Judy Clarke: How to Save a Life

Vanity Fair has an excellent new profile of Judy Clarke. My favorite line, and it is not an exaggeration:

Her record defending the indefensible speaks for itself. Among those who want capital punishment abolished in this country, Judy Clarke is the most effective champion in history.

A basic premise:

No person should be defined “by the worst moment, or worst day” of his life.

How she does it: [More...]

She laboriously constructs a complex and sympathetic portrait of the accused, working with a far more varied palette, sketching out the good and the bad, unearthing the forces that drove a killer to the terrible moment, and insisting that judges and juries and prosecutors see the larger picture, weighing not just the crime but the whole person. She seeks not forgiveness but understanding. It takes only a small spark of it to decide against sentencing someone to death.

How she communicates that to jurors: From her closing in the Susan Smith case:

This is not a case about evil. . . . This is a case about despair and sadness.” ....“Her choices were irrational and her decisions were tragic. She made a horrible, horrible decision to be at that lake that night. She made that decision with a confused mind and a heart without hope. . . . [But] confusion is not evil, and hopelessness is not malice.”

Life saved. In a 2013 interview in the ABA Journal,the prosecutor in the Smith case, Tommy Pope, had this to say about Judy:

Tommy Pope, the lead prosecutor in the Smith case and now a South Carolina state legislator, argued passionately in favor of sentencing Smith to death. He says Clarke was able to touch something in jurors. “It started out as Susan the monster and evolved into Susan the victim,” he says. “One of the things she did was humanize the defendant. I anticipate she will do something similar in the Boston case.”

Pope also believes the public perception of Smith began shifting even before the trial. “I think over the course of time, they were able to change the public face of the defendant,” he says. “As her opponent, I respect her. With her, it’s not drama; it’s not theatrics. But there is an intensity.”

In the same article, Ted Kaczynski's brother says:

“She had a real sense of Ted’s humanity. To me that was extremely meaningful and validating,” David Kaczynski says. “I thought, ‘Oh my gosh, she understands my brother as a human being who has significant issues and challenges and mental problems, who’s done something terrible but is still on the level of a human being.’ ”

Two more quotes from the ABA article:

Clarke would probably not want anyone to feel indebted to her. In fact, after the Smith case, she returned the $82,944 fee the state paid her, saying that other indigent defendants could use it more.

....“She is completely genuine,” [defense attorney Laurie] Shanks says. “With Judy, whether she is wearing her little tie or brushing her hair out of her eyes, the reality is that she absolutely, 100 percent believes in her client and what she’s telling the jury — and the jury knows that. She’s respectful of the jury, she’s respectful of the court, she’s respectful of the victim of the crime. And the jury sees that, and that’s why she’s successful.”

Back to the Vanity Fair article: the biggest understatement:

If Clarke is compassionate and kind, she is also defiant and committed. This is no marshmallow.

It remains to be seen if Judy and the team can convince the Tsarnaev jury to spare Jahar's life, but if anyone can do it, she can. All it takes is one juror to vote for life.

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  • Display: Sort:
    The strategy adopted in Clarke's cases (5.00 / 3) (#17)
    by Peter G on Wed Apr 01, 2015 at 12:23:53 PM EST
    enjoys the full, eyes-open participation of the defendant-client, in light of the options and choices that the system present the client with.  The implication of your post that Clarke can control the defense of the case without the informed consent of the client is very much mistaken.

    Do you just want to see Tsarnaev be killed? (none / 0) (#25)
    by Jack E Lope on Fri Apr 03, 2015 at 04:58:40 PM EST
    Or are you suggesting that there is another defense that would get him a lesser sentence?

    life? (none / 0) (#1)
    by Mr Natural on Tue Mar 31, 2015 at 08:05:46 AM EST
    in the Florence ADX?

    Inmates spend their days in 12-by-7-foot cells with thick concrete walls and double sets of sliding metal doors (with solid exteriors, so prisoners can't see one another). A single window, about three feet high but only four inches wide, offers a notched glimpse of sky and little else. Prisoners sleep on concrete slabs topped with thin mattresses. Prisoners in the general population are allotted a maximum of 10 hours of exercise a week outside their cells, alternating between solo trips to an indoor "gym" (a windowless cell with a single chin-up bar) and group visits to the outdoor rec yard (where each prisoner nonetheless remains confined to an individual cage). All meals come through slots in the interior door, as does any face-to-face human interaction (with a guard or psychiatrist, chaplain or imam). The Amnesty report said that ADX prisoners "routinely go days with only a few words spoken to them."

    Stinks... (none / 0) (#5)
    by ScottW714 on Tue Mar 31, 2015 at 03:58:37 PM EST
    ...seems like the only way to get really good representation in court is either being wealthy or committing mass murder.  

