Tuesday, November 25, 2003

Witness for the Prosecution

Good work by Michael Miner in the
November 7 edition of the Chicago Reader::::

"Witness for the Prosecution"

The prosecutors of America have despised the Tribune since they read the first sentence of the first installment of "Trial & Error," a five-part series on prosecutorial misconduct subtitled "How Prosecutors Sacrifice Justice to Win." The opening salvo appeared on January 10, 1999, and the Tribune called it "The verdict: Dishonor." It began, "With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases."

The Tribune nominated "Trial & Error," bundled with a subsequent series on the death penalty, for a 2000 Pulitzer Prize. The entry reached the finals but lost, and the National District Attorneys Association was merely the largest of three groups of prosecutors who wrote the Pulitzer board denouncing it. The president of the NDAA told the board that there was much less to "Trial & Error" than met the eye. The Tribune had reviewed 381 homicide convictions that were overturned. The NDAA said it went back over 221 of these cases and discovered that many were reversed on technicalities. In over half the cases the defendant eventually was retried and convicted of the same or a lesser offense.

"Why does the Tribune use words like 'innocent,' 'exonerated,' and 'free'?" Joshua Marquis, an NDAA board member from Clatsop County, Oregon, asked me at the time. "Because it wants to convey to its readers these were people who did nothing wrong who were snatched up by a corrupt system and thrown in prison."

Marquis, a founder of the NDAA's media committee, courts reporters, and he and I have communicated occasionally over the years. On Sunday, October 26, the Tribune launched a new series, "The Legacy of Wrongful Convictions," and before that day was up Marquis had e-mailed me tearing into it.

"The Tribune is utterly predictable in their 'news' coverage of criminal justice issues," he wrote, "the mantra that our prisons are full of innocents, prosecutors are scum, and only the Trib and criminal defense lawyers will protect innocent Americans."

Marquis is good with invective, but he makes serious points. The most interesting thing about his latest batch is that they have a lot more to do with "Trial & Error" than with "The Legacy of Wrongful Convictions" and demonstrate how easily reporters and prosecutors can talk past each other.

"Crimes go unsolved as DNA tool ignored," as the first installment of the new series was headlined, looked at convictions overturned by DNA testing. Sometimes prosecutors stubbornly insist they had the right guy and won't reopen the cases, reported Maurice Possley and Steve Mills, and often "authorities have not followed up by submitting the genetic profile of the suspected perpetrator" to CODIS, the FBI's national DNA database, where it might find a match. "The failure to seek a DNA match is all the more surprising," Possley and Mills went on, "given that in the cases where DNA was submitted, genetic profiling identified the real criminal more than 40 percent of the time."

To make matters worse, their story continued, CODIS (for Combined DNA Index System) won't accept genetic profiles from Dr. Edward Blake, "one of the nation's most sought-after DNA testing experts." That's because Blake's lab isn't accredited. Blake has no respect for the accreditation process, so he won't jump through its hoops.

"In their front page story about how the Trib researched 'every single DNA exoneration' (which is possible to do because there are relatively speaking so few of them)," Marquis wrote me, "[they] wailed that the 'premier' DNA scientist, Dr. Edward Blake, was being denied access to DNA bases. Missing from their story was the fact that Blake is the close associate of Barry Scheck, and while [Blake's] scientific credentials are unchallenged his objectivity went out the window years ago (see Peter Boyer's article on 'DNA on Trial' in the New Yorker)."

I dug out that nearly four-year-old article. Boyer reported that Scheck was known nationally for his Innocence Project, a campaign to exonerate the wrongly convicted through DNA testing, and that he was also the defense-team lawyer who figured out how to neutralize overwhelming DNA evidence against O.J. Simpson by attacking the way it was collected and stored. Blake was involved in that trial as a consultant. Boyer described him as "a coveted asset in a legal fight, on either side of the aisle," but also as someone whose tendency to get emotionally caught up in legal cases "some find discordant with the scientist's mandate for dispassionate inquiry."

Marquis held it against the Tribune that Possley and Mills didn't go into this backstory. That wasn't the only tangent he found missing. "Even more prominently absent," his e-mail went on, "was the fact Scheck has violently opposed allowing his clients' DNA profiles from being entered into the CODIS database, clearly fearing they'll be identified as having committed some other rape or murder."

If that's true about Scheck, Mills tells me, "it's because he's representing his clients." After all, lawyers don't advise their clients to do things that could incriminate them. But the pretentiousness of the Innocence Project sticks in Marquis's craw. "I think, but cannot swear, that I was actually in some hearing or debate with Barry when this issue came up and remember his objecting to 'exoneration' samples being used for any other purpose than seeking to exclude his client from that particular offense," Marquis wrote in a later e-mail. "It struck all of us on the prosecution side as an extraordinarily intellectually dishonest approach, unless he conceded that his goal was simply to get his client off the hook, not seek the truth.

