The Causeway
The monthly newsletter for the Franklin County Bar Association
"The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely" Robert Bolt, playwright
|
|
Bench Bar Conference - October 7th
|
|
The Franklin County Bar Association invites you to join us on Friday, October 7th at the picturesque Omni Bedford Springs Resort for the 17th Bench Bar Conference of the 39th Judicial District. The conference offers 6 continuing legal education credits covering many areas of law. Learn more at
Register by September 16th.
|
|
Thank you to our sponsors!
|
|
GOLD
Cognetti & Associates
Diloreto, Cosentino & Bolinger, P.C.
Kulla, Barkdoll & Stewart, P.C.
Law Office of Eric J. Weisbrod, P.C.
Law Office of Forest Myers
R. Thomas Murphy & Associates, P.C.
Salzmann Hughes
Steve Rice Law
Timothy Misner
|
|
SILVER
Black and Davison, P.C.
Crumling & Hoffmaster
Kaminski, Hawbaker & Salawage, P.C.
Keller, Keller, Beck & Ross, LLC
Nicklas & Snyder
Walker & Spang, LLC
BRONZE
Maureen Spang
|
|
Thank you to our business partner sponsors!
|
|
Auction Donations Requested
|
|
The Franklin County Bar Foundation will hold its first silent auction at the Bench Bar Conference on Friday, October 7, 2022 at the Omni Bedford Springs Resort.
We are seeking donations of auction items. Donations are due September 1st.
Auction item ideas:
- Basket of premium wines
- Jewelry
-
Art
- Gift Certificates for local goods/services
- Sports Memorabilia
- Vacation/Trip Accommodations
The funds raised from the Foundation's Silent Auction will go toward our capital campaign.
|
|
Attorneys in Franklin County met on May 23, 1899 to formally form the Franklin County Bar Association. Our 125th anniversary is 2024. The Foundation has set a goal of reaching $125,000 raised by 2024 as our capital campaign.
You will be hearing more about the capital campaign in the months to come. Thank you for your continued support of the Franklin County Bar Association and our Foundation.
The Franklin County Bar Foundation is the charitable arm of the Franklin County Bar Association. The FCB Foundation is dedicated to promoting access to justice for all people in the community. The goal of our capital campaign is to enable the Foundation to have a greater impact countywide in promoting access to justice in Franklin County.
|
|
Attorney Openings at Franklin County Legal Services
|
|
Franklin County Legal Services has two openings for attorneys. Please feel free to share this with anyone who would be interested in either of these positions.
|
|
|
August 24 @ 9:00 am - 12:15 pm
|
|
|
|
August 31 @ 9:00 am - 12:20 pm
|
|
|
|
Press Releases, Memos and Important Notices
|
|
The Disciplinary Board
of the Supreme Court of PA
|
|
|
|
Read the latest news and statistics from the Supreme Court of PA.
|
|
Guardianship Tracking System Online Workshops offered by AOPC - April, May & June
|
|
Please see below for a brochure regarding the next round of GTS Guardian Workshops for court-appointed guardians. This series offers sessions in July, August, and September.
Guardians who participated in any of the prior workshop/webinar sessions will not need to attend since the material being presented is essentially the same. This series is again being offered exclusively as ‘Online Workshops’. The online webinars have been very successful and convenient for the guardians since various dates and times are being offered to accommodate their schedules, and also travel is not required.
The guardians will need to register online so that the trainers can appropriately plan and staff the sessions based on the number expected to participate.
