Gerry Spence on America Menaced by Impending Police State

10 Dec

[Prefatory Note: I am posting some reflections on Gerry Spence’s Police State, an ominous book, finely wrought, that we should all read. Besides being my close friend, Gerry is a lawyer par excellence, as well as being someone possessed of deeply artistic, humanistic, and ethical disposition. The book pertains to the situation here in America, but as recent events in Paris, San Bernidino, and Colorado Springs confirm, we are in danger of moving without realizing it toward some kind of ‘global police state,’ all in the name of security, trampling on the rights and self-esteem of billions of people and extinguishing the freedom of all. Such a devastating scenario cannot be separated from the predatory features of global capitalism in its present neoliberal phase.]

 

 

America Menaced: An Impending Police State

 

Gerry Spence, Police State: How America’s Cops Get Away with Murder (New York: St. Martin’s Press, 2015) $27.99 (hardcover)(Amazon $19.43; Kindle $14.99)

 

In an America gripped by one story after another of culpable police violence, it is hard to imagine a more timely book than Police State. Not only is the topic of urgent relevance, the author is supremely qualified by a long life of experience and reflection to give us an authoritative bird’s eye view. Gerry Spence, a trial lawyer par excellence, with the extraordinary credential of never having lost a criminal case, which is some achievement, considering that he has been practicing law for well over half a century. Here on the West Coast, splitting his residence between native Wyoming and California, Spence is as close to being a celebrity as a lawyer can get. He was a nightly TV commentator of the notorious O.J. Simpson trial and has been the lead lawyer in a whole series of high profile criminal cases whose vivid style of oratory creates unforgettable impressions on the part of those lucky enough to have Spence on their side or those so unfortunate as to have him as their adversary.

 

Somehow, Spence also somehow finds time to write novels, publish books of superb photographs, compose poems, and even paint pictures and photomontages that no art gallery would be ashamed to display. Additionally, he founded a Trial Lawyers College in Wyoming that has over the years trained hundreds of criminal defense lawyers to become more effective in judicial settings, not primarily by knowing the law better, but by learning how to win the battle of hearts and minds of juries and judges. It is Spence’s strong conviction that gaining the psychological edge in judicial cases decides many more cases than what is learned in even the best law schools. In short, Spence is a remarkable polymath who both defies the imperative of specialization that haunts our age and dispenses wisdom in a manner that only a modern folk hero from Wyoming can do. And this is not all. Spence’s personality (and ego) overflows any container, whether it be geographic borders or the walls of a courtroom.

 

Such a vivid and fascinating presence creates a temptation to talk endlessly about this exceptional man rather than the compelling story he is telling in Police State. While struggling to resist the temptation, I should disclose that Gerry Spence is a cherished friend, we share intimacies over lunch whenever we both happen to be in Santa Barbara at the same time, which unhappily for me is not often enough. We agree on most core issues, and fight about how to interpret the trivial ones, which is I think which is what always allows deep friendship to flourish.

 

Now to the book. It consists of detailed and engagingly described narratives of eight cases, several of national prominence, in which Spence served as the lead lawyer of a high powered defense team. The cases are framed by a more general introductory discussion of the national setting that produces abuses of power by the apparatus of state law enforcement, and especially the police. Particular attention is given to the injustices experienced by those marginalized by the color of their skin, heretical life style and beliefs, and lowly class standing. So great are his persuasive skills that he credibly casts Imelda Marcos, the notorious widow of the Filipino autocrat Fernando Marcos, among those whose innocence has been violated by spurious criminal charges of stealing public funds. I have to admit that reading the Marcos chapter made me aware that brilliant lawyering can sometimes come at the expense of criminal justice! Every defendant deserves a competent legal defense, yet not one that successfully whitewashes the fully documented cruel criminal record of the Marcos years of shared rulership in the Philippines, a record exposed in a museum in Manila that I have visited. A more general question is raised. Spence makes clear that a gifted trial lawyer can make the difference between winning and losing a case, but does that seems to mean that the guilty as well as the innocent get the benefits.

