SEPTEMBER 14, 2015
I DIDN’T WANT to like this book. Let me explain why. I am a former prosecutor, and for years, we prosecutors have been the targets of Gerry Spence’s invective against the criminal justice system. He even proudly advertises that prosecutors are not welcome to attend his talks and seminars. So I doubted whether I would be moved by what I expected to be the exhortations of one of this country’s best known defense lawyers.
But I was wrong. Gerry Spence has written a terrific book on the problems with today’s criminal justice system. Police State: How America’s Cops Get Away with Murder gives us the best of Gerry Spence. Spence starts out by asking the basic question: “Are we safe from our own police?” What he really wants to ask, however, comes a bit later: “Are we safe from power?” Using tales of his brilliance in court, Spence answers those questions. No, we are not safe, and that is precisely why we need people like Gerry Spence to represent people in court.
If you don’t know who Gerry Spence is, you have not been paying attention to the criminal justice system for the last 60 years. In his trademark fringed buckskin jacket, Spence has been practicing law since he graduated from the University of Wyoming Law School in 1952. He spent a short period as a prosecutor and the last five decades as a defense lawyer. His cases are legendary. From Karen Silkwood’s family’s lawsuit over her mysterious death to his defense of Randy Weaver charged with homicides at Ruby Ridge, Spence has tackled some of the most challenging criminal and civil cases in American legal lore. He has also authored more than a dozen books on the law, Wyoming, and the art of being a lawyer.
In Police State, Spence retells the story of several trials ripped form the headlines he helped make. The best part is that he tells them the way he told them in court — with his own folksy, but brutally candid, take on what occurred in each of those cases. Through the telling, it becomes apparent why Spence is such a brilliant lawyer. He is not contaminated by legal-speak. He speaks his mind and heart. He connects. He wins.
Spence’s first case in the book recalls the prosecution of Randy Weaver after a shoot-out in the back reaches of Idaho. Weaver, labeled as racist survivalist, was charged with murder after his wife, 14-year-old son, and a US Marshal were killed in a stand off with law enforcement. The basic story is known to many, but Spence’s retelling of the events from the Weavers’ perspective is much harder to find. And, in telling their story, one sees why Spence is so persuasive in court. He is a magnificent storyteller. He can yank your heart out with prose as well as he does in the courtroom. For example, Spence tells the story of how Weaver’s family reacted when 14-year-old Sammy was shot and left in a shed where the family could not bury him because they were surrounded by law enforcement. No matter what one thinks of the Weavers, it is heartbreaking to read the family’s conversation:
“We need to go, Papa.” It was Sara [Weaver’s daughter]. “If we go out now we can get it all done before they decide what to do. Remember how you used to say that government men drink coffee till ten, think what they are gonna do till eleven, get their stuff together, and then go have lunch. Remember? We could go now while they’re still thinkin’.”
“I ain’t gonna let ya. I lost one kid already.”
“Somebody has to. They aren’t gonna shoot a girl.”
“Don’t count on it.”
Indeed, the authorities did shoot again. They killed Weaver’s wife while she was holding her baby and then, as Spence described it, left her rotting for seven days on the kitchen floor during the heat of the summer until all the Weavers would surrender.
Spence tells the story of how he successfully represented Randy Weaver in a case that seemed fixed from the start. He didn’t pull his punches with the government or the jury. He also didn’t pull them with his client. He told Weaver that he deplored the Aryan Brotherhood, that some of his dearest friends were Jewish, that his sister had married a black man, and that she had adopted a black child. But Spence vowed to defend Weaver’s right as an American citizen to a fair trial, not his religious or political beliefs. He kept that promise.
He did the same for Brandon Mayfield, a lawyer wrongfully charged with coordinating the al-Qaeda-inspired bombings of the Madrid commuter system in 2004. Spence describes in detail the travesty of an investigation by the federal government. The best part, however, is seeing how Spence explains the basic concept of privacy so much at issue in today’s society. Here is where you get class Spence:
History now permits us to watch these G-men at work. See them in the Mayfield home, sneaking, searching, snooping — into the family’s private drawers and closets. See them handling the family’s most personal possessions […] Watch them as they install those tiny microphones under the bed […] Yes, I hear those who are unwashed in the troubled waters of our times innocently saying, “What’s the big deal? I have nothing to hide.” Personally, I have everything to hide in the privacy of my home. Animals from rabbits to bears, and birds from wrens to eagles, have nothing to hide. But their hole, their den, their nest, is their private, infinitesimal part of the universe that belongs only to them. Put your hand under an old hen who’s sitting on her eggs and see what happens to your hand.
Spence has made a career of representing those who just don’t fit into our society. They worship differently, live differently, and have almost complete disregard for our legal system. They are precisely the types who draw the government’s most intense interest. John Singer was one of them. Singer was shot in the back in a case that stemmed from his insistence on wanting to homeschool his children when authorities thought he could not properly do so. Spence sued on behalf of his widow and seven surviving children. The facts of the case were tragic and Spence shares the essence of that tragedy through the words of Singer’s widow, Vickie Singer, as she tries to convince the judge to recuse himself:
I truly believe that you are an honorable person. I have talked with a friend of yours who went to school with you and he said, “I’m really glad that you have him for a judge.” […] [However], I am worried for me. Because I have to be heard as I am and I haven’t had that chance. My husband never had that chance because he was looked upon as a renegade, as a stubborn and rebellious person. Not one of you in here knew my husband, and I feel badly. And I’m afraid because of the atmosphere and the things that were said the other day that no one will be able to know my husband.