|
|
Franklin County Information & Referral Community News & Resources
|
|
|
|
PIATT TAPPED BY FEDERAL APPEALS COURT
U.S. Court of Appeals for the 9th Circuit asks Attorney Jason Piatt to handle Federal Appeal in Civil Rights Case
Sacramento, California: Attorney Jason Piatt was recently asked to handle all aspects of an appeal from the U.S. District Court for the District of Montana to the U.S. Court of Appeals for the 9th Circuit. Attorney Piatt briefed and subsequently argued the matter before a panel of three judges of the 9th Circuit at the Pioneer Courthouse in Portland Oregon. The U.S. Court of Appeals approached Piatt because of his federal appellate experience and his familiarity with civil rights claims against state and municipal government. “It was an honor to be asked to handle such an important case,” said Jason Piatt. “This case involved complex issues of First Amendment rights and the right to procedural due process. It stands for the proposition that every citizen deserves the protections of the Constitution of the United States. If the weakest and most vulnerable of us isn’t protected, none of us are safe.” The case involved a prisoner who alleged he was retaliated against by a nurse for reporting mistreatment. During the subsequent trial, Piatt argued, the prisoner who was forced to proceed without counsel despite seven requests for assistance to the Court, was errantly instructed on the rules of Court and denied appropriate remedies after the attorney for the for-profit prison and its nurse made improper statements during closing arguments in violation of federal caselaw.
|
|
“The selection of Jason Piatt to handle a case such as this comes as no surprise,” said Wesley Oliver, NBC News legal analyst and Professor of Law. “Mr. Piatt has a great legal mind and is quite thorough in examining every aspect of an issue - a key skill for any appellate lawyer.”
|
|
About the U.S. Court of Appeals for the Ninth Circuit:
The United States Court of Appeals for the Ninth Circuit is a federal appellate court with appellate jurisdiction. It hears appeals from all of the U.S. District Courts within its jurisdiction and its rulings may be appealed to the Supreme Court of the United States. This includes the district courts in the District of Alaska, Arizona, California (Central, Eastern, Northern, and Southern Districts), Hawaii, Idaho, Montana, Nevada, Oregon, and Washington (Eastern and Western). Additionally, the Court has appellate jurisdiction over the District Court for the District of Guam and Northern Mariana Islands.
The 9th Circuit’s rulings may only be appealed to the Supreme Court of the United States.
|
|
About Piatt Law PLLC and Jason E. Piatt, Esq.:
Piatt Law is a law firm handling litigation in both the state and federal courts within Pennsylvania, Maryland, and the District of Columbia with headquarters in Waynesboro, Pennsylvania. Attorney Jason Piatt is licensed in all three jurisdictions. Prior to founding Piatt Law, Jason worked for an elite Washington D.C. law firm where he handled a number of complex federal and state court litigation matters around the country. He also participated in litigation internationally because of his in-depth technical and commercial knowledge and experience. Prior to that, he worked for the Allegheny County District Attorney’s Office in the Homicide, Narcotics, and Violent Crimes / Firearms Sections. He also worked for the Pennsylvania Office of Attorney General in their Civil Litigation Section. Jason also worked for Judge Thomas M. Hardiman of the U.S. Court of Appeals for the Third Circuit, Chief Judge Joy Flowers Conti of the U.S. District Court for the Western District of Pennsylvania, and Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas. His legal work earned Letters of Commendation from the Pennsylvania State Police, Pennsylvania Office of Attorney General, and the Governor of Pennsylvania.
|
|
Jason earned a Master of Laws in Trial Advocacy (LL.M.) with Honors from Temple University Beasley School of Law. He received his Juris Doctor magna cum laude from Duquesne University School of Law where he was a Dean’s Scholar, a McGinley Public Service Fellow, and was presented with the first-ever Distinguished Pro Bono certificate which honors students with over 1000 hours of pro bono service. His 1300+ hours of volunteer service set the record for pro bono hours by a law student in the school’s one-hundred-year history. He received his Bachelor of Science in Electrical Engineering with minors in Mathematics and Physics as well as his Master of Science in Electrical Engineering from Bucknell University. Jason also received a Master of Business Administration from Mount Saint Mary’s University. He earned an Executive Certificate in Technology, Operations, and Value Chain Management from the Sloan School at The Massachusetts Institute of Technology (MIT).
|
|
Do you have a updated FCBA member list?
|
|
The complete member list is updated quarterly and available to you and your staff two ways.
