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."