"That is my biggest gripe. I have nothing against tough defense attorneys who put the state to the test, but that is a very different matter than painting oneself as the 'truth seeker.'"

Finally Marquis brought up the case of Sonia Jacobs. "There are really innocent people who have been on death row," he wrote, "but to be as facile as Possley is with cases like Jacobs is not good journalism."

Monday, September 15, 2003

Gerry Spence vs. The Truth

by Joshua Marquis
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.

Friday, September 12, 2003

Book Review: "The Smokin Gun" by Gerry Spence

printed in the Newport News-Times of Septmber 12, 2003

"Prosecutor takes look at book on Lincoln County"

At the end of September, the Wyoming celebrity attorney who has been called the "buckaroo barrister" will visit a Newport bookstore to autograph copies of his book about the murder of Wilfred Gerttula in July of 1985 and the trials of Sandy Jones and her son.

Gerry Spence made a grand entrance to Newport in November of that year in his private plane, announcing to the press that the case was "obviously a case of a powerless woman caught in a system in which the power structure is of men."
On a July afternoon 18 years ago, Wilfred Gerttula and his wife were driving down Immonen Road when they were confronted by Jones and her then 15-year-old son, Michael. Soon afterward, a hail of bullets had been fired from guns carried by Mrs. Jones and her son, and Wil Gerttula lay dying in his pickup.

Monica Gerttula had been armed with a camera that day and took a photo of Sandy Jones, rifle to her shoulder, smoke coming out the barrel. Spence titled his book "The Smoking Gun" based on that picture. The book is sub-titled "A True Story," but for those of us who lived through the events, a more accurate description would be "inspired by some things that actually happened."

For almost a decade I have served as the district attorney in Astoria, on the north coast, but 18 years ago, I was a deputy district attorney in Lincoln County. Although I had not lived in Newport when Gerttula was killed, I was assigned to try the case of the teenage son of Sandy Jones, who was accused of murder in juvenile court. Then, as now, a juvenile is entitled to all the rights of an adult except that of a jury trial. The Jones family claimed the local judges were prejudiced against them, and a judge from Corvallis was assigned to try the case.

Spence made quite an entrance, and was aided at counsel table by another lawyer from his Wyoming law firm and Lincoln City attorney Steve Lovejoy, who had been appointed by the court to represent Michael Jones Jr.

Spence also had a new theory of the case - one which neither his client nor his client's mother had ever bothered to tell police. He claimed that Gerttula had been shot by his own wife, who then somehow disposed of both the gun and the spent shell that would have ejected from the weapon.

In the trials that followed over the following years, neither Sandy Jones nor her son ever testified or publicly told their version of how Wil Gerttula ended up shot to death. They had Gerry Spence, whose skills as a storyteller are remarkable, to spin a tale to challenge the state's evidence.

Young Michael's trial took most of December 1985 and attracted spectators from around the state to watch Spence's mesmerizing, 6-hour closing argument to Judge Robert Gardner. Spence had made it clear that he was going to also represent Michael's mother, whose court-appointed attorney, Michele Longo, sat in the courtroom throughout the juvenile trial. The defense plan was clear - get a not guilty verdict in the son's case and then it would be a cakewalk to destroy the state's case against the mother at the jury trial scheduled for January 1986.
But for a lawyer who claims to "have never lost a criminal case," it didn't turn out as he expected. Judge Gardner not only ruled that Michael had shot Gerttula, but after Spence had earlier insisted on a series of "special findings," ruled that the prosecution had proven beyond a reasonable doubt that Michael had not acted in self defense and that "neither Mr. Gerttula nor Mrs. Gerttula had in their possession or fired a pistol or rifle."

Clearly stunned, Spence left town, only to return the following month demanding that Judge Gardner be taken off the case and that another judge's rulings that found proof of guilt against Sandy Jones was strong enough to hold her without bail be rejected. He also wanted a re-consideration of yet another judge's denial of his attempt to move the case out of Newport.

Salvation came on Jan. 25, 1986, in the form of Judge Harl Haas of Portland, who not only granted all those requests, but also agreed to exclude the entire Lincoln County District Attorney's Office from the case on the grounds that then-district attorney Ulys Stapleton "might" be called as a witness.

A few months later, Haas dismissed all charges against Sandra Jones after a Lincoln County deputy sheriff who had been involved in the case was charged with (and eventually convicted of) stealing drugs from the evidence locker. The appellate courts overruled Haas' dismissal, ordered the charges reinstated, and the case eventually went to trial in Portland.