You may download and print a PDF from the members' section of our website (log in required). Or you may email Amelia at director@franklinbar.org to receive a PDF or excel document anytime.
|
|
Coffee Corner
"Coffee Corner" is a periodic column in The Causeway by Bar members Annie Gómez Shockey, Brandon Copeland, and Victoria Beard.
|
|
|
By Brandon Copeland
The Incident on King Street
|
|
The date is March 5, 1770, a cold and snow-covered evening in Boston. Tensions between British soldiers meant to keep order and colonial inhabitants have long simmered and threatened to explode. That evening, a young wigmaker’s apprentice accuses a British officer of failing to pay a debt owed to his master (the officer had in fact paid the day before). A heated argument ensues, and the apprentice repeatedly pokes the officer in the chest with his finger. A British sentry stationed near by intervenes and imprudently strikes the apprentice with the butt of his musket. More townsfolk join the fray and soon the lone sentry is surrounded by fifty-some townspeople who threaten, taunt, and try to provoke him into firing his musket at them. Townsfolk break into a nearby church and begin ringing its bells, the usual signal for a fire. This dramatically swells the angry crowd as people come to investigate. The soldier sends for help and soon seven British soldiers and their captain, Thomas Preston, rush to the scene. The men are ordered to fix bayonets and double shot their muskets (loading two of the large calibers balls the weapons fire to increase the damage it could do at close range). They know they will be badly outnumbered, and mob violence had been a problem in the colony in response to unpopular British governmental actions. The soldiers have to push their way through the crowd, which eventually grows to several hundred people, to get to the sentry.
|
|
Captain Preston is warned that, if his men open fire, they “must die” and is repeatedly threatened by the crowd. He stands between his men and the crowd and orders them to disburse, trying to defuse the situation. The crowd, some of whom are armed with swords and clubs, have been throwing whatever is handy at the soldiers, striking several of them. These missiles included snowballs, shards of ice, stones, and clubs. This tense standoff goes on for some time with the crowd pushing in and throwing things at the soldiers. Members of the crowd are close enough to touch the soldiers and Captain Preston. They repeatedly taunt the soldiers and encourage them to fire on the crowd, although whether this is from a genuine desire to create an incident or out of a certainty that the soldiers would not is unclear. A Private Montgomery is struck by a thrown club and falls to the ground, dropping his musket. As he is getting up, someone from close behind the soldiers yells “damn you fire!” It has been long debated who yelled these fateful words, but Montgomery seems to have believed he had been ordered to fire and levels his musket at one of the leaders of the crowd and fires. Two bullets, likely from Montgomery’s musket, strike Crispus Attucks, killing him. In the next moments, the other soldiers also fire in a disordered and piecemeal manner. Captain Preston immediately orders his men to cease firing but all eight of the soldiers have already discharged their muskets. Elven men in the crowd have been struck and five are either dead or mortally wounded. The Brown Bess musket, carried by the soldiers, is capable of inflicting frightful injury at such close range.
|
|
The crowd breaks apart and runs for safety in the aftermath of the shooting but return soon after, larger than ever. British reinforcements arrive and take up defensive positions in front of the Capitol building. The soldiers are still badly outnumbered but now have a regiment of troops in position. The acting governor, Thomas Hutchinson, arrived to try to contain the situation. However, the crowd was so large and angry by this point that he was forced to retreat inside that Capitol and could only address the crowd from an upper floor balcony. It seemed for some time that violence would again break out, but Hutchinson was able to head this off, by promising a fair inquiry into the shooting. This promise preserved the peace for the time being and the British soldiers were removed from Boston proper to lessen tensions. On March 27, Preston and all eight of his men were charged with murder. They faced the death penalty if convicted.
