Judy Clark finds the worst kinds of criminals fascinating. She hungers to understand what makes them tick. Her deep belief that people are not born criminals fuels her calling to defend the worst of the worst. She’s the best know death penalty lawyer in the country. She’s defended the Jahar Tsarnaev the Boston Marathon bomber, Susan Smith, the mother who drowned her toddlers in the back of her car, Ted Kaczynski (the Unabomber), Zacarias Moussaoui (the so-called “twentieth hijacker” in the 9/11 plot), and many others. She spends years studying the life of the defendant, trying to understand what made her client commits such atrocities. She humanize throughout legal proceedings, with the goal of saving their lives.
“Every time Judy takes a new case, it’s a soul-searching process for her,” Clarke’s old friend Elisabeth Semel told me. “Because it’s an enormous responsibility.” On rare occasions when Clarke withdrew or was removed from a defense team, a defendant received the death penalty. But in cases that she tried through the sentencing phase, she had never lost a client to death row.
Clarke may be the best death-penalty lawyer in America. Her efforts helped spare the lives of Ted Kaczynski (the Unabomber), Zacarias Moussaoui (the so-called “twentieth hijacker” in the 9/11 plot), and Jared Loughner (who killed six people and wounded thirteen others, including Representative Gabrielle Giffords, at a Tucson mall).
Tsarnaev was indisputably guilty; the lead prosecutor, William Weinreb, described in his opening statement a video in which Tsarnaev is seen depositing a backpack directly behind an eight-year-old boy on Boylston Street and walking away before it explodes. In January, 2014, Attorney General Eric Holder, who had publicly expressed his personal opposition to the death penalty, announced that the government would seek to execute Tsarnaev, explaining that the scale of the horror had compelled the decision.
In a capital case, a defense attorney seeks to humanize the client to the point that jurors might hesitate to condemn him to death. Clarke has said that her job is to transform the defendant from an unfathomable monster into “one of us.”
“Judy is fascinated by what makes people tick—what drives people to commit these kinds of crimes. People aren’t born evil. She has a very deep and abiding faith in that idea.”
She often cites a legal adage: the first step in losing a death-penalty case is picking a jury. To avoid a trial, Clarke does not shy away from the muscular exertion of leverage. In 2005, she secured a plea deal for Eric Rudolph, who detonated bombs at abortion clinics and at the Atlanta Summer Olympics, after Rudolph promised to disclose the location of an explosive device that he had buried near a residential neighborhood in North Carolina. Soon after joining Tsarnaev’s team, Clarke indicated that her client was prepared to plead guilty in exchange for a sentence of life without parole. Federal officials declined this offer. Clarke then pushed to move the trial out of Boston, arguing that local jurors would have an “overwhelming prejudice” against Tsarnaev. Judge O’Toole disagreed.
She has not given an interview to the mainstream press in twenty years. But, in a 2013 commencement speech at Gonzaga University School of Law, Clarke said that her clients have obliged her to “redefine what a win means.” Victory usually means a life sentence. Even so, Clarke said, she owes a debt of gratitude to her clients, for “the lessons they’ve taught me—about human behavior and human frailty—and the constant reminder that there but for the grace of God go I.”
But Clarke is no nun. Her convictions are rooted in constitutional law, not the Bible, and in the courtroom she is unabashedly gladiatorial. In 1990, she told the Los Angeles Times, “I love the fight.” Though she lacks the flamboyant manner often associated with trial lawyers, she is not above courtroom theatre. In 2003, when she represented Jay Lentz—a former Navy intelligence officer accused of murdering his wife—Clarke summoned to the stand Lentz’s twelve-year-old daughter, Julia, who was four years old at the time of the killing. Julia told the jury that her father meant everything to her. The judge had warned Clarke that Julia was not to address her father, but Clarke defied this directive, asking her if she had anything to tell him. “I love you, Daddy,” she said. The jury spared his life.
