Wrestling With The Devil
I sat up most of last night wrestling with the ghost of Gerry Spence. As usual, I figure he got the better of me. It bugs me.
"You know why you lost that case, Norm?" He approaches me warily, waiting for the trap to spring. My mind is a weapon. It often fires before I can stop it.
I sit silently.
"You lost it because you are mean," he said.
The charge was murder. My client was alleged to have kidnapped, raped and murdered a a fifteen-year-old girl in 1996. She's never been seen since. Jailhouse snitches say my client boasted of disposing of her body such that she'd never be found. "No body, no murder," he is reported to have said. One informant said he cut her up and put her in a lobster pot.
The state had no body. No eyewitness. No confession to law enforcement.
But it had the testimony a prior rape victim, a 13-year-old, who said my client raped her and choked her to the point of unconsciousness months before victim in the murder case went missing. My client was 29 at the time of the rape.
It is a case I should have won. There was so much reason to doubt the state's claim. Why one witness said he'd seen the victim years after she disappeared. Sure, he might be mistaken. But he had no motive to lie. There were reasons to doubt the state's case. I argued well, I am told by folks who were there. I should have won.
"But the jury didn't trust you, Norm" Spence says. "It trusted the state, the gentler men." He's pointing at me now, but in a welcoming way. "You know, I would have won that case."
Maybe he would have. Maybe he wouldn't have taken the case. I don't know. I recall years ago his complaining that he could not get into court. His cases kept settling. I offered him a chance to come on board in a gang murder. He declined. "I can't win that case," he said. Criminal defense isn't about picking winners.
I'm a critic of what Spence has created at his Trial Lawyer's College. The place is spooky. Some good folks there. But an awful lot of folks looking for love in all the wrong places.
I was surprised the other day when a stranger called me from Kansas City. He wanted to know about the college. Should he go? He'd heard about the place. But after reading what I've written, he wondered. We chatted for half an hour or so. "If you're curious enough to ask, go. There's no such thing as a bad attempt to learn," I told him. I recommended he read a book I was reading, Spence's latest, Win Your Case: How to Present, Persuade, and Prevail--Every Place, Every Time. I picked it up after I lost the murder case. You could read the book and skip the college. It's all there.
I finished that book hour or so ago. It reminds me of what was best about the college, back in the day, before shrines were erected, brands sold, and lines drawn among disciples. Indeed, I recommend the book for anyone curious about what goes on in the wild's of Wyoming with all those lawyers singing, and painting and walking silently in the wilderness. Spence reflects a lifetime of learning in the courts, and explains how pieces of the college's program shed light on what he has learned.
Listen more. Argue less. Become the witness. Understand her pain, her fear. Don't attack without permission. Ask for what you are looking for. Be honest. Avoid your anger. Love. And don't let your fear force you to strike. Of course, he is right.
And I see at once the way in which I failed my client. Attack is more than a motto for me; it is a way of life. Suppose the attack offended the jurors? Suppose my client faces life without possibility of parole because I tried the case the wrong way?
I got a note in the mail yesterday from one of the state troopers who testified in the case. I was hard on him. He wrote to commend me on a job well done. He was happy with the verdict. His side won. But rarely had he seen such advocacy, he said. My client was lucky to have me. So many of the cops I attack come back to me as clients years later for one thing or another.
"That's the Devil speaking, Norm," I hear Spence saying. "He's appealing to your pride. It is your weakness, you know."
And I know he is right. The sorrow and shame of losing a case I should have won angers me. But can I get beyond that to something more? I gnaw at chains I cannot see. My teeth crack, and the gums bleed, but still I do not see the chain. Perhaps writing about the sound of its rattle will help me better understand its grip on me.
The murder case will go up on appeal. It should be reversed. The judge had no business admitting evidence of a prior rape. How do you corroborate the claims of a snitch with acts that bear only speculative resemblance to what might, or might not, have happened? And why wasn't the jury aloud to hear the testimony of our expert on the unreliability of jailhouse informants, men who exhange half-truths for hope in an unregulated market? I want to try that case again.
I hope I get that chance. My client deserves a better trial.