Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 12-1-2011 What One Lawyer Can Do for Society: Lessons from the Remarkable Career of William P. Homans, Jr. Mark S. Brodin Boston College Law School, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/lsfp Part of the Biography Commons, Civil Rights and Discrimination Commons, Constitutional Law Commons, Criminal Law Commons, Human Rights Law Commons, Law and Society Commons, Legal History, Theory and Process Commons, and the Legal Profession Commons Recommended Citation Mark S. Brodin. "What One Lawyer Can Do for Society: Lessons from the Remarkable Career of William P. Homans, Jr.." New England Law Review 46, no.1 (2011): 37-63. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. BRODIN 11/2/2011 4:04 PM What One Lawyer Can Do for Society: Lessons from the Remarkable Career of William P. Homans Jr. MARK BRODIN* ABSTRACT William P. Homans Jr. was an iconic civil liberties and criminal defense lawyer who mentored generations of younger lawyers that followed in his path. He appeared in cases that defined his times, from representing targets of the McCarthy-era inquisitions of the 1950s, to defending publishers of books like Tropic of Cancer when the authorities sought to suppress them, to serving on the defense team in the conspiracy trial of internationally-renowned pediatrician Benjamin Spock and four other leaders of the anti-Vietnam-War movement, to defending a doctor charged with manslaughter arising from an abortion he performed soon after Roe v. Wade legalized such procedures. In each case, Homans advanced the larger causes as well as his clients' interests. William Homans also defended countless persons whose names are not widely known and who paid him little or nothing because, like John Adams before him, he believed profoundly that each accused is entitled to the best defense possible. Acutely aware of the many imperfections and biases in the criminal justice system, he was a passionate opponent of the death penalty, and in a series of landmark cases, he persuaded the Supreme Judicial Court to abolish the penalty in Massachusetts. Homans's contributions to the law remain a model for the legal profession, and many valuable lessons may be drawn from his fifty-year career at the Bar. * Professor and Lee Distinguished Scholar, Boston College Law School. Author of WILLIAM P. HOMANS JR.: A LIFE IN COURT (2010). 37 BRODIN - FINAL (DO NOT DELETE) 11/2/2011 4:04 PM 38 New England Law Review v. 46 | 37 Few are willing to brave the disapproval of their fellows, the censure of their colleagues, the wrath of their society. Moral courage is a rarer commodity than bravery in battle or great intelligence. Yet it is the one essential vital quality for those who seek to change a world that yields most painfully to change.1 s a fellow student of Bill Homans at Harvard College famously advised: ‚[A]sk not what your country can do for you—ask A what you can do for your country.‛2 In the same inaugural address, John F. Kennedy observed: The torch had been passed to a new generation of Americans— born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage—and unwilling to witness or permit the slow undoing of those human rights to which this Nation has always been committed, and to which we are committed today at home and around the world.3 The new President could well have been describing one particular member of that generation, William P. Homans Jr., who spent his fifty-year career following JFK’s admonition to give more to society than one takes. Homans emerged from two of Boston’s most venerable family lines, which together had produced generations of celebrated doctors, corporate lawyers, Harvard academics, and politicians since the mid-1750s.4 Raised on a forty-acre estate on Homans Lane in lush Canton, he followed his forebears into Harvard College, its exclusive Phoenix final club, the Hasty Pudding Institute of 1770, and all the other usual venues of Brahmin privilege in America’s City on a Hill.5 Yet waiving his birthright, Homans chose a life of great self-sacrifice, devoting himself to the representation of society’s cast-offs and the 1 JESSICA MITFORD, THE TRIAL OF DR. SPOCK, THE REV. WILLIAM SLOANE COFFIN, JR., MICHAEL FERBER, MITCHELL GOODMAN, AND MARCUS RASKIN 182 (1969) (closing argument by William P. Homans, Jr. on behalf of Michael Ferber in United States v. Spock, 416 F.2d 165 (1st Cir. 1969)). 