I recently read “The Smoking Gun,” famed defense attorney Gerry Spence’s account of his successful defense of a woman and her son accused of Murder. Taking place in the 1980s, it is a vivid account of how trials and their preludes sometimes actually happen. Little has changed in that regard today.
Going through this 2003 book, I found myself dog-earing pages where Spence had made memorable observations about trial strategy and the psychology of courtroom battles. Not until after I had finished the book did I discover “Gerry Spence’s The Smoking Gun As a Teaching Tool,” written in 2004 by Dana K. Cole of the University of Akron School of Law. Cole makes some excellent points for those who get involved in this sort of thing, and you can read it for free.
It’s not just for those of us who spend a lot of time in court. Anyone who keeps or carries a gun could have found themselves in the same situation that generated this trial, and would be well served by knowing what is in “The Smoking Gun.”
I agree with most of Spence’s points, and most of Cole’s, if not all. The excellent Cole analysis runs 78 pages and I can’t go over all of it in this space.
One of the key issues was Spence’s carefully weighed decision not to have his defendant testify. I recommend very strongly that in a self-defense shooting, the defendant take the stand, if only because the issue isn’t “whodunit,” it’s ‘why did he or she do it,” and only the defendants themselves can truly answer that. However, in “The Smoking Gun” case, defendant and defense counsel maintained that his clients didn’t shoot the deceased, ergo, not a self-defense shooting per se.
That said, there are cases where even I have recommended that the shooter not take the stand if they are too physically or emotionally fragile to withstand a grueling cross-examination. I go into that in much more detail in my “Self-Defense and the Law” column in the current issue of Combat Handguns magazine, the November/December 2021 issue, presently on the newsstands.
@ Mas – “I recommend very strongly that in a self-defense shooting, the defendant take the stand, if only because the issue isn’t “whodunit,” it’s ‘why did he or she do it,” and only the defendants themselves can truly answer that.”
Yes, indeed. IMHO, this was a prime mistake made by the Derek Chauvin Defense Team. They never put Officer Chauvin on the stand.
As a result, the Anti-American Media and the Prosecutor had a free hand to paint Officer Chauvin for the jury. They painted him as a monster. As a racist psychopath who took sadistic pleasure in kneeling upon George Floyd’s neck until he was dead. This manufactured image, along with the fears (fed to the jury) that the city would burn unless they delivered a “Guilty” verdict, pretty much doomed the Defense to failure.
Given the “kangaroo” nature of this trial, I am not sure that Officer Chauvin would have ever received a fair shake. Nevertheless, the decision of the Defense to not put him on the stand was “the final nail in his coffin”.
The trial for Kyle Rittenhouse will be coming up shortly. That is, unless it is postponed again. The American Left is doing everything in their power to “stack the deck” against Rittenhouse just like they did to Officer Chauvin. I think that it has a high probability of being turned into a political “Show Trial” too.
I hope that the Rittenhouse Defense Team profits (vicariously) from the mistakes made by the Chauvin Defense Team. They should have been spending the months, of the current postponement, in preparing Kyle Rittenhouse to take the stand and explain the reasons that he had to resort to the use of deadly force to save his own life.
A fair justice system no longer exists in America here in the 21st Century. The “Scales of Justice” are heavily stacked to favor one political side only. Still, if Kyle Rittenhouse can clearly explain what happened, the jury may resist the political pressure and find him “Not Guilty”. It happened before in the Zimmerman trial.
TN_MAN,
As you know, there is video footage of Kyle Rittenhouse defending himself. I think Mas wrote about it, and Mas or someone remarked that Kyle did a fantastic job of shooting ONLY in self-defense. Remember he was 17 at the time, so even if he had good training, he could not have had many years of good training to prepare himself for that incident. I don’t even need to point out that that incident required quick decision-making, under stress, while out-numbered, in low light. Kyle Rittenhouse performed well.
I am guardedly optimistic because of his performance, and the existence of his actions on video. If the jury is made up of half-decent, half-sentient beings, Kyle may have a chance to be found “not guilty.” If the Left succeeds in getting a jury from Hell, then Kyle will be in trouble. No matter what happens, we know the fake news media will paint Kyle as a conservative, Rambo wannabe. Look what they did to the McCloskeys and Zimmerman. They hate those of us on the Right. They hate good citizens who work, pay their taxes, and love America.
I want to stress that I am not a legal expert. I am just making guesses about what will happen from watching past and present events and reading about similar events.
@ Roger Willco – “I am guardedly optimistic because of his performance, and the existence of his actions on video.”