 

Actually, the Marcos case is an outlier in the book, and its removal would hardly be noticed. Spence’s preoccupation and primary knowledge is associated with how those accused of crime in this country are treated by the police, in courtrooms, and prisons, and it is these various facets of their (mis)treatment that is the subject-matter of the other seven cases. What gives coherence to these widely disparate attempts to counteract the worst features of the system is Spence’s double vision: on the one side, he exposes the deep roots of injustice by way of police and governmental action and on the other, he depicts the capacity of determined and capable lawyering to overcome the biases of the system by rendering verdicts responsive to the dictates of justice. After all, Spence won all these cases, and so something must be working right.

 

In truly authoritarian states, the outcomes are known before the trial begins, contains no surprises, and accords with the wishes of the government as made known through the tenor and content of the prosecution. In effect, in true police states the quality of the criminal defense is irrelevant, which it is not, at least not yet, in the United States. This raises a question as to whether Spence’s characterization of the U.S. as a police state is hyperbolic, and if so, whether this is useful in alerting Americans to a mounting danger.

 

Although written pre-Trump what Spence has to say about crime, law, and justice in America is deeply troubling, yet in the end he proposes recognizing the challenge, a program of reform, and hope for the future. His indictment of present trends is deep, and resonates with recent disclosures confirming racially motivated police killings, and their cover up, in several American cities: “The police belong to a culture separate from ours. Police departments are often like the gangs they encounter—both strive to keep their crimes secret.” (9) More ominous is the link noted between what the police do and what the state wants done: “What I will show is that police brutality and killings are the product of the system, the specter of an enslaving police state is clearly visible on the horizon.” (9) In the end, Spence challenges us as citizens to act to avoid this destiny: “This dismal prophesy will prevail, as indeed it always has, and always will, unless we, the people have the courage to take up this critical challenge and bring about a new police culture for the safety and well-being of we, the people who still wait patiently to enjoy the promise of America.” (10)

 

Spence connects police brutality and contrived prosecutions with what he calls “the rotten underbelly of Power.” (63) By capitalizing ‘power’ Spence is expressing his conviction that what is responsible for police behavior should be traced to those in control of governmental institutions who act in connivance with those who control money. After encountering this pattern in many of his cases, Spence believes that “the Constitution can be set aside by Power at its whim, that the FBI could, and did, change the law as if it, not the people, created the laws of the land.” In this spirit, he asks, “Should we provide a name for such Power? Are we on the outer edges of the cliff looking down into the depths of a totalitarian state from which there is no return.” (63) At another point in the book Spence poses some underlying rhetorical questions: “Are we capable of distinguishing between our fantasy, our hope, yes, our faith that we are free on the one hand, from the alarming approach of a police state on the other? And if we discover the truth, can we bear it? Will we confront it?” (238) As a Jeffersonian populist, Spence unabashedly situates his hopes for change on the unpredictable energies of ‘the people,’ exhibiting no trust whatsoever in either government or political parties as both are presumably presently disabled by being rendered deferential to the whims and priorities of that mysterious force, the Power.’

Most of Spence’s cases do not focus on race as the explanation for or atmosphere of police abuse, but his defense of Dennis Williams who spent 17 agonizing years on death row after being framed by Cook County police in Illinois involved a mixture of racist abuse and institutional corruption of the worst sort. Spence exhibits his keen awareness that racism compounds the problems, infecting our attitudes and behavior as if a poison we didn’t realize was circulating in the body politics. As Spence puts it, “I know that racism is alive and throbbing beneath the surface throughout America…Our personal racism is never acknowledged, not even to our closest friends, not to our spouses, not even to ourselves.” (237) This is the message conveyed by the recently formed Black Lives Matter, and also articulated with subtlety and passion in the best-selling book, Between The World and Me by Ta-Nehisi Coates, and in the compelling poetic rendering of Claudia Rankine in Citizen: An American Lyric.

 

At the end, Spence argues that whether it is framing a witness, coercing a confession, shooting defenseless and innocent persons, there is a depraved unity of purpose being displayed. The separate stories “are essentially the same story: a story about the same perverse incentive of Power—the uncontrolled psychotic urge to dominate and intimidate the helpless in response to Power’s compulsion to serve itself.” (309) Even more darkly, “Power has one purpose: to satisfy itself. In doing so Power kills, wrongfully persecutes, and criminally imposes itself on the innocent. (311) We all know the devil lives in the details, and so it is important to read through these cases to grasp the specifics that lends credence to this dire assessment.

