"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde

Monday, September 7, 2015

The Worst of the Worst

Dzhokhar Tsarnaev and Judy Clarke
Dzhokhar Tsarnaev and Judy Clarke
Judy Clarke excelled at saving the lives of notorious killers. Then she took the case of Dzhokhar Tsarnaev.

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). “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.

The administration of capital punishment is notoriously prone to error. According to the Death Penalty Information Center, a hundred and fifty-five death-row inmates have been exonerated, and it stands to reason that innocent people still face execution. Clarke does not represent such individuals. Her specialty is what the Supreme Court has called “the worst of the worst”: child rapists, torturers, terrorists, mass murderers, and others who have committed crimes so appalling that even death-penalty opponents might be tempted to make an exception. 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.

Most of Clarke’s success in death-penalty cases has come from negotiating plea deals. 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.

Clarke is driven by an intense philosophical opposition to the death penalty. She once observed that “legalized homicide is not a good idea for a civilized nation.” Her friend David Ruhnke, who has tried more than a dozen capital cases, said, “It’s not often you get to occupy the moral high ground as a criminal-defense lawyer, but I think in death-penalty law we do.”

As the Tsarnaev case began, Clarke told the jury that she would not contest the “who” or the “what” of the case. She would focus on the “why.”

Source: The New Yorker, Patrick Radden Keefe, Sept. 4, 2015

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