Yes, having the video is good in this case. However, a good prosecutor can take a video and interpret, twist and spin it for the jury. There was plenty of video in the Chauvin case, as well, but the media and the prosecutor were able to spin it into a weapon to destroy this police officer.
While the video footage, in the Rittenhouse case, shows a clear-cut case of self-defense to people like us, who understand firearms and who understand the dynamics of self-defense, you have to understand that the average person who sits on the jury may be ignorant about these matters. Worse yet, they may have false views instilled by Hollywood movies and media indoctrination.
I bet that the prosecutor will do everything in his power to exclude anybody from this jury that possesses real experience with firearms or self-defense training. You won’t see any NRA members sitting on this jury! 🙂
The Defense cannot make the mistake of relying upon the “presumption of innocence” since the video does establish Kyle Rittenhouse doing the shooting. The Defense cannot just let the video be shown and then sit back and say, “See, clear-cut self-defense”. The Defense must know, going-in, that the media and the prosecutor will twist that video and color it with malice. Kyle Rittenhouse will be manufactured into a “monster” just like Derek Chauvin was made into one.
To win, the Defense must COUNTER-ATTACK! They must educate the jury as to the elements that add-up to self-defense. They must present the jury with their own interpretation of the video footage that shows these elements exist. Finally, they must put Kyle Rittenhouse on the stand so that he can articulate the threats that he perceived and how his actions were taken only in self-defense.
The American Left and their prosecutor will come after Kyle Rittenhouse with the full POWER of the State and the Media COMBINED. Against such a powerful attack, only a powerful DEFENSE, that also counter-attacks on every point, can prevail.
The video footage in this case may turn out to be a two-edged sword. A passive defense that says “Go Prove it” will fail. With the deck stacked against Kyle Rittenhouse by the Left, only a powerful and active defense has a chance of winning his freedom. The Left will place him into a position where he is presumed “Guilty”. Kyle Rittenhouse will have to actively prove that he is “Not Guilty” by reason of Self-Defense.
TN_MAN,
I suppose if Kyle Rittenhouse was a member of Antifa or BLM, he would not even be going to trial. Aren’t big city DA’s letting even felons go free?
@ Roger Willco – Yes, the American “Justice System” is rapidly becoming an “Injustice System”. The political “Brown Shirts” of the American Left, Antifa or BLM, can intimidate, threaten, loot, and burn (at will) and know that they will be granted instant bail with any charges soon being dropped. In contrast, street protestors against the Left are accused of “Insurrection” and are thrown into prison for endless months without bail being granted at all.
Antifa protestors can burn down a building and walk free the next day. A conservative protestor that does nothing worse than trespass on Government property is thrown into jail for endless months, never granted bail, and every effort is made to “breakdown” the person’s will and belief system so as to make him or her “confess” their crime. By the way, their true crime, in the eyes of the Left, is not trespass. It is defying the American Left. It is failure to conform to the dictates of the State and a failure to mouth the lies that the Left publishes for the People to chant and repeat.
Even more hypocritically, high-placed members of the American Left (politicians, members of the Administrative State, media figures, etc.) can embezzle funds, take bribes, commit sex crimes, and engage in open corruption without ever being held to account.
In contrast, any ordinary citizen that acts in self-defense (especially if it is perceived as being in defiance of the Left) will be hounded and prosecuted to the full extent of the law. If the defiance is not physical but merely involves speaking out against the Left, then they will be smeared, cancelled and an effort made to destroy their career and livelihood.
In addition, conservative politicians (if they draw the malice of the Left) will often be tarred in the media, accused with false allegations, have their reputations smeared and, possibly, be entrapped into legal troubles. General Flynn is a prime example of this approach.
When Lady Justice takes off her blindfold and, instead, spreads her legs to become the compliant prostitute of a particular political party, then things have come to a sad pass in America. I say to hell with Racial Justice. What this Nation really needs is some good, old-fashioned “Justice” Justice.
TN_MAN,
I agree with everything you wrote. Thanks for reminding me that there are patriotic Americans languishing in jail, because the Left says they trespassed onto the Capitol grounds on January 6th. When the Left speaks of this, they sound so horrified. I think the patriots were wrong to enter the Capitol during that emotion-charged event, BUT THEY DIDN’T EVEN BURN IT DOWN! The Left likes to burn down businesses, and gets away with it.
Hmmm. American citizens languishing in jail. Reminds me of President Franklin Roosevelt interning the Americans who had Japanese, German and Italian heritage back during WWII.
People on the Left and the Right look at the same event, and perceive entirely different things. It is surreal. Our perceptions of the world are entirely different, and we can agree on very little. We can’t even agree on what the facts are. Discussions are futile, for that reason.