It is not easy to know or understand the “renegades” that populate Spence’s life. But, he does a commendable job of trying to get us to do so. The way that Spence’s clients worship him is evident; he, in turn, seeks to canonize his clients as “victims of Power […] glowed in that certain light of the saints.” I’m not sure I believe that any of these individuals were saints, but Spence has certainly made them extremely human through his telling of their stories. That, in itself, should be enough to compel the criminal justice system to treat them fairly.
In case after case, Spence seeks to use the stories of his clients — from Imelda Marcos to famed lawyer Geoffrey Fieger — to demonstrate how prosecutors, the courts, and law enforcement abuse their power. He uses wonderfully colorful phrases to describe the court proceedings, including those hearings in which he battled the judge as well as the prosecutor. Imagine being Spence when the judge castigated him in front of the jury for his opening statement. Or, as Spence puts it, “The judge bristled like a porcupine with a stick in its ribs.”
Spence is a gutsy lawyer, one of the gutsiest I know. Therefore, it is refreshing to see him repeatedly bare his insecurities as he tried (and ultimately won) these cases. Spence never takes for granted the challenge in confronting power. He disdains it, but he wisely fears it as well. In doing so, he never lets up in constructing the most powerful defense for his clients.
Not surprisingly, in addition to representing high-visibility clients, Spence has represented some of the “little guys” who can easily be run over by the criminal justice system. Young black men certainly fall within that category. So, Spence tells the story of Dennis Williams, a young black man who was nearly executed for a murder he did not commit. Spence represented Williams in his civil case after he was exonerated. As the director of an Innocence Project, I am more than familiar with the problem of wrongful convictions. What Spence says is true. Defendants throughout this country receive inadequate representation. Most lawyers are not like Gerry Spence. In fact, I’ve always thought that if he wanted to rail, he should direct some of his choicest criticism at defense lawyers who completely fail in their responsibilities. They should be more Spence-like. They should investigate more, challenge witnesses more, question the police more, and commit more, like Spence has, to ensuring their clients receive the best representation possible. But too many do not; the results are cases like the ones Spence describes.
If cops want to do the wrong thing, they have the power to do so. There is precious little oversight of their work. The standard for overturning a wrongful conviction is shockingly high. Historically, too many forces have allowed bad cops to do the wrong thing. Add to that the racial biases in this country and it is not a pretty picture. Both cops and prosecutors have done some pretty horrible things, including playing a game called “Niggers by the Pound,” which, as Spence describes, rewards police and prosecutors according to the number of African-American defendants who were convicted. Spence has a right to be angry.
However, what makes his book particularly good is that he is honest about how his clients respond. There, too, I found his observations reflected in my own experience. When he described how Williams reacted to his wrongful conviction after he was exonerated, Spence recalls that Williams refused to be defined by his anger. As Williams said to him, “I don’t think that anger is the answer. It’s going to hold me back. I can’t think clearly if I’m angry. Instead, I try to focus my energy on creating.” Indeed, this has been my experience as well. My exonerated clients refuse to be angry. They are too busy getting on with life. Spence adds real humanity to this book when he goes into depth about those lives — as his exonerated client became a counselor in a youth program on the west side of Chicago and became a part-time student at Governors State University, campaigning for justice reform. Spence is at his best when he reminds us of the humanity at stake if we allow power to take a downward turn.
Spence saves one of his most touching stories for last. The title is, “Give the Sparrow to the Hawk.” The sparrow is Spence’s client, Albert Hancock, charged with murder in a case where the late-great Johnnie Cochran would have said there was a definite “rush to judgment.” Albert is young, frightened, and tricked into giving a false confession. Yes, it happens, and it happened in this case. This is one of the best chapters because it includes more of the actual transcripts from the trial. If you want to read the best of Spence’s book, read the best of Spence’s examinations in trial. Nothing artificial there. Pure lawyering skill — like a bird’s-eye view of a trial of the century. And even some legal humility as Spence shares with us his prayer of a trial lawyer: “Dear Lord, please just let me win this one, and I promise I will never try another case. Never.”
Decades ago, I decided to become a lawyer after I read Louis Nizer’s My Life in Court. What a great book! What a great lawyer! Gerry Spence and Louis Nizer couldn’t be more different, at least from outside appearances. But the fire, intelligence, and spirit of each have much in common. They both love people and the legal system enough to fight against forces that would seek to ruin it. For Spence, that is “Power.”
Spence has no illusions that he will slay the Power-monster that threatens our freedom. Hear him clearly, “We need the police.” However, as his epilogue tries to chronicle, we need reforms to ensure that power does not just serve itself. Spence’s suggestions are far from new or novel. He makes a list:
- No more forced confessions.
- All police must wear video cameras that fully reveal their conduct.
- Better psychological testing for police candidates.
- A citizens’ commission to oversee police conduct.
And so on …
These are all very sensible reforms, but they are not new. Nerdy law professors have championed these ideas for years. But that does not matter. Spence’s book is not great because he has novel ideas for improving the criminal justice system. Spence’s book is exceptional because it has shown us, in the most moving and starkest terms, why we cannot wait any longer for these reforms to be adopted.
Gerry Spence has made his mark on our criminal justice system. We think of him as tough as nails and fearing no one. This book shows us more of Gerry Spence. He is tough, but he is also kind. He speaks lovingly of the wives of his clients who must often bear the brunt of the harshness of the criminal justice system. He speaks honestly about his own insecurities in representing clients. That is a side of Gerry Spence that is definitely worth seeing, even if he won’t let me attend his seminars.