    Obviously some people need bigger guns than others, but it does suck that a person who isn't disputing their guilt will get a lawyer most of the wrongly accused could only dream of.

    Yeah, it really "sucks" (none / 0) (#6)
    by sj on Tue Mar 31, 2015 at 04:07:35 PM EST
    that someone who is likely facing the death penalty gets an attorney who will work so hard to save their life.

    I think Scott's point (none / 0) (#7)
    by CST on Tue Mar 31, 2015 at 04:12:34 PM EST
    was that most people facing a death sentence don't get that kind of attorney unless it's extremely high profile (aka mass murder).

    I understand his point, but I also think that those are the cases where the gov't also throws in the kitchen sink.  So it's about balance.


    My Point Was... (none / 0) (#8)
    by ScottW714 on Tue Mar 31, 2015 at 04:50:16 PM EST
    ...that an admitted guilty person is getting an grade A attorney when so many innocent people aren't afforded jack.  

    Had he killed his family, he would be executed and the attorneys so hell bent on saving lives would be no where in sight.  Public Defenders most likely.

    That is what a capital case is.  But take out people with a bomb and you get the best, your life will probably be spared.

    All this while so many innocent people are in prison.  So here are people who didn't do the crime, who in the eyes of the state will be the exact same as the mass murder with the great attorney, both going to die in prison.  

    The difference is one is a mass murder and one is innocent.

    And that sucks.

    I don't want the state to kill the kid, but given a choice, an innocent man IMO gets in line before the admitted mass murderer.

    This isn't about saving lives, it's about prestige and the challenge.  If lives were the end goal, they could save so many more going up against state governments than the Fed.  Texas has executed 75 people since 2010.  The fed, 2 in this century, one of which Jeralyn worked with, and in all likelihood that number will not change over this case.


    Some of the very best lawyers around (5.00 / 2) (#9)
    by Peter G on Tue Mar 31, 2015 at 05:08:26 PM EST
    are public defenders. Including Judy Clarke, who was long employed by the Federal Public Defender system and is now a contractor for them.  In Philadelphia, everyone facing the death penalty who is represented by the Defender Association gets this kind of representation; those represented by private counsel, not necessarily. It's a roll of the dice, sadly. And in Pennsylvania outside of Philadelphia, the odds of getting this kind of representation drop sharply, although the Pennsylvania Association of Criminal Defense Lawyers and the Pennsylvania Public Defender Association both work tirelessly to upgrade the training of all capital-certified defense counsel.

    Colorado's death penalty public defenders (5.00 / 4) (#12)
    by Jeralyn on Wed Apr 01, 2015 at 12:05:09 AM EST
    are also among the best anywhere.

    These lawyers are not seeking fame or fortune. Their work is a calling, not a business or even a profession. They are heroes.


    After Some Thought and Reading the Posts... (none / 0) (#18)
    by ScottW714 on Wed Apr 01, 2015 at 01:08:12 PM EST
    ...I think implication as to why she was doing it was in bad taste and something I should not have written.

    I would not consider it the work of heroes, but it is a noble cause.  I am trying, but it's really hard for me to get past the fact that people in capital cases have done something horrendous, and especially this one when guilt isn't in question.


    It is true that the accused in most capital cases (5.00 / 8) (#20)
    by Peter G on Wed Apr 01, 2015 at 03:05:30 PM EST
    are guilty of (at least) an aggravated instance of first degree murder. And some, of course, whom we cannot identify in advance and often not until much later, turn out not to be (like my former client Nick Yarris). But nearly all of the "guilty" ones are horribly damaged human beings, generally due to things that occurred during their infancy and childhood that most of us can hardly imagine. And none of them deserves to die, particularly not at the hands of the State in our names, and at the conclusion of a process that is inherently unable to rid itself of arbitrariness in many forms (including economic inequality, racism, and human error of all sorts).

    A friend of mine used (5.00 / 1) (#23)
    by caseyOR on Wed Apr 01, 2015 at 04:41:45 PM EST
    to do death penalty mitigation work. She would investigate the accused person's entire life, including visiting everywhere they lived as a child and an adult, talking to everyone- parents, siblings, teachers, ministers, neighbors, teachers, anyone who would talk to her. She would then write a report for the defense team to use during the penalty phase.

    The life stories were so grim. She finally had to take a break from the work.


    i dont totally buy that (none / 0) (#21)
    by nyjets on Wed Apr 01, 2015 at 04:17:46 PM EST
    Some might be 'damaged' but many of the guilty one choose the path they were on. Even many of the damaged one.
    Too often excused are made when the simplest explanation is true, they choose to commit evil acts.

