Gerry Spence claims on his website to have “never lost a criminal case either as a prosecutor or a defense attorney.” Of course, there was the little matter of the criminal case he prosecuted against Ernest Newton, described by Spence in his autobiography The Making of a Country Lawyer at page 329. The jury acquitted Mr. Newton of ten counts but did convict him of the eleventh. However, the appellate court overturned even that count, in what our hero implied was a “frivolous, flighty, featherbrained decision clothed in high-sounding language,” on the grounds that the trial court didn’t have jurisdiction over the case pursuant to the indictment Spence had obtained from a grand jury. Oops. According to Spence, he decided then to end his career as a prosecutor as a result of the “pain of seeing that man endure” what Spence had put him through. But the apparent defeat handed Spence by the combined judgment of the jury and appellate court appears from his autobiography to pain him more. What about his vaunted spotless record in criminal cases?! But maybe Spence doesn’t count this case as a loss because, since the trial court was without jurisdiction in the first place, it’s like it never even happened.
And then there was the other little matter of the three week bench trial in an Oregon juvenile court after which the judge found that the state had proved beyond a reasonable doubt that Spence’s client, Michael Jones, Jr., was guilty of acts which, had he been an adult, would have constituted manslaughter in the first degree. Granted, the Oregon court of appeals subsequently reversed the trial court’s finding, concluding that the state had failed to prove its case beyond a reasonable doubt.
So when Spence claims to have never lost a criminal case, either as a prosecutor or a defense attorney, maybe he’s only referring to the love shown him by juries, and not to the complications in his win-loss record introduced by those pesky judges (though the claim on his website doesn’t make that distinction). But even then, didn’t the jury in the Newton case acquit the man Spence was prosecuting on 10 out of the 11 counts Spence had charged? It appears therefore that Spence suffered 10 real losses at the hands of a jury in that criminal case alone, especially since, as Spence observed in The Making of a Country Lawyer, “With all the power prosecutors possess, they ought not lose cases. The wrong case, the unjust case should be rejected in the prosecutor’s office before he seeks an indictment.” If Gerry Spence counts as a win for the prosecution any case in which the defendant is convicted of anything, then I guess I can’t count this case I tried before a jury as a win, even though there was never really any doubt that my client was guilty of and would have pled to the misdemeanors the jury convicted him of (battery and driving while intoxicated), and even though both my client and the prosecutor viewed the felony domestic battery count as the heart of the case and the jury’s acquittal thereon as an unmitigated win for the defense.
And let’s not forget Spence’s loss at the hands of Vincent Bugliosi, who successfully persuaded a Dallas jury beyond a reasonable doubt that Spence’s client, Lee Harvey Oswald, had assassinated John F. Kennedy.