Sandy Jones was acquitted of all charges and, a year later, the Oregon Court of Appeals reversed Judge Gardner's decision, although Michael was by then no longer a juvenile.

Spence spends only 80 pages of his 435-page book on the trial in Newport, and prefers to recount his many victories in the hearings and trial in Portland; though he does describe Oregon's central coast as a "drab and miserable" place run by a mysterious clan of "good old boys" who are never actually identified.

The book is co-dedicated to Judge Haas, who became fast friends of Spence and called the trial "the high pointof my professional career," and to co-counsel Longo, who had already been paid $85,000 by the state before the final trial started, according to an article in the Nov. 8, 1988 edition of The Oregonian.

As in Spence's 12 other books about his trials and triumphs, there are but a few heroes (Spence, the lawyers who help him, and his clients), and lots of bad guys (me, all the other prosecutors in the cases, the police, the News-Times, The Oregonian, and the vague conspiracy of mythical "good old boys"). Lincoln County residents who lived here in 1985 will find little they recognize in the book, which takes events that happened months, even years, apart and merges them into a single day, apparently for dramatic effect.

In the book, Spence concedes that "If I've learned one thing, it was that trials do not seek the truth, nor are they always intended to deliver justice," and years later, the Oregonian reporter who covered the trial felt so strongly about what he had seen that he wrote an opinion piece titled "Jones' lawyer sought only victory, not truth."

Monday, July 7, 2003

Letter to Center for Public Integrity

Here's my published response to a study on prosecutorial misconduct from the Center for Public Integrity.

Dear Center for Public Integrity:

The study entitled "Harmful Error" claims that prosecutorial misconduct is epidemic among the thousands of state and county prosecutors. The truth is that such misconduct is better described as episodic, those few cases being rare enough to merit considerable attention by both the courts and the media.

There is no question that given the critical role of gatekeeper the district attorney holds in our legal system the men and women who work as prosecutors should continue to be held to the highest standards of conduct. In the criminal justice system there is an elaborate system of checks and balances designed to protect both the innocent and the guilty. Alone among the legal profession, a prosecutor's sole allegiance is to the truth - even if that means torpedoing the prosecutor's own case.

When trial judges make mistakes appellate courts will reverse or remand those cases. We call these cases "judicial error." When defense attorneys fail to properly represent their clients, the accused's conviction is frequently set aside because of "inadequate assistance of counsel." Yet when a prosecutor makes an error it's called "prosecutorial misconduct," a term that summons up images of a district attorney hiding evidence, lying to a jury, or framing an innocent suspect. The reality is that overwhelming majority of prosecutorial errors are indeed "harmless" not "harmful," meaning that there was no malice on the part of the D.A. and that there was no unjust result. Keep in mind that only the defense has the right to appeal misconduct and therefore there is no judicial review of misconduct by a defense attorney.

How pervasive are instances of true misconduct by prosecutors? Because record keeping varies so much from one state to another it would be unwise to draw any sweeping conclusions across the country. The statistics on this website about my own state of Oregon show that in the last 33 years Oregon's appellate courts have raised issues of prosecutorial error 44 times but in only 8 of those instances the prosecutors conduct was found to be prejudicial. Comparing those numbers against the thousands of criminal appeals rendered during this same time provides a rate of prosecutorial misconduct of less than one tenth of one percent. It is even more instructive to look at what kind of misconduct was deemed "prejudicial"—in one of those eight cases it was the exasperated description of a professional defense witness in a drunk driving case as a "pimp." The prosecutor never should have made the comment, but it is hardly in the same class as concealing evidence.

The study implies that in those rare cases where prosecutors get caught little more than a slap on the wrist is given. The researchers missed no less than two cases in the past 10 years in Oregon where elected prosecutors were permanently disbarred for misconduct in office. I should know—I have been three times elected District Attorney of Clatsop County where I was originally appointed by the governor to replace the previous District Attorney who was indicted, convicted, jailed and disbarred.

Prosecutors continue to be subject to the harshest sanctions on those truly rare occasions where they violate their oaths. No human endeavor is error free and the only way to achieve even lower error rates is simply to avoid prosecutions altogether.

Editors' Note: The Center thanks District Attorney Joshua Marquis for his thoughtful response. We agree that prosecutorial misconduct is episodic, not epidemic. We never said—or meant to imply—otherwise. We also thank Mr. Marquis for pointing out that we did not cite two cases in Oregon of elected prosecutors who were permanently disbarred for misconduct in office. We have made the corrections in our database and posted them on our website.