|
|
The two trials that would follow would be some of the most important in the history in the American Colonies. Both patriot and loyalist factions in the colonies were quick to recognize the importance of what the patriot leader Samuel Adams christened “the Boston Massacre.” Loyalists more commonly referred to it as the Incident on King Street. The propaganda value of the incident led to an extensive campaign where both sides sought to make sure their narrative became the dominate one. Considering that witness accounts varied widely and were often directly conflicting, it was easy to make a case for either side. Each camp could find evidence that supported their view and condemned their opponents (as is often the case, little care was given to the truth, if that was possible to glean). Patriot witness downplayed the provocations of the crowd and argued that the British soldiers had coldly fired into a peaceful crowd. They argued that this was further British tyranny designed to break Patriot spirits. Loyalist accounts emphasized the violent mob that had attacked British soldiers doing their duty. They sought to emphasize the fear of the soldier at the mercy of mob justice which had become a prevalent feature of colonial politics. In their narrative, the soldiers were defending their lives and completely justified. Public mood in Boston was decidedly against the soldiers to the point that mob violence was a legitimate fear, and Captain Preston despaired of ever having a fair trial.
|
|
Neither Boston nor the Colony of Massachusetts employed professional prosecutors or public defenders, so private consul was needed by all involved. This proved difficult for Captain Preston and his men. As many unpopular defendants have found throughout history, no one wanted to defend them. The Loyalist Bar was afraid of reprisals if one of their number represented the accused. Finding a lawyer among those with patriot leanings was self-evidently difficult and for sometime none could be convinced to take the case. A loyalist attorney approached the well-respected litigator John Adams, who was known for being both pro-patriot in his sympathies and also fair minded. Adams was understandably reluctant to take the case. He feared his practice would suffer (it did) and that his reputation would be damaged (it was not). Adams, who believed strongly that every man deserved representation and a fair trial, eventually agreed to take the case. Samuel Quincy and Robert Treat Paine would bring the prosecution. In an odd twist Quincy was an outspoken loyalist who found himself trying to convict the King’s soldiers for what most loyalists believed was self-defense (his co-counsel Paine was a committed Patriot). It speaks well of the professionalism of all of the attorneys involved that they were able to set aside their personal feelings to vigorously advocate for their clients.
|
|
The trials would be delayed several months in an effort to allow tempers to cool (this was unpopular and not particularly effective). The government in Boston had a vested interest in ensuring fair trails. They were concerned about possible British retaliation as well as public opinion if the trail did not appear fair. While Massachusetts was a hotbed of patriot sympathies, it still held many loyalists, as well as significant numbers of people who were more or less neutral. Many patriots also felt that the case for colonial self-rule would be harmed if the soldiers were not given due process, even if most believed the outcome was certain. Fears that justice might not be served were not ideal. The Sons of Liberty had threatened to lynch the soldiers prior to the trial, and they were not the only ones expressing similar ideas. Four judges were enlisted to hear the cases: Benjamin Lynde, John Cushing, Peter Oliver, and Henry Trowbridge.
|
|
Adams and his team had fought successfully to separate Captain Preston’s trial from that of the enlisted soldiers, believing that it would benefit his clients. From the beginning there would be several unusual components of the two trials. Adams was able to empanel both juries without any Bostonians making it onto the jury. Given the mood of Boston this was no small achievement. He also successfully convinced the Court to sequester both juries, which was nearly unheard of at the time. This even more remarkable because, unlike most trails that rarely lasted more than a few hours, both cases would last more than six days. Some eighty witnesses would be called between the two cases, again unusual for the time.
|
|
On October 24, 1770, the judges entered the court room wearing blood red robes, an English Common Law tradition, indicating that the death penalty was being sought against Captain Preston. The courtroom was packed and humming with anticipation. The case against Preston was more straight forward then those against his soldiers. No one suggested that Preston had personally killed anyone, so the trial revolved around whether he had given the order to fire. If he had given the fateful order his only defense could be self-defense. It would have been illegal for Preston to order his men to fire on civilians without orders from a magistrate, absent self-defense. Preston insisted, in his report written after the incident, that he had not given the order and had, in fact, done everything in his power to restrain his men once the firing had started. Considering that both sides, in a rare point of agreement, had Captain Preston standing directly in the line of fire, his denial was credible. The prosecution offered several witnessed who swore that Preston had given the order to fire. Adams was able to present more witnesses that said he had not. Preston would not take the stand in his own defense. Adams was able to elicit some damaging responses from prosecution witnesses on cross-examination, including one man who acknowledged he was armed with a sword and hoped to kill the soldiers. He painted the crowd as a violent mob out for blood that had threatened Captain Preston and his men. The prosecution focused on the constant resentment the soldiers felt after having been abused and mocked since coming to the colony two years before. In other words, they were angry and used this opportunity to get revenge on their tormentors. It is reasonable to wonder if pointing out how often British soldiers were harassed and ill-treated may have backfired. The colonial jury found Captain Preston not guilty at the conclusion of the six-day trial.