“At that time , you could count the number of women criminal-defense lawyers practicing in San Diego County on one hand,” Elisabeth Semel, who met Clarke during this period and now runs the death-penalty clinic at the University of California-Berkeley School of Law, recalls. Semel and Clarke went for ten-mile jogs on weekends. “We needed the camaraderie, because it was a hostile environment,” Semel said, adding that the judicial establishment in San Diego was notably conservative. Clarke worked tirelessly on behalf of undocumented immigrants, drug dealers, and others charged with federal crimes who could not afford a private attorney. She was soon running the office, doubling the number of lawyers and tripling the budget. She asked new hires to sign a “blood letter” committing to work at least sixty hours a week. Clarke routinely put in eighty.
In the Smith trial, Clarke developed many of the techniques that have become hallmarks of her work. She promised jurors that she wouldn’t trivialize what Smith had done or present an “abuse excuse.” Even so, she argued that the jury had an obligation to understand not just Smith’s awful act but her whole life leading up to that moment. Smith’s father, a millworker, had killed himself when she was little. Her mother remarried, and her stepfather molested her. She had twice attempted suicide, and at the lake, Clarke argued, Smith had intended to die with her children; at the last second, a survival instinct propelled her out of the car, at which point it was too late to save the kids.
“I always thought I’d be good at getting drunk and crying on camera for Bravo.”
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The prosecutors presented a devastating case. An ex-boyfriend of Smith’s, the son of a wealthy mill owner, testified that, a week before the killing, he had sent Smith a breakup letter in which he wrote, “There are some things about you that aren’t suited for me, and yes I mean your children.” A diver testified about finding the car, overturned, at the bottom of the lake and spotting “a small hand pressed against the glass.”
The defense summoned one of Smith’s prison guards, who attested to her remorse. “Everyone has a breaking point,” Clarke told the jury. “Susan broke where many of us might bend.” Her star witness was Beverly Russell, Smith’s stepfather. He tearfully confessed to molesting Smith and, addressing her directly, said, “You do not have all the guilt in this tragedy.”
Smith received a life sentence. In a subsequent interview, Clarke suggested that while it is sometimes prudent to move a trial away from where the alleged crime took place, in this instance it helped that Smith was tried by South Carolinians. “She was one of them,” Clarke said. After the case concluded, Clarke paid a Christmas visit to Smith in jail. Mindful of her clients’ isolation, she remembers birthdays and holidays. South Carolina later passed a law barring courts from appointing out-of-state lawyers in capital cases.
Back to Boston:
Clarke sat on Tsarnaev’s left, and Conrad, an animated woman in her fifties, sat on his right, so that the jurors always saw him flanked by women. They whispered and exchanged little jokes with him, and they touched him—a pat on the back, a squeeze of the arm. This was deliberate: like the Pope stooping to embrace a disfigured pilgrim at St. Peter’s, the women were indicating that Tsarnaev was not a leper. Such gestures weren’t aimed only at jurors. A training guide that Clarke helped prepare for defense attorneys in 2006 notes, “In capital cases, appropriate physical contact is frequently the one gesture that can maintain a defendant’s trust.” Under the terms of his confinement, Tsarnaev was not permitted to touch any visitors, even relatives, so the casual contact of his attorneys likely represented his only remaining form of tangible human connection.
By searching for what Tina Hunt called “the key that turns the lock,” a capital-defense attorney operates on the broad assumption that the perpetrators of terrible crimes are also victims themselves—indeed, that only victims of mental illness or awful circumstances could commit such crimes. “Nobody starts out as a killer,” Jonathan Shapiro said. “These folks are damaged goods when they come to us. They’re like a tangled-up piece of cloth. And our job is to try to untangle it, to figure out what made them the way that they are.” Clarke has said that most of her death-penalty clients have endured “unbelievable trauma,” and that “many suffer from severe cognitive-development issues that affect the core of their being.” She often invokes a mantra of capital-defense work: “None of us, not any one of us, wants to be defined by the worst day or the worst hour or the worst moment of our lives.”
