special to The National Law Journal, September 15, 2003
Editor's Note: In 1985, a man was shot dead on a rural road in Lincoln County, Ore. A teenage boy and his mother were indicted for the crime. Gerry Spence took on both cases for the defense pro bono and faced off against a young prosecutor named Joshua Marquis in the juvenile's trial; the attorneys did not take a shine to each other. So contentious was the trial that they both ended up before the Oregon State Bar. A special report in the bar matter described their relationship as "reveal[ing] a degree of hostility and vituperation unique in our experience." The bar charges were dismissed, but the animosity remained. Now Spence has written a book about the Oregon trials. Marquis shares his recollections here.
Celebrity trial lawyer Gerry Spence has offered up the 13th in his series of allegedly non-fiction books about his trials and triumphs. The Smoking Gun (Scribner, 448 pages, $30) reaches back more than 15 years to recount Spence's part in two trials in Oregon-first, of 15-year-old Michael Jones Jr. (convicted and then overturned on appeal) and then of his mother, Sandy Jones (acquitted), on murder charges for the death of Wilfred Gerttula.
I am not an objective reader. In fact, I'm one of the book's main villains: the prosecutor in the first trial. I recall being mighty lonely, all by myself against Spence and a table full of co-counsel. Perhaps Spence never forgave me-the upstart kid born the year Spence started practicing law-who beat him in a murder trial.
The book's subtitle, "A true story," is, shall we say, charitable. Spence can spin a good tale-but courtroom drama is not the same as writing nonfiction. The main title refers to a damning photograph of Sandy Jones holding a smoking rifle. The picture was taken by the victim's widow moments before he died. By featuring this photo, Spence gives testament to the thinly veiled conceit among the defense bar that any decent lawyer can get an innocent client acquitted, but it takes a Superman to win acquittal for someone like Sandy Jones.
For more than 400 pages Spence portrays his clients as victims of a massive good-ol'-boy network that robbed them of their land rights. (The victim and the Jones family had been feuding over some rural property.) Though our memories clearly differ, Spence did succeed in reminding me of the trial, since very little of Spence's bewitching verbiage-now or back then-addressed the central question of the case: Who shot and killed Gerttula?
Indeed, many of the questions about Gerttula's death were never answered, in part because neither of Spence's clients ever testified or gave any public explanation of why they confronted Gerttula and his wife that summer day on a country road, armed with two rifles and a revolver. At the first trial there was evidence that the victim was armed only with a camera and a tape recorder. Spence coyly proposes what might have happened, musing about the dozens of red herrings with which he filled the courtroom so many years ago to divert attention away from his clients.
Spence describes my closing argument as long-winded (it took barely 60 minutes), while he neglects to mention that his own closing argument took an entire day. He describes a scene after the judge pronounces guilt on his teenage client in which I triumphantly slam shut my trial notebook, amble over to him with a dog-eared copy of his first book, Gunning for Justice, and plaintively seek an autograph. My fictional alter ego then launches into a speech in which I quote my favorite expression in Italian before swaggering off into the sunset. It might make a good movie scene, but it simply didn't happen. Alone, the scene makes little difference and in a roman à clef it might be forgiven. But in nonfiction (even the creative kind) the devil is in the details, so reader beware.
As in other books recounting his life and trials, Spence is the hero while the judges (with an exception here), prosecutors, investigators and journalists are biased-indeed conspiratorial. While Spence can't be faulted for not including everything, it is fair to weigh the value of what he left out. For example, Spence details the claims of ethical misconduct against me (arising out of a heated dispute with Spence over a polygraph test of the victim's widow), but conveniently neglects to mention the findings of a special panel of judges appointed by the Oregon State Bar that recommended further proceedings against Spence for conflict of interest, an ex parte communication with the court and extrajudicial statements. As Spence himself obliquely notes, "[a]ll charges made before the Oregon Bar against all the lawyers . . . in this case were finally dismissed."
Spence writes about his star expert witness, the state's former medical examiner, William Brady, depicting him as the paragon of medical trustworthiness. He doesn't mention Brady's creepy sideline back then: Brady had just been fired from his job in part because he had been selling body parts to finance a private office fund (a well-known scandal at the time). Spence also made much at trial and in the book of gunpowder tests that he claimed pointed away from his client and toward the widow as the shooter. But as Spence surely knows, such tests are now known to be so inconclusive that they are rarely used anymore and disfavored now in Oregon.
Throughout much of his career Spence has exhibited an uncanny ability to pick a judge, manipulate his way into control of the courtroom, then dominate the room and define the issues regardless of the charge. Consider the Weaver case, in which he put the FBI on trial for its role in the Ruby Ridge fiasco in 1992.
In the Gerttula case, Spence was in such control of the Portland courtroom that he referred to some court staffers by their first names, suggested when breaks would be appropriate and persuaded the judge to hold a hearing on a legal holiday when the courthouse was closed.
Indeed, in the second trial, the presiding judge, Harl Haas (one of the persons to whom the book is dedicated) was so enamored of Spence that he later became a visitor to Spence's Wyoming ranch. Haas once described the trial in a television interview as the high point of his career, saying Spence is "probably the finest trial lawyer alive in the world today."
The prosecutor in Sandy's trial, former state attorney general James Brown, has described Spence's trial practices as "strip-mining" a jurisdiction. Indeed, Spence rarely returns to the same courthouse (outside of his home state). The Oregonian reporter who covered the second trial felt strongly enough about what he had seen to write an opinion piece entitled "Jones' lawyer sought only victory, not truth." And Spence candidly admits in The Smoking Gun, "If I've learned one thing, it was that trials do not seek the truth, nor are they always intended to deliver justice . . . .Trials are wars."
Spence has been described as corny and crossing the line between law and showbiz, but no one can deny that he is never dull. His combination of flattery, bullying, legal maneuvering and remarkable storytelling abilities in the courtroom have yielded him fortune and fame.
As for that sage remark in Italian that he says I made in 1985, it actually popped up-less dramatically-in an exchange of e-mails a year or so ago. I told Spence that his courtroom style reminded me of the saying "Se non è vero, è ben trovato." (If it's not true, it's still a good story.) But a murder trial should be a search for truth and justice, not just an excuse for Spence to spin another yarn. Except for Spence's most devoted fans, this book will illuminate little.
