Michael Gartner: A GREEDY MAN--GREEDY FOR JUSTICE

The greatest show in Iowa last week wasn’t in any of the state’s theatrical venues. It was in the Des Moines courtroom of Federal District Judge Robert Pratt. Gerry Spence, probably the greatest trial lawyer of the past 50 years, was summing up his argument in what he has said is his final case. Lawyers had flown in from all over the country to hear the legendary lawyer from Wyoming, the lawyer who represented Karen Silkwood and Imelda Marcos and who provided the TV commentary during the trial of O.J. Simpson. It was standing-room-only in Judge Pratt’s courtroom.

[Spence’s website says he “spent his lifetime representing the poor, the injured, the forgotten and the damned,” but it’s hard to figure out where Imelda Marcos fits into that.]

Looking like a wise and crafty, old lawyer straight from central casting, with his longish gray hair and slightly rumpled suit, the 83-year-old Spence could be halting of speech and halting of gait, then erect and booming as he mesmerized the courtroom. The 12 jurors, four men and eight women — a diverse group of all-white citizens drawn from central Iowa — didn’t take their eyes off him as he talked of the horrors faced during 25 years of wrongful imprisonment for his client and of what that should be worth in money from the city of Council Bluffs and two policemen there who helped send him to prison.

The trial had gone on since Oct. 31, and it was contentious. There had been more than 100 objections, scores of bench conferences with Judge Pratt and the lawyers. At times it was as if the two plaintiffs — the two who spent all those years in prison — were being tried again for the 1977 murder that the Iowa Supreme Court said in 2003 they were wrongly convicted of, wrongly convicted because the state had withheld evidence.

But the issue was: Should they be compensated, and, if so, by how much?

Spence started out by talking about himself, about how this would be the last time he ever speaks to a jury. “What should your last words be after over 60 years?” he asked himself as he began on Thursday morning what would be a two-hour summation and rebuttal spread over two days. “And then I realized that this case isn’t about me, it isn’t about my life, it isn’t about the end of my professional life. It isn’t about anything except the most important power that our forefathers gave to you, gave to us, and that is the power to get justice and to stop terror, to protect us against a police state.”

“Now I want to tell you something,” he said as he moved to his full-court press. “We haven’t talked about what this case is really about ultimately. How do you get justice in a case like this? What is it? Nobody goes to jail. Those men over there do not go to jail, their lawyers do not go to jail, nobody is strung up, nobody is hung up. This is a civil cause to get justice for the likes of Terry Harrington and Cub McGhee. And the law, if it could empower you, would give you the power to remake history, to remake their lives, to cut from the history the 25 years five months they spent in this horror.”

Then, he got to the money.

“If the law could, it would give you the power to give them back their lives as they were. If the law could, it would make these men whole again and reverse history. But the law is only the response of human beings. We do not have that power. And the only power that is given to a juror in a case like this is the power of money. That’s all there is. You can’t give them their lives, you can’t take away the pain, you can’t replace 25 years and five months in hell, you can’t — you can only give justice in money.”

Ultimately, he asked for $63 million for Harrington, his client in the civil trial. That’s $2 million for every year spent in prison and $13 million for the pain of living with ailments he contracted in prison. He picked up a big box — one like reams of paper come in — and said that that represented “full justice,” and then he picked up a little tissue box, a box that represented “less-than-full” justice. Time and again he went to the boxes, lifting the big, all but sneering dismissively at the little. He planted in the jurors’ minds that the little box represented just $25 million — leaving them with the idea that $25 million is a paltry sum.

He was masterly.

“If I haven’t been fully cognizant of the value, you want to add more, you can,” Spence told the jury as he was wrapping up on Thursday. Or, he said, “You can say, ‘We don’t agree with you, Mr. Spence. You are greedy.’ Once again I say to you, indeed I am greedy for justice.”

And the next day, at the end of his rebuttal on Friday afternoon, the great lawyer, looking worn and tired after a vigorous half-hour of deploring the “lies” and circumstances that sent his client to prison, he pulled up a stool in front of the jury box and quietly talked. He wanted to tell them a story, he said, and he told it to them slowly. The transcript of that wasn’t available at press time, but this is the story:

There was a smart-alec kid and an old man. The kid was going to show up the old man. His plan was to catch a bird in his hand, and cup it. He then was going to go to the old man and say, “Old man, what do I have in my hand?” And the old man would answer that it was a bird.

And the kid’s plan then was to ask the old man if the bird was alive or dead. If the old man said “dead,” the kid planned, he would open his hand and the bird would fly away, and he’d show that the old man didn’t know what he was talking about. But if the old man said “alive,” the kid would crunch his hands and kill the bird, then open his hands and show that the bird was dead and, again, the old man didn’t know what he was talking about.

So the boy caught the bird and went to the old man. “Old man,” he said, “what do I have in my hands?” And, yes, the old man said “a bird.” And, “Is it dead or alive?” the smart-alec kid asked. And the old man looked at him and said, “The bird is in your hands, my son.”

And as he looked at the jurors, he said, “And, ladies and gentlemen, justice, full uncompromised justice, is in your hands. Thank you.” The trial was over.

A verdict is likely in a few days.

Epilogue:     The case ended in a mistrial on Friday, when the jurors said they had a unanimous decision, but then three disavowed the verdicts when polled in open court. The"unanimous" verdicts — subsequently denied — were said to be for the defendants, but attorneys for Harrington and MGhee thought that jurors were confused by instructions as to whether they had to find the defendants guilty in all instances at issue or just in one. The Des Moines Register story is at http://www.desmoinesregister.com/article/20121215/NEWS01/312150034/1002/Mistrial-declared-jurors-disavow-verdicts