You can oppose the death penalty on any number of grounds and still find this assertion curious. If we mustn’t judge someone who kills a child for his willingness to kill a child, isn’t that essentially saying that we should never judge anyone at all? I wondered if this line of reasoning was truly an article of faith for Clarke. Indeed, you might think that spending time with killers would disabuse a lawyer of any illusions about the virtues of humanity. But a dozen of Clarke’s friends and colleagues assured me that she ardently believes in the essential goodness of each client. “She has a well of compassion that just runs a little deeper,” Elisabeth Semel said.
Clarke goes to unusual lengths to establish bonds with her clients. “Many lawyers will go in to meet with the client, and if the client doesn’t want to talk they’ll give up and leave,” Laurie Levenson, a professor at Loyola Law School, said. “If Judy goes and they don’t want to talk, she’ll come back the next day and the day after that.” David Bruck once told the Times that Clarke is a preternatural listener: “Even people who are quite mentally ill can identify someone who is real and who wants to protect them.” When Clarke met with Jared Loughner, who suffers from paranoid schizophrenia, he threw chairs at her, lunged at her, and spat on her. (In court, Clarke and her colleagues downplayed these outbursts, arguing, in effect, that this was just Jared being Jared.) Before the Boston trial, Clarke went to the Caucasus, along with a Russian-speaking colleague, in order to meet Tsarnaev’s parents. This labor of empathy can be consuming. In Bruck’s words, “The client becomes her world.”
Because Clarke’s cases unfold in federal courts across the country, the decision to take on a new client can mean months away from home. With the exception of the Susan Smith case, all Clarke’s capital cases have been federal. Most death-penalty prosecutions occur at the state level, where innocent people have often been condemned to death. In such states as Alabama or Texas, there are not enough capable death-penalty lawyers, and even strong ones cannot secure adequate funds to prepare a case properly. In state cases, a defense counsel is sometimes given an investigation budget of only a thousand dollars; attorneys’ fees can be capped at as little as thirty thousand dollars, even when a case demands more than a thousand hours of lawyering. “People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg once said.
To one way of thinking, a talented attorney who fiercely opposes the death penalty should concentrate on saving defendants who may be innocent. Reuben Camper Cahn said, “For a utilitarian, is there an overconcentration of talent and resources in the federal system? Yes.” People who know Clarke explained her focus on federal cases by citing the severe financial constraints on capital-defense attorneys in the states where most executions take place.
In Boston, Clarke had ample resources, but she was hamstrung by another restriction: official secrecy. The government, citing the ongoing security threat that Tsarnaev might pose by communicating with co-conspirators—or by inspiring impressionable people to follow his example—invoked a protocol, known as Special Administrative Measures, that forbade the defendant from communicating with anyone outside his legal team and his immediate family. Secrecy also enveloped the legal process: many of the voluminous motions and filings made by both the government and the defense were sealed from the public record. Judge O’Toole granted the secrecy and explained his rationale in a series of rulings. But they, too, are secret. Matthew Segal, an attorney with the A.C.L.U. of Massachusetts, told me that the scale of official secrecy in the case was “extremely high” and hard to justify, given that Tsarnaev was “the lone surviving member of a two-person cell.”
Clarke’s portrait of Jahar Tsarnaev was reminiscent, in some ways, of the one she helped construct for Zacarias Moussaoui. In that trial, defense testimony focussed on the dislocation that Moussaoui had faced as a Moroccan in France, and on his tumultuous upbringing; his father, a boxer, was abusive, and ended up in a psychiatric institution. Moussaoui’s sister, Jamilla, testified that he was the “sweetheart of the family.” Jahar Tsarnaev was the sweetheart of his family—a doe-eyed, easygoing child who adored his older brother, made friends easily, and seemed to acculturate to American life more quickly than his relatives did. He did well in school, skipping the fourth grade and becoming captain of his high-school wrestling team. Several tearful teachers took the stand and described him as bright and gentle.
