05.01.13 8:45 AM ET
Judy Clarke, the Defense Lawyer Appointed to Defend Dzhokhar Tsarnaev
Her colleagues say Judy Clarke will begin by working her way in the mind of accused bomber Dzhokhar Tsarnaev just as she did with the murderous mom Susan Smith, deranged mass shooter Jared Loughner, al Qaeda fanatic Zacarias Moussaoui, abortion clinic bomber Eric Rudolph, and Unabomber Ted Kaczynski.
The 60-year-old woman, who has been called the most low-profile high-profile lawyer of all time, will pair that insight with her formidable legal knowledge and courtroom mastery in an effort to save him from the executioner, just as she did some of the most reviled killers in recent history.
“In addition to being a brilliant lawyer in terms of knowing the law and persuading a jury, perhaps her most impressive quality is her ability to connect and understand individuals that the rest of the world despises,” says her friend and fellow defense attorney Laurie Shanks. “She is really able not only to gain their trust but to make their actions understandable to others.”
Shanks notes: “It’s easy to look at someone who’s done something really horrible and see a monster. It is very difficult to look at monsters like that and see a human, and Judy is able to do that. You look at Jared Loughner and say, ‘Oh my God, that guy’s crazy,’ look at Susan Smith, ‘How despicable!’ You look at the guy in Boston, ‘How could you kill an 8-year-old?’ To be able to look at them and see their humanity is really a very unusual ability and unique ... not that she condones or expects others to condone their actions.”
In young Tsarnaev’s case, that promises to be in some ways harder and in some easier than in other cases. His actions cannot be as easily ascribed to mental illness as with Loughner, but he was apparently following the lead of his older brother and not acting on his own initiative, as were Rudolph and Kaczynski. Clarke no doubt will note that the victim in the carjacking recalls that when Tamerlan Tsarnaev spoke of the marathon bombing, he spoke in the first person, saying, “I did that.”
Clarke will most likely seek to avoid a trial and negotiate a plea. She has quoted a fellow defense attorney as once advising her, “The first step to losing a capital case is picking a jury.”
In the past she has proved again and again that the first step toward winning a capital case is to bring her in. Her uncommon empathy turns dynamic, her keen awareness of the stakes compelling her to consider every possible aspect. Her intense attention to detail is augmented by a seemingly innate ability to discern details others might overlook and to recognize their significance.
“I would compare her to the great character of Sherlock Holmes, who can locate a seemingly innocuous bit of evidence and instantly knows its value to the case,” Donald Rehkopf Jr., a co-counsel from the Loughner case, has said.
In one of her very rare interviews, Clarke recalled that “from about the sixth or seventh grade, I wanted to become either the chief justice of the Supreme Court or Perry Mason.” She added: “One summer when I was young, my mother wanted to teach my sister and I crocheting and the Constitution. She says that for my sister, the crocheting stuck, and for me, the Constitution stuck.”
Clarke got plenty of chances to argue her opinions at the big table her father, Harry, installed in the family’s kitchen in Asheville, North Carolina.
“Harry Clarke had our kitchen table custom-made so that it would be large enough to accommodate our whole family on a regular and comfortable basis,” her mother, Patsy Clarke, would write. “He wanted it to be the place where he and I, our four children, and my mother and father could gather to be nurtured both physically and intellectually, a place where we feasted on Boston cream pie and the news of the day with equal relish. This round oak table became the hub of our lives.”
Immediately after Dzhokhar's arrest, pundits and politicians debated whether to try him as a criminal or as an enemy combatant.
Harry and Patsy were conservative Republicans who sometimes hosted John Birch Society meetings in their living room and were in favor of impeaching Supreme Court Justice Earl Warren. The father, the head of an employers’ association, campaigned for Sen. Jesse Helms. The mother was the daughter of a Massachusetts movie theater manager who moved the family to Asheville when she was a teen. She had fallen for Harry in college after noticing he asked the smartest questions in psychology class. She loved books and was active in the theater, but she shared her husband’s political views. Judy and her sister, Candy, were encouraged to think for themselves, though it came as something of a jolt when they actually did. “In 1972, our daughters excused themselves from the kitchen table and voted for George McGovern,” the mother would later write. “When I found out, it took me weeks to get over the shock. I never even told Harry.”
Of course it was at the kitchen table that Thomas “Speedy” Rice asked for the parents’ blessing to marry Judy. Patsy went right to the phone to line up a wedding photographer. The newlyweds subsequently settled in San Diego and pursued careers as defense lawyers, he specializing in international law, both with stellar reputations.
“Speedy and Judy,” Shanks says. “They’re quite a pair.”
In 1987, Harry Clarke was killed in a private-plane crash outside the Asheville airport. Helms called Patsy to offer his condolences and sent the family a flag that had been flown in the 60-year-old father’s honor over the Capitol.
Seven years later, the Clarkes’ younger son, Mark, died of AIDS. Helms was reported in the newspapers during this period as suggesting that those who died of the disease had only brought it on themselves for what he considered ungodly behavior.
“Mom, you ought to write to Senator Helms about Mark,” Patsy Clarke quotes Judy as saying. “You ought to stand up for your son and others like him, and for AIDS research. You could make a difference because Senator Helms knew Dad. Dad was his friend. I don’t see how you cannot write to him.”
