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.

Comments: (5)

  • Winning a criminal case is a fool's mission, a cra...
    Winning a criminal case is a fool's mission, a crap-shoot. Witness: O.J. Simpson, Robert Blake, Ed Grant, Michael Skakel, Peter Reilly, Brian Rose, and thousands of others falsely arrested (or not) and/or maliciously prosecuted by the State. Oh yes, State v. Doriss, 2002, the most important case in a decade--which got no, zero press.
    As more than one person has said to me, "Well, you must have done SOMETHING wrong, or they would not have arrested you!" Wrong, wrong, wrong, wrong, and wrong again.
    The State is in the business of filling up those five new prisons built under Rowland/Rell. The bondholders must be paid. It is a BUSINESS,... read my lips. The business is called Prison-Industrial Complex. Jobs must be created and filled; wages must be paid, and taxes must be collected to pay the costs of all this busywork.
    Let those budget deficits rip!?! CT is hardly alone in its foolish, UnKonstitutional errand of criminalizing poor judgment by or unfortunate happenings in the lower classes in order to justify its ever-increasing expenditures in the phony-baloney 'War on Crime'. I call it 'class warfare', not justice and the rule of law. The true criminals are running the show, FYI. They stole the judiciary from the citizenry in broad daylight, without a peep or a whistle. Not to be named on this forum, but they know who they are. One of them is an appointee to the 2nd Circuit Court, an absolutely unsupportable appointment if ever there was one. Am in full agreement with you on that one. The man is not a real judge; he is an impostor.
    Happy dreams, as my Jungian friends would say. You made your bed, now lie in it, as others have said. Nobody ever said it was going to be easy. I would forget about Spence if I were you. I believe you are the better man, win or lose. If you have never lost, you have learned nothing; no pain, no gain. Trust it. Just be yourself. Stick to what you know, and know what you stick to.
    Posted on March 22, 2010 at 2:06 pm by William Doriss
  • Tad:
    This is a very interesting no-body murder ca...
    Tad:
    This is a very interesting no-body murder case:
    http://www.mlive.com/news/bay-city/index.ssf/2009/05/nelson_to_face_murder_charges.html
    While in law school I briefed the corpus delicti issue, and the charges were dismissed at trial. The Michigan Court of Appeals reversed. Very interesting issues.
    Posted on March 19, 2010 at 4:30 pm by Mike
  • Found it. Leniart. Tad DiBiase
    Found it. Leniart. Tad DiBiase
    Posted on March 19, 2010 at 2:21 pm by Tad DiBiase
  • Spence is right about you.
    You fear vulnerability...
    Spence is right about you.
    You fear vulnerability. That leads to greater pain, because it protects only from the superficial. The sting of this defeat cut you much deeper than the sting of being open would have.
    Spence might have personal issues, but so do I and so do you. He wins because he cares - even if it's only caring in the sense that the actor cares. An actor *does* have emotion when in role. So even if Spence does not personally care about his cases, when he gets in role, he cares.
    Caring makes us vulnerable. When we care, others can reject us. They can hurt us.
    It's easier not to care.
    But is it better?
    Posted on March 19, 2010 at 9:42 am by Mike
  • Mr.Pattis: I wonder if you might send me the infor...
    Mr.Pattis: I wonder if you might send me the information on your no body case. I collect information about these cases, www.nobodymurdercases.com, and I have only one case from Wyoming. Thanks and all the best, Tad DiBiase
    Posted on March 19, 2010 at 7:26 am by Tad DiBiase

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