If I was to prosecute Kyle Rittenhouse, I would stress that he was a minor, 17-years-old. He crossed state lines. In other words, he should never have been there. If he had stayed home, those 3 rioters would never have been shot. I would concede that he acted in self-defense, but I would paint him as a vigilante, Rambo wannabe.
The Left seems to win most of the time, and their progress is measurable. It’s sad watching the West commit suicide.
@ Roger Willco – “I would concede that he acted in self-defense, but I would paint him as a vigilante, Rambo wannabe.”
No. The prosecutor will not take the approach that you suggest above. It would lead to legal defeat. As Mas could tell you, self-defense is (legally) a perfect defense. Even vigilantes and Rambo wannabes have a legal right to defend themselves. If the prosecutor concedes that Kyle Rittenhouse acted in self-defense, then he will effectively concede defeat.
I expect that, instead, the prosecutor will attack Kyle’s “mantle of innocence”. You see, (legally) a person who is engaging in criminal activity losses his right to self-defense. This is why a burglar, who breaks into someone’s home and then ends up shooting the armed homeowner to death, cannot claim self-defense. He will be found guilty of murder because his criminal activity destroyed his “mantle of innocence” in the eyes of the law.
I expect that the prosecutor will argue that Kyle Rittenhouse was guilty of some pre-existing crime. Perhaps assault and weapons violations. The prosecutor will try to paint Kyle Rittenhouse as a “Criminal” in addition to being a vigilante. He will then argue that his criminal acts have destroyed his “mantle of innocence” thereby removing his right to self-defense. If the prosecutor can sell this concept, then the jury can (legally) reject any claim of self-defense.
If the claim to self-defense is (thus) nullified, then the video footage clearly establishes that Kyle Rittenhouse did engage in the alleged shootings and the killings. Ergo, he is guilt of murder, assault and battery, and attempted murder and to prison he will be sent (forthwith) for a long, long, long term of imprisonment. Kyle could well find himself singing the lyrics of the old Johnny Cash song: “I turned 21 in prison doing life without parole”.
Kyle Rittenhouse will have to show not only that he pulled the trigger in self-defense but also establish that his efforts to break off the fight and repeatedly retreat acted to preserve his “Mantle of Innocence”.
The Defense Team needs to be prepared to education the jury about how innocence works, under the law, as well as education them about firearms, the dynamics of self-defense and the elements of self-defense As I noted above, they won’t be able to just throw “self-defense” on the table and then sit back and relax. They must be constantly on the warpath to counter and defeat the efforts of the prosecution (and the media) to paint Kyle Rittenhouse as a criminal monster who does not legally deserve any claim to the right of self-defense.
Gerry Spence was quite the lawyer and a fascinating, colorful character. I miss seeing him–often wearing that iconic leather jacket–providing insightful commentary on high-profile trials.
Its enjoyable to watch Spence go up against Vincent Bugliosi in the mock trial of Lee Oswald. Spence kicked his butt, but the system doesnt bend when they have all the cards. https://youtu.be/vj6LtCEeSro The Trial of Lee H. Oswald
Mr. Spence needs a coonskin cap to compliment his trademark buckskin jacket. A flintlock rifle would add to his image, but unfortunately he couldn’t carry that into a courtroom.
Cole’s description of the actions on both sides is almost unbelievable in one sense, but unfortunately too believable in another. It points out the best reason to avoid ever having to face that situation. Thanks for publishing the link.
I read over the “Teaching Tool” write-up (linked above). This does look like an interesting case although it is really not the usual self-defense case arising, as it did, from a longstanding “feud” between the folks involved.
I purchased and download the Kindle version of “The Smoking Gun” from Amazon. I look forward to reading the whole story about this case.
Even the class notes show that Mr. Spence is an attorney of rare determination. Judging from these notes, the original feud ultimately gave rise to just as bitter of a feud between the Defense and the Prosecution!
Still, I suppose that it is better to fight out such feuds in court, with words and written motions, then to fight it out with guns like the Hatfields and McCoys! 🙂
Unfortunately, it was the failure of local law-enforcement to control the initial feud that ultimately caused the situation to deteriorate to the point where the guns came out and a man was killed. Only then did the law step in with a vengeance! However, doubling-down, after the fact, does not cure things nor does it absolve the initial failures.
Hello, Mas.
Feel free to reject this comment if you are uncomfortable or concerned about being ‘canceled’.
The reason courtrooms have metal detectors is to assure that the fight won’t be fair.
Consider prosecutors can negotiate with the threat and possibility of conviction by jury with sentencing exponentially more than a plea deal. Pepper in that prosecutors can muscle witnesses to turn on the accused.
It’s a system. But don’t expect justice in all circumstances.
Comments are closed.