck down the fair fabrics of public virtue and public integrity."

Possibly his most notorious case was his defense of accused murderer Albert J. Tirrell. Tirrell was married by living in a brothel with his mistress, Maria Bickford. A fire was detected soon after someone was heard leaving the room in which Tirrell and Bickford were staying. When the fire was snuffed, residents found Bickford dead, her throat cut ear to ear. Tirrell was eventually captured and stood trial. Choate's two inconsistent defenses were (1) Bickford slashed her own throat, for "suicide is the natural death of her class," or (2) Tirrell had killed Bickford while sleepwalking. At the conclusion of his widely publicized trial, Tirrell was acquitted of murder. The following year he was acquitted of arson.

One of Choate's many biographers linked Choate's defense of Tirrell to the charge that "Mr. Choate was somewhat unscrupulous in his defense of criminals. But there was never a greater misapprehension." Choate was simply doing what all lawyers were supposed to do: zealously represent one's clients, even and especially unpopular clients.      

Theophilus Parsons Jr., a contemporary of Choate's and a professor at the Harvard Law School, spoke to students about Choate's work. He distinguished Choate's "forensic" mind from Daniel Webster's "judicial" mind. Those possessing a forensic mind "see only what offers itself to them as their own side"; the latter answer such questions "in their own minds." The forensic mind was capable of making a bad case a winnable one, a talent lacking in a judicial mind. Choate and other like-minded persons possessed a "dangerous power." But Choate, said Parsons, was the rare person who could resist the "enormous temptation" to distort events, though he offered no examples.

Parsons then declared there existed two distinct theories of the lawyer's duty when representing clients. The first was that "an honest lawyer will remember that he should be devoted to the service of truth and of justice." The second argued "it is always the duty of a lawyer to be faithful and true to the client who places his interests, perhaps his life, in his hands." The good news was that these theories were "extremes." In between, there "lies the difficult and narrow path which the lawyer should pursue." Success lay in neither ignoring the morality of the cause nor "sav[ing] his conscience by the sacrifice of his judgment."

Parsons then offered some examples of when the lawyer successfully trod this narrow path. Assume two very credible witnesses observed the defendant commit murder, and told others what they saw. The witnesses then died before trial. It was the duty of the defendant's lawyer to object to the hearsay testimony of those who heard the deceased witnesses accuse the defendant, even when that meant the defendant went free. Zealous representation by a lawyer of the criminally accused client was essential to the rule of law. 

The difficulty with Parson's hypothetical example is not that it presents a hard case, but an easy one. It would have been more useful for Parsons to look particularly at examples taken from Choate's cases. Was Choate merely acting as a zealous advocate in claiming Maria Bickford slit her own throat?     

Benjamin Curtis, the Boston lawyer who famously resigned from the Supreme Court after it issued its decision in Dred Scott v. Sandford (1857), also defended Choate's zeal in an 1859 speech to the Massachusetts Supreme Judicial Court. He claimed Choate was no "brawler for hire." Further, he never showed "any want of loyalty to truth, or any deference to wrong." Instead, his "zealous discharge of this duty" was consistent with "the most devoted duty to truth and justice." Others echoed Curtis' sentiments. It seemed, however, that Curtis was speaking less of Choate than of a revision of the lawyer's role, one Curtis had taken. Curtis concluded that, since truth and justice were found "on both sides," it was up to the tribunal to determine which side had the better argument. Curtis used the example of Choate to relieve the lawyer of any responsibility for the moral nature of the cause. Instead, the lawyer zealously served the autonomous interests of clients, in the manner of Choate.