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COLUMN ONE : Champion of the Legal Lost Cause : Gerry Spence made his reputation taking on 'unwinnable' cases. Defending Imelda Marcos may be his biggest gamble yet.


NEW YORK — For a moment, the heavy spring snowfall obscured the views of skyscrapers beyond his apartment window, reminding Gerry Spence of home. Wyoming. The ranch. The natural habitat of a lawyer who wears a 10-gallon Stetson to court.

But there was no sign of a Grand Teton forest outside this glass. Not here, five floors above East 47th Street.

"Look at that." He pointed down at the street, into the shadows of the urban towers toward a small concrete plaza. It was a single budding tree. He pondered the hint of green on the city's otherwise gray, wet landscape.

"I think that's the first tree I've seen in this town."

Gerry Spence, 61, the cowboy lawyer who's here to defend exiled Philippine first lady Imelda Marcos against federal fraud and racketeering charges, is finding out just how far away he is from Jackson and the sanctuary of Wyoming cottonwoods.

He was never farther from home than during last week's opening round of his first trial in New York. Foul weather and angry insults greeted his arrival with Mrs. Marcos at the steps to the federal courthouse. Nor did his homespun, country style hold up well inside, in a courtroom with more pinstripe than buckskin.

Spence clashed with the judge, suffered damaging surprises at the hands of a skilled prosecution team and stumbled so badly once during his opening statements that he appeared to insult, of all people, the jury.

It was, he conceded, "the worst opening" of his long and storied career.

A three-month case, or longer, as this is almost certain to be, leaves plenty of time to recover--"to dig out of this damn deep hole."

But Spence's biggest obstacles aren't likely to be his early blunders so much as the massive documentary evidence that supports the government's criminal charges, the hundreds of thousands of pages of bank records, telexes, receipts, memos, contracts and reports that federal prosecutors say tell a story of thievery "on an incredible scale."

Another substantial dilemma is the specter of Ferdinand E. Marcos. Some of the government's strongest evidence implicates the dead dictator, making the safest defense for his widow the "ignorant wife defense." But Mrs. Marcos, still dressed in mourning black, won't have her lawyer shifting blame on her late husband.

"This is a woman who believes her husband was totally innocent of the charges that were made here," Spence told the crowded court last week, in a dramatic preamble to his ill-fated opening statement.

Outside, a rainstorm raged, and a loud wind howled through partially opened windows. Spence raised his baritone volume above the eerie din: "He's dead. His lips have been sealed by death. He can't defend himself."

Then, stepping beside the tearful Mrs. Marcos, he spoke for her as he proclaimed: "You can do what you wish with me, but . . . you cannot do this to that great man, she says, and I want you to defend him--and so we will."

Unique Arguments

But brave rhetoric masks a troubled case. Faced with often overwhelming factual evidence, Spence is left making some rather novel defense arguments concerning intent and motivation. For example:

--About allegations the Marcoses looted the Philippine treasury by transferring public funds to secret bank accounts around the world and making hidden investments in New York real estate: Spence told jurors the money was actually being invested overseas as a contingency fund to finance a return to power if the Philippines fell to communist insurgents. He said creation of what was "loosely referred to as a communist takeover fund" was all done with the knowledge and encouragement of the CIA and then-Vice President George Bush.

--About allegations of bribes and kickbacks: Spence told the jury that what looks like a kickback in America was, in the Philippines, actually a sort of "tax" or user fee that President Marcos extracted from "those industries that would most benefit from the communists not taking over the country. . . . Large corporations. He made them pay."

--About allegations that the Marcoses defrauded their country and then exported the fruits of that fraud to New York and California: Spence told jurors the Marcoses could not have broken the laws of the Philippines since Marcos wrote those laws. After declaring martial law in 1972, Marcos ruled by decree. "What he was doing in the Philippines was done in accordance with his law since he was the law."

--About allegations that Imelda Marcos used the national treasury to finance shopping sprees for jewelry, art and shoes: Spence said the image of "this obscene, ugly spender, this greedy person who couldn't be satisfied with a few pairs of shoes," is the fiction of vicious media. He told jurors that much of her spending was to acquire gifts for foreign dignitaries and souvenirs to take home to thousands of local officials in the Philippines. And most of the shoes, gifts from shoemakers, "weren't her size."

Defending Lost Causes

The hallmark of Gerry Spence's legal career has been the lost cause, the unwinnable case.

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