Defense attorney Frank Gimbel did not want to question his client John Spooner in court recently, but was forced to when the 76-year-old insisted upon taking the stand.
Gimbel, a partner at Gimbel, Reilly, Guerin & Brown LLC, had advised Spooner not to testify during his weeklong trial for shooting and killing 13-year-old Darius Simmons in May 2012.
But Spooner, who pleaded not guilty by reason of mental illness, rejected the advice and during testimony came off as an angry man who showed little remorse for murdering a teen. To the surprise of few, the jury rejected the mental illness defense and Spooner was convicted of first-degree intentional homicide.
Judge Jeffrey Wagner on Monday afternoon sentenced Spooner to life in prison.
Gimbel’s situation is not an uncommon one, several attorneys said, but one that rarely benefits a case. When a client insists upon testifying against attorney advice, there is little to do other than let the client talk.
“It’s very challenging,” said Theodore Molinari, an attorney with Birdsall Law Offices SC. “There’s not much you can do. If your client is intent on testifying … you just have to sit by and pray.”
Gimbel said he made it very clear – both in open court and to his client – that he didn’t want Spooner to testify. He said the evidence – which included surveillance footage of Spooner shooting the teen – meant there was little for his client to explain.
But when Spooner insisted on testifying, Gimbel said he had to try to take what his client said and use it as fodder for the mental-illness defense.
“You have to use common sense and say ‘wow this is not behavior of a person who has understanding of what’s going on in his life in how it relates to this,’” Gimbel said. “It didn’t sell, but that was the best road I could take.”
During questioning Thursday by prosecutor Mark Williams, Spooner said he felt “not that bad” about killing the teen and that he would call his actions “justice.”
It then took the jury less than 30 minutes Friday to decide Spooner knew exactly what he was doing when he killed Simmons, and they convicted him of first-degree intentional homicide.
Molinari, who has practiced law for eight years, said he has “had a lot of people torpedo their own case” by taking the stand.
He said one client, Demetrius Boyd, first testified at his preliminary hearing and then chose to testify again during trial. In his trial testimony, Boyd gave a completely different account of what happened, which gave the prosecutor a chance to impeach him.
“The story became more implausible. It went from bad to worse during trial,” Molinari said. “He felt like he could talk to the jury and make him believe what he was saying.”
Boyd, 32, is now serving a 43-year prison sentence after being convicted of multiple counts of armed robbery, bail jumping and other felony charges.
Client testimony isn’t always bad, however, said Cecelia Klingele, an assistant professor of law at the University of Wisconsin. It can allow a jury to make an “assessment of witness’ credibility and other personal characteristics,” she said, which can be good or bad, depending on the particular defendant.
And, ultimately, the client’s decision to testify is out of the attorney’s hands, she said.
“It’s the client who has to suffer consequences so it’s the client who has to make the decision,” Klingele said.
That lack of control can make it worth withdrawing from certain cases, said Anthony Cotton, a Waukesha defense attorney and partner at Kuchler & Cotton SC.
“When the client starts to develop an acrimonious relationship with a lawyer, ethical rules would justify a withdrawal,” Cotton said. “That’s why you do it, to protect the client, and not for any other reason.
“By moving to withdraw, you’re protecting that person’s interests.”
In the Spooner case, Cotton said he “would have done everything in my power to withdraw.”
He said once a client is on the stand, there is “not a whole lot” an attorney can do to minimize damage.
Molinari had a similar opinion, and added that improper statements should be pointed out by prosecutors, even if the witness talks on a tangent.
“It’s the prosecutor’s job to object to questions that were irrelevant,” Molinari said. “If the defendant is going to pontificate on their opinion on the case, the prosecutor is going to let him go, [and they are going to] sink their own case.”
Gimbel said withdrawal was not an option for him, however.
“I don’t think you should abandon the client because he doesn’t agree with you,” Gimbel said.
He said he doesn’t regret taking Spooner’s case. The more difficult the case, Gimbel said, “the more it calls on your creativity and your perseverance.”
The Associated Press also contributed to this report.