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When a key teacher admits to racial prejudice when “showing you mine so that you will show me yours”

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In early 1995, I arrived as early as possible to catch for the first time my soon-to-be critical trial teacher Steve Rench speaking at the Baltimore City Public Defender’s Office. He wrote a great manual on preparing cases for trial. He was featured at the National Criminal Defense College, but I missed the session at which he appeared. When Steve walked in front of that room in Baltimore, he looked completely unassuming. Had I passed him on the street, I would not have taken notice of him. Then he opened his mouth, and I was transfixed and mesmerized during his entire talk, as he illustrated how we can all be great trial lawyers, even if we were not born with charisma or dazzle. To boot, I later learned that Steve eats vegetarian, as do I, after an experience with an injured bird.

Steve spoke of the then-new Trial Lawyers College as an amazing place, even with my having already attended the National Criminal Defense College’s Trial Practice Institute the previous summer. He was returning for the entire four weeks of the program. Motivated more by Steve Rench’s recommendation and presence at the TLC than anything else, I took four weeks out of my life to attend there, ten miles from the nearest paved road, living in a simple dormitory setting while spending morning through late afternoon revealing to ourselves and each other who we really are, working on becoming better people as an essential basis of becoming better lawyers, unlearning law school and law firm culture pressures to shed feelings and emotions, and incorporating all of that into jumping quantum levels in being persuasive in court.

The TLC program I attended could have achieved its goals in shorter time — and now the full-length program is fewer days, but includes weekend work, apparently — and could have been better organized with little effort, so that we would not find ourselves cross-examining nursery rhyme characters. The TLC was nevertheless critical for me to further discover and awaken my own strengths as a person and lawyer, to learn from others, and to know that I had been right all along to keep my passions with me for my clients’ causes and for social justice, feeling no longer isolated along that path, and with a nationwide network of other lawyers who were so deeply committed to being better lawyers — and putting clients ahead of money — that they would leave their families and law practices for four weeks on that path.

Taking central stage at the Trial Lawyers College was Gerry Spence, with the college’s full name being Gerry Spence’s Trial Lawyers College. Together, Gerry Spence and Steve Rench for me were a yin-yang powerhouse whose combination was much more powerful than the sum of their parts. Gerry is charismatic and a born persuader who struggled with many painful life experiences — including his mother’s suicide, the breakup of his first marriage, and alcoholism — and has embraced that pain to make him all the stronger. Steve Rench is captivating but not charismatic man, focusing heavily on methodology and preparation on the road to trial victory, and, in his own words, has never suffered substantial pain in his life, so fights for justice out of a sense of the need for fair play. Others may converse, or not, about whether the Trial Lawyers College is a cult — and I have addressed some of the TLC’s cult elements here — but I focus on the good I have derived and continue deriving from the TLC.

Although I have previously blogged that the Trial Lawyers College has forsaken opportunities to be much greater than it is — without needing extra effort nor funding to do so — what I learned there remains priceless. On top of that, I am deeply grateful to the numerous TLC participants who have dropped what they were doing to talk with me about my upcoming trials, and to the numerous TLC attendees and staff from Pennsylvania to Virginia who have ventured to my office on numerous occasions for weekend morning workshops to further prepare me and my clients for trial.

Over the years, I have heaped many words of well-deserved praise upon Steve Rench (who left the TLC by around 1997) and Gerry Spence. And now — whether or not Gerry has cherrypicked his cases in order to have won all his jury trials — Gerry has again risked maintaining his win record by returning to trial, after previously saying that his criminal defense of Geoffrey Feiger was his last trial, by leading the trial team pursuing money damages against the city of Council Bluffs, Iowa, and detectives whom Gerry claims are responsible for the wrongful conviction and years-long imprisonment of his client Terry Harrington, along with co-plaintiff Matthew Wilber, who is represented by a local Iowa law firm. The two plaintiffs already settled for $12 million against the county.

The trial began Halloween 2012. During jury selection, Gerry pursued an “I’ll show you mine if you show me yours” approach to engendering trust from and convincing potential jurors to reveal their racial prejudices (his client is African-American), by saying:

Now, I’ve got another problem, and that is I told you I was born in a little town in Sheridan, Wyoming. I never saw a black man, or a black woman. I didn’t know what black people looked like, and I went to the University of Wyoming where I never saw any black people. I’ve practiced for 60 years in the town of Jackson Hole, and other towns in Wyoming, where we have hardly any black people, and yet I find that I have something that I’m ashamed of. And that is there is something about me that I don’t like, and I don’t want to admit to. But I have a sense of prejudice, a little bit, against black people, and I don’t know why, and I wish I didn’t have it, and it makes me ashamed to admit it to you. I wonder if anybody else has that feeling. I’m all alone? Yes? Let me just say thank you.

The foregoing approach is straight out of page 117 of Gerry’s Win Your Case. I read most of Win Your Case a few years ago, but must have skimmed past what he said therein about his prejudices about African-American people. The statement makes me more than just uncomfortable. TLC staff and attendees include African Americans, which possibly offsets Gerry’s earlier life experiences where it seems the only non-white people he mainly saw were Native Americans. Gerry has long been committed to fighting for ordinary people. If he feels this way about African Americans, how widespread are such feelings by people who are not even committed to fighting for ordinary people? Yet, he has expressed such feelings both in Win Your Case and at trial a few weeks ago.

Gerry knows that if he has such feelings about African Americans, plenty of potential jurors will have similar are harsher feelings than his about African Americans. Unknown to me is the response Gerry got from the potential jurors on this topic. However, he would have gotten no response had Gerry straightforwardly just asked: “Do any of you have any prejudices or biases that would lead you to give less weight to Terry’s testimony or to the value of his life?” It galls me that such jurisdictions as Maryland and most federal courts let potential jurors be picked in such a sterile fashion — with judge-directed jury voir dire rather than lawyer-directed voir dire — that will not elicit honest-enough responses.

Terry Harrington’s case has gone up the Supreme Court, settled with Pottawattamie County before being decided by the court, which originally granted certiorari on the following issue as framed by SCOTUS Blog: “Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s substantive due process rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.”

Here is the Harrington trial docket, showing that the case proceeds to the twelfth day on November 30. A review of the most recent docket entries shows that the plaintiffs are still presenting their case in chief. The trial is in the federal Southern District of Iowa, and is worth catching to experience Gerry Spence and the rest of the trial. If you attend, please let me know.