 

And yet, Spence is far from one-dimensional even if we limit our concern to law and the American political scene. His hopeful side, although not easily escaping from the dark shadows cast by his overwhelmingly disconcerting experience over the decades, is not as revolutionary as one would expect given his diagnosis of where we are and where we are heading. After the narratives of the cases, Spence offers a sensible 12-step program for law enforcement reform (an odd and suggestive echo of the famous AA formula for overcoming alcohol addiction), which if implemented would make police better trained, more accountable, and operating in an atmosphere where prosecutors and judges were more sensitized to the rights of the accused.

 

It is troublesome that this humane and sensible set of recommendations presupposes what is most lacking, that is, a political will among elites that is driven by integrity and a commitment to fairness rather than beholden to what Spence calls ‘the Power,’ money and status. In other words, if the political will were realigned toward criminal justice such a transformed criminal justice system would be spontaneously generated and reforms superfluous, but if the existing established order is being so challenged it will resist vigorously for all the reasons that Spence delineates. Here Spence allows us to drift on our own, not giving us much of a hint as to how to discredit the prevailing political will that he so vigorously deplores.

 

The most we are told is that during Spence’s long lifetime some good things have happened to women and minorities, and thus it is not a fool’s dream to suppose that a similar dynamic will make positive change happen so that those who are currently most abused by police and law enforcement will find themselves better protected. Maybe the furor generated by the Ferguson killing of Michael Brown and several related incidents of police homicide will produce the kind of political energy that will produce the results that Spence advocates and justice demands. Time will tell.

Gerry Spence brings his fine book, with its urgent message, to a fitting close: “One thing I know: An honestly informed nation can be trusted to eventually do right. Justice is the petulant child of truth.” (326)

 

We will have to wait and see, and more actively, do all we can to make these ugly truths known, and counteracted. There is no better place to begin than by reading this compelling book by Gerry Spence that tells us all we need to know if we want to renew our vows of citizenship by action and engagement. As long as we stay quiet in the gated communities of our imaginations, we will regress even further from being citizens of a free society to becoming subjects of a police state.

11 Responses to “Gerry Spence on America Menaced by Impending Police State”

  1. Corinne Whitaker December 10, 2015 at 6:59 pm #

    Brilliant. Thank you for sending.

  2. Gene Schulman December 11, 2015 at 2:15 am #

    Greetings, Richard. An excellent review of your friend Gerry Spence’s book. But it looks like more recent events have overtaken his worries of an impending police state. With all the recent lock downs of cities, shootings for being black or poor, or Muslim, filling up of prisons, etc., it seems that the US is already a police state, and the ideology is now spreading to alleged democratic allies in Europe. France, especially, has succumbed. It is also telling that Israel has been selling its police consulting services to the Western countries. Their expertise is not to be shunned.

    • Richard Falk December 11, 2015 at 7:22 am #

      As usual, Gene, you make a strong case, but at least here there is some
      resistance evident, the first sign of African American militancy since the
      civil rights movement, effort to recall the Emmanuel in Chicago, etc., ad
      the pushback against Trump. At the same time there is a robust proto-fascist base
      that is supporting with growing enthusiasm every Trump outrage.

      • Gene Schulman December 11, 2015 at 9:09 am #

        Richard, African American militancy is not a new phenomenon. It has been prevalent throughout American history. But the anti-Muslim racism is new, and growing. Read this: http://www.counterpunch.org/2015/12/11/the-rise-of-the-american-muslim-totalitarian-state/print/

        It might help if someone would teach Martha Nussbaum’s “The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age” in US school rooms. Or at least send copies of it to idiots like Trump.

      • RS Stubbs December 11, 2015 at 8:07 pm #

        Dear Richard, It has been a long while since we chatted last. It is good to see you are still plugging along.

