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.