|
|
The acquittal of Captain Preston was in some ways a double-edged sword for Adams and his other eight clients. Since it had been decided that Captain Preston did not give the fateful order, the jury would be left to wonder who did and why the soldiers had fired. The soldiers’ trials would begin on November 27, 1770, before the same judges. For the most part the arguments and witnesses were the same, but with a few important differences. The Prosecution only needed to prove that the soldiers fired with malice and the intent to kill in order to secure murder convictions. Their job was made easier by testimony that the second soldier to fire, Matthew Kilroy, had previously said, “he would never miss an opportunity, if he had one, to fire on the inhabitants, and that he wanted to have an opportunity ever since he landed.” The prosecution was also able to present witnesses who convincingly showed that Kilroy had killed Samuel Gray and that Montgomery had killed Crispus Attucks. In the confusion that followed the first two shots no one seemed clear on who had shot the other nine members of the crowd. The Prosecution tried to portray the soldiers as angry brutes out for revenge, while downplaying the actions of the crowd.
|
|
The more decisive new evidence, offered by Adams, came from the mouth of Patrick Carr, which was quite a feat considering he had been dead for more than 8 months. Anyone who has ever had to puzzle over the Dying Declarations exception to hearsay can thank John Adams. Although Dying Declarations existed in English Common Law as early as the thirteenth century, they had never been accepted by a colonial court. Carr had been shot through the body by one of the soldiers as he was crossing the street at the back of the crowd. Such wounds were nearly universally fatal in this period, due to the inability to repair the internal damage and infection that would almost inevitably follow. But Carr lingered on for five days after he was shot. During that time, he gave detailed descriptions of the crowd and the incident to his physician, Dr. John Jefferies. Jeffries was called by Adams to testify about these statements. Carr described the crowd as threatening and attacking the soldiers and he routinely stated that he believed the soldiers had acted in self-defense. Much of my description of the night’s events is taken from his account. The doctor’s testimony concluded with the following exchange.
|
|
Q. Was you Patrick Carr's surgeon?
A. I was...
Q. Was he [Carr] apprehensive of his danger?
A. He told me...he was a native of Ireland, that he had frequently seen mobs, and soldiers called upon to quell them...he had seen soldiers often fire on the people in Ireland, but had never seen them bear half so much before they fired in his life...
Q. When had you the last conversation with him?
A. About four o'clock in the afternoon, preceding the night on which he died, and he then particularly said, he forgave the man whoever he was that shot him, he was satisfied he had no malice, but fired to defend himself.
|
|
|
The four Judges accepted this testimony with the following instruction to the jury “this Carr was not upon oath, it is true, but you will determine whether a man just stepping into eternity is not to be believed, especially in favor of a set of men by whom he had lost his life.” If any man had reason to condemn the soldiers it should have been the man who died a lingering and painful death because of their actions. Carr’s compelling testimony made it hard to refute the argument that at the very least the soldiers were provoked to fire.
|
|
Adams used his closing argument to paint a vivid picture of a mob of the lowest sort out for violence. The jury were left to wonder what they would do in the soldiers’ place if faced with a similar crowd. Following a week of contradicting testimony, the case went to the jury. After two and a half hours of deliberation the jury returned a verdict that would stun many in Boston. Kilroy and Montgomery, the only two soldiers the evidence could clearly show killed anyone intentionally, were found guilty of the lesser charge of manslaughter. Both had aimed their muskets at individual members of the crowd and fired, which seems to have made the difference for the jury. The other six soldiers were found not guilty. The prosecution had failed to show they had killed anyone specifically.
