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. Spence wrote a book about the Oregon trials The Smoking Gun.
I was at the courthouse in Portland during a day or two of this trial. I was able to spend some time with Gerry and his partner during recess. He did an amazing job of obtaining an acquittal for his client. I have part of the transcript of that trial. I recently re-read Gerry’s examination of the polygraph operator from that trial. Gerry’s position was the accuser, wife of the deceased, was actually the one who accidently shot her own husband and then blamed his client who was a neighbor. He called the polygraph operator to show the accuser had failed the polygraph test. I’m setting out a few illustrations from that transcript for your consideration.
One thing Gerry did was to re-create how the polygraph was conducted by his assuming the role of the person being tested and having the operator go through the procedure:
Q. Do it, please.
A. Well, the first thing I do – it is important you understand exactly what a lie is, and I would ask you to give me a definition for lying, Mr. Spence, how would you define it?
Q I would say a lie is when I intentionally tell you something that is untrue
A..What is truth to you, then?
Q. Truth is something that I believe.
A. Okay. You are one up on most people. Most people say the truth is what actually happened or they try and equate it to being factual.
Spence then had the operator go through the procedure demonstrating with him as the subject. Re-enactment in the courtroom is a very powerful tool we need to use a lot more than we do. The famous criminal defense lawyer of the 1920’s, Earl Rogers, was famous for his courtroom recreations to prove his point on cross examination.
I was interested in how Spence handled the judge, who had more then a few occasions to get involved with questioning the witness. Here’s an example after an objection by the prosecutor and a long exchange between the court and prosecutor.
Mr. Spence: I withdraw the question. I must say that it was, I think, a useful colloquy between the court and counsel for which I thank both the court and counsel to help me
This is what happened after there was a defense objection and the court went through a summary of his understanding of the point involved.rame these issues were struggling with.
The court: I think that was the point.
Mr. Spence: Well, you did it so much better than I did. (then Spence to the witness) I very seriously wish I had put it to you in that fashion the judge just did , but I would want to know something else.
Here’s an example of putting the issue directly to the witness so there is no question about the point Spence is trying to make:
Q. You see the problem with where we are, Mr. Tolliver, is that you can remember those things that you need to remember like the test was invalid, but the circumstances surrounding that, you sometimes are hazy about which indicates, would it not, the need for proper record keeping?
This is a good example of telling your story in cross examination and not waiting for final argument to explain the significance of what happened on cross.
Q. You didn’t leave room in your mind for the proposition that the state’s principal eyewitness was triggering a response at -14 (which indicates lying) simply because, as your own chart showed you, she was lying?
A. That is a definite possibility, Mr. Spence, yes
Q. Well, if that is a definite possibility and you knew it was a definite possibility, why didn’t you take some steps to get that matter resolved.
A. Because it’s not my responsibility to get those matters resolved.
Q. Didn’t you have any calm of conscience yourself in knowing that this woman was now going before a grand jury and was going to take an oath and was going to testify on a matter against another woman when you didn’t know in your own mind – you’d hadn’t resolved in your own mind – the possibility that she was lying ?
Here is another example of telling your story in cross examination and making sure your point is clearly understood:
Q. All right, now, you say that she was upset with me as a defense attorney. Isn’t that consistent with her also being afraid that this so-called big-name attorney might discover and proof fax that which showed that she had shot her own husband?
A. That is a possibility yes.
Q. You can’t sort that out can you
A. No I can’t
Q. And isn’t it true that her being upset may have been the result her of her having actually have you question her about that?
A. That is also a possibility.
While prosecutor frequently objected, Spence, as is his practice, did not object to the prosecutor’s cross of this witness except once. Here’s how he handled it:
(prosecutor question ) What was the frame of – what was the emotional state of Stapleton and Marquis when they asked you to do this?
Mr. Spence : you know, I haven’t objected here just because I’m trying to be a nice guy. do you want me to stand when I object, Your Honor?
The court: yes
Mr. Spence: when I think if he is going to testify to the concerns or agitation of Mr. Stapleton or Mr. Marquis as my so-called encroachment , there should be more than his conclusion in that regard ; that we should have some foundation.