The mother sat down with a pad and a pen.
“Harry and I had a son, Mark who was almost the image of his father, though much taller,” she wrote to Helms. “He was blessed with great charm and intelligence, and we loved him. He was gay. On March 9, 1994, exactly seven years to the day that his father died, Mark followed him—a victim of AIDS. I sat by his bed, held his dear hand, and sang through that long, last night the baby song that I had sung to all our children, ‘Rock-a-bye and don’t you cry, rock-a-bye little Mark. I’ll buy you a pretty little gold horse to ride all around the pasture.’”
Her letter quoted her son saying near the end: “This disease is not beating me. When I draw my last breath I will have defeated this disease—and I will be free.”
She went on, “My reason for writing to you is not to plead for funds, although I’d like to ask your support for AIDS research; it is not to accept a lifestyle which is abhorrent to you; it is rather to ask you not to pass judgment on other human beings as ‘deserving what they get.’ No one deserves that. AIDS is not a disgrace, it is a TRAGEDY.”
She closed by saying, “I ask you that share his memory with me in compassion.”
Two weeks, later, the mother received a letter in reply. Helms wrote: “I wish he had not played Russian roulette in his sexual activity. I have sympathy for him—and for you. But there is no escaping the reality of what happened.”
The mother would recall crying and agonizing for two or three days.
“Then I got mad.”
Patsy Clarke joined with Eloise Vaughn, another mother whose son had died of AIDS in forming MAJIC, Mothers Against Jesse in Congress. They failed to keep Helms from being reelected in 1997, but it was certainly not from a lack of trying, as is duly recorded in a book they wrote about the effort, Keep Singing; Two Mothers, Two Sons, and Their Fight Against Jesse Helms.
In the midst of all that, Judy Clarke was asked by David Bruck, a former classmate at the University of South Carolina Law School, to join him in representing Susan Smith, who faced the death penalty for drowning her two young children. Clarke began by seeking to comprehend how Smith could have become a mother so unlike the one she herself had known.
During the opening argument, Clarke told the jury of a young woman whose stepfather had molested her into adulthood, whose father had committed suicide, who herself had attempted suicide, and who was crippled by depression and an overwhelming sense of failure. Clarke said Smith initially had intended to kill herself along with her children.
“When we talk about Susan Smith’s life, we are not trying to gain your sympathy,” Clarke told the jurors. “We’re trying to gain your understanding.”
As the case progressed, Clarke summoned moxie such as her brother had demonstrated and smarts such as her father had demonstrated in that long-ago psychology class and determination such as her mother was showing in the campaign against Helms. Clarke proved to be the daughter of a true thespian, refraining from upstaging the central character, from trying to be a star in a tragedy when she was not the one who had so much at stake. She avoided publicity and declined to be interviewed, which made her all the more convincing as one defense attorney whose priority really was her client.
“For many high-profile attorneys, it’s about them,” Shanks says. “With Judy it’s never about her. It’s always about the client.”
Smith was spared execution and sentenced to life. The South Carolina Legislature passed a law barring out-of-state public defenders from future death penalty cases. Clarke responded by giving back $82,944 that the state had paid her for the case, asking it be put toward the defense in cases involving those unable to hire a lawyer.
She proved equally effective in case after case, approaching each with the assumption that however monstrous their crimes, her clients at least began life as deserving as her or her siblings or anybody else of having a mother sing them a lullaby about riding a little gold horse. Some of her colleagues took to calling her “the patron saint of defense attorneys.” She often looked more like the most senior of junior associates, with a pageboy haircut and simple suits. Her few comments to the press included a succinct summary of her views on capital punishment.
“I just think a civilized society shouldn’t legalize homicide.”
She also explained why she named her giant schnauzer after Abe Fortas, who before becoming a Supreme Court justice had been the lead lawyer in the 1963 case establishing that defendants who could not afford to hire a lawyer must be provided one.
“It’s the case that gave me my job,” she was quoted as saying.
In 2005, Clarke helped Eric Rudolph avoid the death penalty.
The victims who spoke at the formal sentencing included Emily Lyons, who noted that one of his bombs had torn out her left eye, damaged the right, shattered her legs, and ripped a hole in her abdomen, resulting in the loss of some of her intestines. She then told the man who had done this to her that he should not imagine he had escaped punishment.
“This was a suicide bombing,” she said. “You still have a pulse, but you are dead. Your life was over when you made the decision to murder. Your pulse will finally stop when you’re in prison. Though the cause of death will not be execution, you will die in prison nonetheless.”
After Dzhokhar Tsarnaev was charged with a capital crime, the federal public defender’s office in Boston asked the court to appoint Clarke to the defense team as the “learned counsel” often provided in such cases. It also requested Bruck, the attorney who had brought Clarke into the Smith case nearly two decades ago.
The court agreed to appoint Clarke but declined to bring in Bruck until Tsarnaev is indicted. Tsarnaev almost certainly will be, at which time the team of Clarke and Bruck will be reunited to defend a young man who was only a year old when Smith was tried.
Clarke remains a most literal champion of the underdog; her present pet reportedly is a deaf and blind pug named Jack.