|
|
The manslaughter convictions showed that the jury accepted that Montgomery and Kilroy were provoked to kill but not enough to excuse their conduct entirely. They were not out of the woods yet though. Manslaughter still could carry a death sentence. Again, Adams proved his worth. There were many odd medieval remnants in the English Common Law that a seasoned litigator might seize upon to their client’s benefit. The one Adams used, the benefit of the clergy, seems farcical but I swear it is real. Medieval clergypersons were exempt from death sentences (and many other harsh secular punishments) in secular courts. This was still the case at the time of the trial. Given there were many levels of clergy, not all of which are readily apparent, a test was devised to prove the condemned were a member of the clergy. If the guilty person could read the first verse of psalm 51, “Have mercy upon me, O God, according to thy loving kindness: according unto the multitude of thy tender mercies blot out my transgressions” they would be considered a member of the clergy for the purposes of sentencing. In a period where almost no one other than the clergy was literate, this may have been a reasonable test. It was far less so in 1770. The actual requirement to read the passage had been removed in 1705 which was lucky for the illiterate Kilroy. A judge could insist on the reading of the Psalm if they felt the privilege was being abused. However, this was rarely done, and the legal fiction was used to avoid mandatory death sentences or harsh punishments for first time offenders. It is analogous to the use of probation or suspended sentences by modern courts. Since both men were technically considered members of the clergy due to their plea, they could not be executed, but they would not escape punishment entirely. Instead, they were both branded with an M on their thumb, which would mark them out as manslaughterers. If they were ever before a court in future, their brands would ensure harsher punishment; they could not plead the benefit of clergy a second time because of the brands. And to think, people find the history and the law boring…
|
|
The legacy of the “Boston Massacre” in popular understanding cares little about the trial and acquittal of most of the accused. The focus is on the shooting of the colonists. Crispus Attucks is often cited as the first casualty of the struggle for colonial independence. The killings served as a powerful rallying cry for the patriot cause and helped stoke the resentments that would lead to war and eventual independence. The actions of the crowd before the fatal shots were fired faded into the background or were reimagined entirely to serve an important propaganda purpose. The acquittals did nothing to change the already ingrained narrative of the massacre. Patriots often held reenactments of the massacre and paraded men who were injured to great effect. Adams’ law practice would suffer greatly for representing the soldiers, but his political profile rose dramatically. He was elected to public office for the first time several months later. He would go on to play an important role in the Revolution, become a founding father, and the second president of the United States. Adams never regretted defending the soldiers and would write in his diary:
|
|
“I have reason to remember that fatal Night. The Part I took in Defense of Captn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly, and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgement of Death against those Soldiers would have been as foul a Stain upon this Country as the Execution of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”
|
|
|
Captain Preston would return to England prior to the Revolution and saw no more service in the Colonies. All eight of the soldiers returned to England, and obscurity, following the trial. As I researched this article, I found myself reflecting on the version of events I was taught in school about the Boston Massacre. I learned, as I suspect most Americans did, the version of events straight out of Samuel Adams and Paul Revere’s patriot propaganda. This was the more popular view in the aftermath of the event and that memory has carried through the ages. It makes sense that it is still the popular understanding of the event since the Patriot cause was ultimately victorious and therefore the more convenient one. This does not change the fact that like so many popular understandings of history, it rests upon extremely shaky ground. The balance of the evidence suggests that these accounts are at best partisan and worst out right fabrications. When looking at history it is always important to critically analyze your sources and consider their biases. If Patrick Carr thought the British were justified in firing into the crowd, and causing his agonizing death, who are we to argue?
|
|
Franklin County Bar Association
100 Lincoln Way East, Suite E, Chambersburg, PA 17201
717-267-2032
|
|
|
|
|
|
|