2 John F. Kennedy, President, Inaugural Address (Jan. 20, 1961), in JOINT CONG. COMM. ON INAUGURAL CEREMONIES, INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES FROM GEORGE WASHINGTON 1789 TO GEORGE BUSH 1989, S. DOC. NO. 101-10, at 308 (1st Sess. 1989). 3 Id. at 306. 4 See Mark S. BRODIN, WILLIAM P. HOMANS JR.: A LIFE IN COURT ix, 1-6 (2010). 5 Id. at 1, 7-8. BRODIN - FINAL (DO NOT DELETE) 11/2/2011 4:04 PM 2011 Lessons from the Remarkable Career of William P. Homans Jr. 39 advocacy of causes that often put him on the wrong side of public opinion.6 Though heralded as one of the best criminal defense and civil liberties lawyers of his time, and among the most important figures in the Boston legal community,7 Homans lost many of his cases, particularly at the trial level.8 The lawyer who ventures on such a path, who follows Oliver Wendell Holmes’s instruction to ‚immerse [oneself] in the agonies of the times,‛9 has to be prepared to suffer painful defeats and reverses. After all, Clarence Darrow, America’s archetypal ‚people’s lawyer‛— who left a lucrative practice as a railroad lawyer to represent Socialist leader Eugene V. Debs and his American Railway Union in the momentous Pullman Strike of 189410—lost his first big case and had to watch his obviously deranged client go to the gallows.11 Darrow also lost his most famous case, when Tennessee high-school-biology-teacher John Scopes was convicted for teaching evolution in the historic 1925 ‚monkey trial.‛12 The teaching of evolution was not protected by the Constitution until decades later, in 1968, with Epperson v. Arkansas.13 Darrow did not live to see any notable success in his life-long battle against the death penalty, even though he succeeded in putting the issue on the national agenda with his impassioned plea that saved ‚thrill murderers‛ Nathan Leopold and Richard Loeb from execution for the random killing of a neighborhood boy.14 The late historian Howard Zinn paid Homans the highest of compliments when he described him as a ‚Clarence Darrow-like defender of poor and black people.‛15 Especially before Gideon v. Wainwright,16 many 6 See id. at ix, xii. 7 See Alan M. Dershowitz, Biography Tells Balanced Story of Complex Man, Great Lawyer, MASS. LAW. WKLY., Apr. 12, 2010, at 13. 8 See BRODIN, supra note 4, at 70-71. 9 Arthur Kinoy, The Role of the People’s Lawyer in the 1990s, 2 TEMP. POL. & CIV. RTS. L. REV. 209, 226 (1992) (quoting Oliver Wendell Holmes’s advice to young lawyers and professionals). 10 See Gerald F. Uelmen, Who is the Lawyer of the Century?, 33 LOY. L.A. L. REV. 613, 632 (2000). 11 See JOHN A. FARRELL, CLARENCE DARROW: ATTORNEY FOR THE DAMNED 62 (2011). A delusional Patrick Prendergast shot and killed the mayor of Chicago in the mayor’s home, telling police the victim had reneged on a promise to appoint him as counsel. Prendergast was a twenty-five-year-old newspaper deliveryman, who even the state psychiatrists proclaimed was insane. The jury took only an hour to come forward with a guilty verdict. Id. at 55-56. 12 See id. at 364-65, 397. 13 393 U.S. 97, 107, 109 (1968) (holding that an Arkansas law preventing the teaching of evolution in the classroom violated the First and Fourteenth Amendments). 14 FARRELL, supra note 11, at 348-56. 15 HOWARD ZINN, JUSTICE IN EVERYDAY LIFE: THE WAY IT REALLY WORKS 106 (Howard Zinn BRODIN - FINAL (DO NOT DELETE) 11/2/2011 4:04 PM 40 New England Law Review v. 46 | 37 of these people would have gone unrepresented or poorly represented. For lawyers like Darrow and Homans, gratification comes not from frequent victories but from the struggle itself and constantly challenging the justice system to truly produce just results. **** An effective criminal defense lawyer has to, above all else, relish the good fight against long odds. When Homans was a seventeen-year-old college freshman, he visited Germany and stayed for six weeks with a family that had a son in a Hitler youth group.17 The year was 1938; the Nuremberg laws had already stripped Jews of their citizenship, subjecting them to brutal abuse and humiliation, and worse was soon to come.18 The young Homans was forever changed by what he saw that summer, and his lifelong commitment to defense of the downtrodden and powerless was forged. When he graduated from Harvard College in June 1941, the United States was still neutral, standing aside (except for the modest Lend-Lease support that President Franklin D.