    When you speak of "excuses," (5.00 / 4) (#22)
    by Peter G on Wed Apr 01, 2015 at 04:32:51 PM EST
    it seems to me, you are confusing treating them as not criminally responsible or guilty, which I did not suggest, with it being inappropriate to consider extinguishing their lives by state action, which is what I did say.

    There is lots (5.00 / 1) (#10)
    by sj on Tue Mar 31, 2015 at 07:18:18 PM EST
    to criticize about the justice system. The PD office is usually criminally underfunded, the practice of overcharging to get often innocent people to plead guilty to something, and yes, lots and lots of innocent people underrepresented in so many ways.

    But one reason, I think, some high profile defendants get stellar representation is because a lot of people are paying attention and maybe, just maybe, a few will really consider what the death penalty can mean.

    To me, one of the things that it means is that the State is acting no better than the criminal they are prosecuting.


    obsession with death penalty (none / 0) (#11)
    by thomas rogan on Tue Mar 31, 2015 at 09:03:08 PM EST
    "Clarke brokered a deal sparing Loughner's life in exchange for a guilty plea to 19 counts, including the wounding of then congresswoman Gabrielle Giffords. Loughner is serving life in prison without parole at the United States Medical Center for Federal Prisoners in Springfield, MO."

    Since he spent months in a psychiatric hospital after his arrest, one must wonder whether he could have gone to trial and gotten an insanity plea which would at least give him some hope for release or visits to the outside world sometime in his life a la John Hinkley.  

    he was found to be competent (5.00 / 3) (#13)
    by Jeralyn on Wed Apr 01, 2015 at 01:01:41 AM EST
    after he was forcibly medicated to enable the court to make that call. It was the prosecution who sought the competency determination. He was committed to a BOP medical facility for evaluation. At first he was found to be incompetent to stand trial and diagnosed with schizophrenia. Over strenuous objection, which later became the subject of 9th Circuit appeals court cases, the Court ordered him to be held another four months and forcibly and involuntarily medicated to see if he could be rendered competent. The court then found him competent, and the 9th circuit upheld the use of forced medication and subsequent finding of competency. It's a 117 page opinion. For the details, see my post here.

    Once found competent, had he proceeded to trial to argue insanity, it's highly likely he would have been convicted and sentenced to death. Arizona is a very pro-death district and he not only injured Giffords, but killed a very popular federal judge, among others. And if the feds lost, the state of Arizona was waiting in the wings with death penalty charges for killing and injuring some non-federal employees. It was only after the federal plea deal that the state prosecutor said there would be no state charges at the request of the victims who believed justice had been served.

    He was sentenced to seven life terms in prison plus 140 years. Judy Clarke saved his life, no question. There was no insanity verdict in the cards for him.


    if i recall correctly, (5.00 / 2) (#14)
    by cpinva on Wed Apr 01, 2015 at 06:16:45 AM EST
    "Arizona is a very pro-death district and he not only injured Giffords, but killed a very popular federal judge, among others."

    he also killed a little girl who was, I believe, 6 years old. this guy was less than popular. if they hadn't convicted him and put him away, I seriously doubt he'd have lasted very long on the streets.

    I had, and have, a problem with the courts ordering forced medication, just so a defendant can be made "competent" to stand trial. if he's that mentally out of it, and unable to help his counsel, he's probably less than able to understand right from wrong at the time the crime was committed, which I believe is the common standard for a successful insanity plea.

    I have to question just how "competent" one is, when loaded down with powerful meds, but that apparently doesn't seem to bother judges in those instances where it's done.


    Posts like yours make me feel ... (none / 0) (#16)
    by Mr Natural on Wed Apr 01, 2015 at 10:31:10 AM EST
    well, more liberal.

    My objection to the death penalty isn't the usual one, that it some how makes us more barbaric or less civilized than we already (collectively) are.

    The State has unlimited resources and uses them. It makes the rules.  All the rules.  You've read about some of the worst deck-stacking here and on other legal blogs.  The little guy doesn't stand much of a chance.  The best you can hope for is that the majority of prosecution targets are guilty.

    If Judy Clarke can "stick it to the man," good for her.  It's a shame that the people she saves are such worthless exemplars of humanity, (IMO) but that's all we've got.  

    Government has called in reinforcements (none / 0) (#19)
    by TycheSD on Wed Apr 01, 2015 at 02:43:30 PM EST
    The US Attorney has filed an appearance for Connecticut AUSA Tracy Dayton of Connecticut, apparently to help Carmen Ortiz secure the death penalty for Dzhokhar Tsarnaev.  Dayton was able to get a jury to vote the death penalty in Connecticut federal court for Azubo Aquart, who was convicted of a triple drug-related murder in CT in 2012.  CT repealed the death penalty  in 2012, so getting a jury to vote for the death penalty was significant.