        I want to let you know what it is like from a disadvantaged view, IMHO. In most cities and even small towns surely you are aware of the municipal water treatment programs and the issues that are associated with pollution. A question you may want to ask your self, ‘Is it easier to cope with a person with or without drug or chemically induced brain damage?’ also, ‘if a person is nutrient deficient or has an illness of some kind what roll does that play in their thought process?’ If there is a reason they are inhibited from thinking clearly it would seem to me like it would be harder to cope for both those with an intent to dissent and those who are attempting to control the dissenters.

        And how many attorneys do you know that will actually stand up knowing that the deck is stacked against their client before they ever get started? How many judges and bureaucrats are bought and paid for in our society today? And how many of these make their crony decisions without any efforts to actually considering all of the actual facts presented before them? Maybe I am wrong in thinking this and possibly you can enlighten me but aren’t the police or sheriff’s and attorneys suppose to be an arm or extension of the court that is supposed to provide justice?

      • Richard Falk December 12, 2015 at 10:15 am #

        You raise important issues that I am not equipped to answer. Surely the way law enforcement
        is operating in this country is not in accord with the precepts of justice with respect to those
        who are disadvantaged in various ways, and thus particularly vulnerable. With greetings, richard

  3. rehmat1 December 11, 2015 at 6:39 pm #

    American Jewish investigative journalist, Max Blumenthal, says that America’s security services have totally been Israelized.

    “The process of Israelification began in the immediate wake of 9/11, when national panic led federal and municipal law enforcement officials to beseech Israeli security honchos for advice and training. America’s Israel lobby exploited the climate of hysteria, providing thousands of top cops with all-expenses paid trips to Israel and stateside training sessions with Israeli military and intelligence officials. By now, police chiefs of major American cities who have not been on junkets to Israel are the exception,” says Blumenthal.

    http://rehmat1.com/2013/06/19/civil-rights-groups-sue-jewish-mayor-and-nypd/

  4. pabmarq December 12, 2015 at 9:34 am #

     Dear Presidential Hopeful Donald Trump,I agree with you “LEADERSHIP” is the key reason America is in the dumps. In my personal case my wife and I being exemplary US citizens from Puerto Rico, have had a 17 year IRS taxation case that has left us impoverished having our home, retirements and savings illegally seized on a concocted audit scheme by IRS Agents in Missouri, State of Missouri and HR Block wanna-bees.  These people that are supposedly “leaders” have no manners, no skills and surely have demonstrated to me stealing from the middle class is their “american dream”. It does not stop with this “pathetic” ignorance by the lower management but the House of Representatives, Congressmen and Senators are just as irresponsible, lacking any family values and seeking the destruction of our Puerto Rican family. You see my wife I and have double Degrees, I am a Veteran, and we are Christians.  We know this is NOT America practice, these crooks and “pathetic” americans will have their day before the LORD.  Its sorrowful that we were told, “you are not qualified, you do not have the skills” while they in the IRS have hired every illegal, uneducated, cannot read and analyze a letter and finally with their criminal minded actions these peoples from around the World, something we cannot understand since we have done ALL the correct things in America, while these people strive in the US?  To do these acts against a family of 6 and having ample time to find these crooks for 17 years demonstrates a wall will not be high enough to resolve this depressing issue.  We are now Seniors and today are POOR still working to pay-pay-pay the IRS, State of Missouri and continue to be harassed by them. We would gladly VOTE for you – and I am a life-long Democrat.Regards,PabloJOIN US WITH THE; IRS CLASS ACTION LAWSUIT, We found another IRS Agent snooping around our home, last week the State of Missouri sent us another bill for 2012taxes when we no longer live there, these people are racist, haters, all needing to go to jail for corruption! We know this is adding more and more duress, stress, emotional distress and financial impoverishment…when the wicked rule; the people mourn…Prov 37,[usurpian government -John Adams]… https://sites.google.com/site/sellswaplease2buyproperty/home    …a government that seizes property without any right. We have fled Missouri seeking legal help so they took our home, retirements and continue their extortion. There are no US Constitutional Rights, Civil Rights, Taxpayers Rights? http://www.petitiononline.com/tax/petition.html American abuse approved by the United States of America! https://sites.google.com/site/intercontinentalco

