Facts are Stubborn Things

I will enlarge no more on the evidence, but submit it to you.—Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence: nor is the law less stable than the fact; if an assault was made to endanger their lives, the law is clear, they had a right to kill in their own defence; if it was not so severe as to endanger their lives, yet if they were assaulted at all, struck and abused by blows of any sort, by snow-balls, oyster-shells, cinders, clubs, or sticks of any kind; this was a provocation, for which the law reduces the offence of killing, down to manslaughter, in consideration of those passions in our nature, which cannot be eradicated. To your candour and justice I submit the prisoners and their cause. – John Adams’ Argument for the Defense: 3 – 4 December, 1770

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In late 1770, Founding Father John Adams agreed to take on the unenviable task of defending British Army Captain Preston and his soldiers who stood accused of killing five civilians during what came to be known as the Boston Massacre. Unenviable, of course, given the rising tide of rebellion in Boston at the time and the public’s general disdain for British soldiers. But Adams believed the facts were on his clients’ side and that they were entitled to a fair shake in the eyes of the law. So despite any of his wishes, inclinations, or dictates of passion to the contrary, Adams set off in search of the facts.

Some of what he found was recorded in the Anonymous Summary of Defense Evidence: 25 – 27 October 1770, sourced from John Adams’ own Legal Papers. These two dozen or so witness accounts that Adams gathered as part of his investigation led him to conclude that the facts were not as the indictment described, that the accused were not “moved and seduced by the Instigation of the devil and their own wicked Hearts, …[to] with force and arms feloniously, willfully and of their malice aforethought” commit murder. These contemporaneous accounts are priceless, both for their detail and for their demonstration of the timeless willingness of witnesses to share what they saw. Here are a few:

Matthew Murray stated: “I stood next to the Grenadier. Saw a stick or piece of Ice strike him upon his right side. On which he instantly fired and I went off. I heard no order given. I stood within two yards of the Captain.”

Daniel Cornwall: “Hearing the Bells ring I ran to King street. Saw a lad who told me a damnd Rascal of a Soldier had struck a Man with a Cutlass. I said where is the damnd villain gone. They gave three Cheers and went to Murrays Barracks. They were not there. Some the People had sticks. I went into a number round the Custom house. Some of them flinging Snow balls and Oyster Shells at the Centinel. Some were for killing him. Some for taking the Sentry Box and burning it. Some for throwing over board. … Capt. Preston was within 2 yards of me—before the Men—nearest to the right—facing the Street. I was looking at him. Did not hear any order. He faced me. I think I should have heard him. I directly heard a voice say Damn you why do you fire. Dont fire. I thought it was the Captains then.”

William Sawyer of Bolton a Country Town: “The people kept huzzaing. Damn ’em. Daring ’em to fire. Threw Snow balls. I think they hit ’em. As soon as the Snow balls were thrown and a club a Soldier fired.”

Jane Whitehouse: “The people called out fire, damn you why dont you fire, you cant kill us. I steppd to the Party. Heard a Gentleman ask the Capt. if he was going to order his men to fire. He said no Sir by no means, by no means. A Man—the Centinel—then pushed me back. I step’d back to the corner. He bid me go away for I should be killed. A Man came behind the Soldiers walkd backwards and forwards, encouraging them to fire. The Captain stood on the left about three yards. The man touched one of the Soldiers upon the back and said fire, by God I’ll stand by you. He was dressed in dark coloured Cloaths. I don’t remember he had a Surtout or any lace about him. He did not look like an Officer. The man fired directly on the word and clap on the Shoulder. I am positive the man was not the Captain. My attention was fixed on him, for the people said there’s the Officer damn him lets kill him. I am sure he gave no orders. I saw the People throw at them. I saw one man take a chunk of wood from under his Coat, throw at a Soldier and knocked him. He fell on his face.”

Ultimately, Captain Preston and his men were acquitted of murder. The facts of this case were stubborn indeed, and the dictates of the passions of a population increasingly bent on rebellion could not alter the fact that there was insufficient evidence to convict the accused of murder. Doubtful the same result if John Adams had not conducted his investigation and gathered up these facts, even when doing so was unpopular.

The stakes in workplace investigations are not nearly so high, but they can be unpopular, an unwelcome task to the assigned investigator, and downplayed to the point of being an unimportant waste of time. But a good workplace investigation, particularly in the area of employee relations, can be the difference between victory or defeat in litigation. Facts are stubborn—they are what they are whether we like them or not. And far better for your company to be in a position where it knows and understands those facts prior to litigation because of the quality of the workplace investigation it conducted.

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Harvey Legal Consulting can help you scope your investigation to ensure you’re searching for facts in all the right places. HLC will help you evaluate those facts against your policies and relevant laws or regulations to assist you in assessing risk and in determining what corrective action may be appropriate. Together we can ensure that your investigations are worthwhile because they are fair, thorough, and able to withstand scrutiny. And far better to know up front whether oyster shells were thrown, whether three cheers were given, and whether there’s a damnd Rascal in your midst.

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