By the time he started college, however, his family was falling apart. His parents separated, and both eventually left the country. Tamerlan, meanwhile, was becoming more radical, walking around Cambridge in the kind of flowing white robe one sees in Saudi Arabia.
Neither the government nor the defense claimed that the brothers were part of a larger conspiracy; rather, in Clarke’s awkward phrasing, Tamerlan “self-radicalized” through the Internet. The question at the heart of the defense was whether Jahar did, too. In college, he spent evenings getting high and playing video games with friends. Photographs exhibit a painfully American banality: cinder-block dorm rooms, big-screen TVs, mammoth boxes of Cheez-Its. Several of Jahar’s friends testified about his kindness. Whereas Tamerlan lectured anyone who would listen about U.S. imperialism and the plight of Muslims abroad, Jahar rarely discussed politics. Some of his close friends didn’t even know that he was Muslim. The prosecution said that he was living a “double life.” But it was hard to imagine, looking at a photograph of him lounging on a top bunk, how he hid a life of religious devotion from his dorm-mates.
The defense argued that Jahar didn’t engineer the terrorist plot. Tamerlan bought the bomb materials, made the bombs, and shot Officer Collier. In Chechen culture, one defense expert testified, an older brother is a dominant personality whom the younger brother must obey. A cognitive scientist testified that teen-aged brains are impulsive, like cars with powerful engines and faulty brakes.
This line of argument echoed the successful defense in a 2002 case that Clarke was not involved in: the prosecution of Lee Malvo, who, at seventeen, had accompanied a deranged father figure, John Allen Muhammad, on a shooting spree around Washington, D.C., which left ten people dead. Muhammad was put to death, but Malvo got a life sentence. Like Malvo, Tsarnaev was young, had no history of violent conduct, and fell under the spell of a charismatic mentor. Malvo, his lawyer maintained, could “no more separate himself from John Muhammad than you could separate from your shadow.” It was a Pied Piper defense, and Clarke was mounting a similar argument. One of Tsarnaev’s teachers, whose husband had been his soccer coach, testified, “He’s very coachable. He would do what the coach said.”
Watching Tsarnaev in court, I sometimes wondered if Clarke was trying to save someone who didn’t want to be saved. Perhaps he still envied Tamerlan’s martyrdom. In death-penalty work, clients often come to desire a swift end. They may be suicidal, or hopeless, or insane; they may have made a considered decision that death by lethal injection would be preferable to a lifetime of solitary confinement. Such clients, known as “volunteers,” present death-penalty lawyers with a dilemma. An attorney’s job is to advocate vigorously for a client’s interests. But there may come a point at which that duty diverges from the imperative to save the client’s life.
Unbeknownst to that juror, and to the public in Boston, Tsarnaev had already expressed remorse for his actions. On June 24th, six weeks after the jury dispersed, Judge O’Toole presided over the formal sentencing of Tsarnaev, and Clarke made a fascinating remark. “There have been comments over time with regard to Mr. Tsarnaev lacking remorse,” she said. “It’s incumbent upon us to let the court know that Mr. Tsarnaev offered to resolve this case without a trial.” Tsarnaev had not simply agreed to plead guilty before the trial, Clarke said; he had written a letter of apology. But it was never shared with the jury, because the government, under the terms of the Special Administrative Measures, had it sealed.
I spoke recently with Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard. “This could have been an immediate plea,” she said. “He was prepared to coöperate with the government. Why go through with it all?” In Gertner’s view, there is “no legal justification” for the secrecy surrounding the proceedings, given that Tsarnaev did not appear to pose an ongoing threat. “The classification was based on a premise that this was an international security issue, which is a little dishonest,” she said. It seemed absurd that prosecutors had suppressed Tsarnaev’s letter of apology on the ground that releasing it could be unsafe. (A spokesperson for the prosecutors declined to comment on why the letter was suppressed.)