  5. Laurie Knightly December 16, 2015 at 1:24 pm #

    To Richard and Gene: What you see when evaluating Gerry Spence and Martha Nussbaum varys considerably from my view. After making enough money defending insurance firms, Spence was able to choose enormous fee generating cases on behalf of the ‘little guy’ against the type of megafirms he once defended. Examples – $10,500,000 against Kerr-McGee, $52,000,000 against McDonalds etc etc of which he gets half. The selective little guy biz, plus some big guys, is how he lives in his $35 million log house [besides his other mansion] designed by his aptly named wife, Imaging. His Trial Lawyer’s ‘College’ is a very short course in court room psychodrama that lasts from 2 days to three weeks – occasionally 5 weeks. Justice is dependent on legal representation – and public law, such as legal aid, is poorly funded with heavy caseloads and not appealing to law students. There is very rarely much profit accrued in defending the wrongfully accused authentic ‘little guy’. Nor should it be considered in these terms. Little wonder that Spence fights tort reform.

    Martha gives long dramatic lectures on such subjects as defending the wearing of hijab to niqab – described as cultural preference regarding modesty. If the idea is to look unappealing to men, this is a sartorial breeze. A loose fitting bland colored garment, bit of cloth covering the hair and no makeup, flat serviceable shoes etc will do this effectively. To suggest that the niqab or burka does not symbolize the ultimate cruel subjection of women is to say the same of the KKK outfit to black people – just a modest cultural garment to prevent the objectification of the male body. If some men are driven to an uncontrollable erotic frenzy at the sight of women’s hair, then I suggest we design a special costume for them, maybe include their genital mutilation and prevent any mingling in society unless accompanied by a dominating female oppressor relative. Meanwhile, I suggest you look at a photo of Nussbaum’s costuming as she receives the Inamori Ethics Prize while she accuses our society of making objects of women. No one forced her to have her hair dyed and coiffed, artful makeup, low neckline, mid thigh length bold print dress and high heels – she does this. And Spence wears his good old boy cowboy outfit. Do they fool you?

    If these two people represent an image of ethical society, then perhaps we need a police state. Hypocrisy is a despicable evil and should be exposed where it exists. But people will continue sucking up to celebrity and hope that some type of selfie next to them will boost their own credentials. My preference is for a guy like Steve Wax – long time Federal Public Defender and now with the Innocence Project. This man is my idea of real ethics prosecution – and he’s not imbued with the type of self importance that would preclude a visit to my discussion group albeit sans monetary benefits or fame. No theater – just decency. Steve is an authentic defender of injustice so you probably never heard of him.

    • Gene Schulman December 17, 2015 at 1:51 am #

      Laurie,

      I know nothing about Gerry Spence except what I have read on this blog. So I will withhold comment. As for Martha Nussbaum, I don’t care what she looks like or how she dresses, as long as she can inspire me to think about the subjects of her essays. She has done that with the above mentioned.

      Seems like Laurie got up on the wrong side of the bed this morning. No need for gratuitous putting downs of those you may not care for.

      • Laurie Knightly December 17, 2015 at 6:23 pm #

        Gene,

        Martha writes long essays/lectures on women’s body coverings as objectification. The subject of the blog is Global Justice in the 21st Century. Spence and Nussbaum were cited as prototypes for the subject. Nussbaum states, for instance, that if we ban the burqa, we should ban alcohol because men get drunk and beat up their wives.
        Sorry you can’t see the blank look I get when quoting some of her statements. Same for Spence as the champion of the little guy. They are both brilliant/successful people but I would not want to live in a world limited to their frame of moral reference.

        This subject was a good opportunity to note what people see/think thru different lenses. You sniped at me, however, instead of defending your position. This often contributes to the ruin of blogging comment sections. As to the ‘wrong side of the bed’, my hope for women is that the bed will not be part of evaluating our remarks. Also, Wikipedia has quite a bit about Martha……

        Sorry we don’t live in the same part of the world. I’ve been dabbling with the debating process called Intelligence Squared and it would be a good topic. I see that Richard changed the subject. Are we to blame for this?

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