‘Gentle Judy’s’ biggest challenge: Defending the accused Boston Marathon bomber

Judy Clarke has saved a rogues’ gallery from death row. Can she do the same for Dzhokhar Tsarnaev?

Judy Clarke, the lawyer representing shooting suspect Jared Lee Loughner, walks out of a federal court building Wednesday, June 29, 2011, in San Diego, Calif.  (Gregory Bull/AP Photo)
Judy Clarke, the lawyer representing shooting suspect Jared Lee Loughner, walks out of a federal court building Wednesday, June 29, 2011, in San Diego, Calif.  (Gregory Bull/AP Photo)

BOSTON — They craned their necks and stared as he made his way into the room. His picture had been all over the media, even on the cover of Rolling Stone, but for 200 prospective jurors gathered in a large assembly room at the federal courthouse earlier this month, it was the first time they’d seen him in the flesh: Dzhokhar Tsarnaev, the accused Boston Marathon bomber.

Taking a seat between his attorneys at a table in the front, the 21-year-old suspect, dressed in khakis and a dark sweater, fidgeted under the microscopic gaze of the potential jury pool before him. They were fixated on the young man widely portrayed as a heartless terrorist who killed with no remorse. Drumming his fingers on his chair, his face aimed toward the ground, Tsarnaev avoided looking at anyone — save for the woman to his left, his attorney Judy Clarke, who suddenly caught his eye and gave him a gentle smile.

Tsarnaev visibly relaxed, returning her smile with a brief one of his own. And for the first time during jury selection, the accused bomber looked out toward the room of Boston-area residents who could be called upon to decide whether he lives or dies for his alleged role in the April 2013 bombings that killed three people and injured nearly 300 more.

As the potential jurors sized up Tsarnaev — many getting their first clear look at his face, which bears the scars of gunshot wounds he sustained before his arrest — Clarke, in turn, studied them, her blue eyes slowly scanning the room, gauging their reaction to her client.

It was vintage Clarke, a subtle gesture aimed at loosening up Tsarnaev in front of deeply suspicious prospective jurors. And it spoke to the veteran public defender’s three decades in the courtroom, where she has been both disparaged and applauded for taking on the cases of notorious killers who have committed inexplicable crimes and somehow saved their lives.

Her client list is a rogues’ gallery of the vilified and condemned: the Unabomber, Ted Kaczynski; Eric Rudolph, who bombed abortion clinics and the 1996 Olympics in Atlanta; and Susan Smith, the South Carolina mother who strapped her two sons in their car seats and allowed her Mazda to roll into a lake in 1994, drowning them. More recently, Clarke defended Jared Loughner, who shot and killed six people during a 2009 assassination attempt on then-Arizona Rep. Gabrielle Giffords.

Members of the legal defense team for Boston Marathon bombing suspect Dzhokhar Tsarnaev, including Miriam Conrad, far left, Timothy Watkins, second from left, William Fick, second from right, and Judy Clarke, far right, return to the federal courthouse after a lunch break in Boston on the first day of jury selection Monday, Jan. 5, 2015, in Tsarnaev's trial. Tsarnaev, 21, is accused of planning and carrying out the twin pressure-cooker bombings that killed three people and wounded more than 260 near the finish line of the race on April 15, 2013. (Elise Amendola/AP Photo)
Members of the legal defense team for Boston Marathon bombing suspect Dzhokhar Tsarnaev, including Miriam Conrad, far left, Timothy Watkins, second from left, William Fick, second from right, and Judy Clarke, far right, return to the federal courthouse after a lunch break in Boston on the first day of jury selection Monday, Jan. 5, 2015, in Tsarnaev's trial. Tsarnaev, 21, is accused of planning and carrying out the twin pressure-cooker bombings that killed three people and wounded more than 260 near the finish line of the race on April 15, 2013. (Elise Amendola/AP Photo)

They were all death penalty cases, and against the longest of odds Clarke found a way to save her clients from execution each time. It is a legal feat unmatched in the annals of death row cases. An avowed opponent of capital punishment, Clarke’s skill is finding the humanity in defendants accused of inhumane crimes and using it not necessarily to win acquittal but to seek a degree of mercy that helps them avoid a death sentence.

“Judy’s gift is that she sees the people she represents as human beings when they are monsters to everyone else,” said David Kaczynski, whose older brother, Ted, is serving a life sentence for crimes he committed as the Unabomber. “She was able to see the humanity in my brother, to find it in spite of the horrible, horrible things he’d done, and it helped to save his life.”

Now Clarke is trying to do the same with Tsarnaev, who faces death for his alleged role in plotting and carrying out the marathon bombings with his older brother, Tamerlan, who was killed during an altercation with police four days after the attacks. Tsarnaev’s defense team is expected to cast its client as a young man from a troubled family who came under the spell of his overbearing older brother.

But that argument has generated little sympathy in Boston, where nearly two years later many in the city are still struggling with the lasting physical and emotional impact of the attacks. Charlie Baker, the newly elected governor of Massachusetts, recently named Tsarnaev as the living person he most despises — a statement Clarke cited in court papers pushing to move the bombing trial out of Boston. She argued her client won’t get a fair jury.

Judge George O’Toole, who is overseeing the proceedings, overruled the request. At the same time, Clarke’s attempts to strike a plea deal with prosecutors that would allow Tsarnaev to plead guilty in exchange for life in prison have gone nowhere. Clarke’s string of death penalty successes is unparalleled — she successfully negotiated pleas for many clients, including Loughner and Kaczynski — but she is now facing the greatest challenge of her career.

But those who have worked with her say that if anyone can save Tsarnaev’s life in the face of what appears to be overwhelming evidence pointing to his guilt, it is Clarke. “So far, he’s just been this face, someone accused of committing a crime, but she will make him a real person, a living, breathing person,” said Quin Denvir, a California defense attorney and former public defender who worked with Clarke on the Unabomber case. But it’s not just Tsarnaev she will humanize. “She’ll bring out the humanity in the jury,” Denvir said. “She’s very good at making people consider their own values and what they believe. Twelve people have to say let’s kill him, and that’s not the easiest thing to do.”

CLICK IMAGE for slideshow: Judy Clarke's famous clients. Top (L to R): Dzhokhar Tsarnaev, Theodore Kaczynski aka 'The Unibomber', Joseph Edward Duncan III, Zacarias Moussaoui, Top (Lto R); Susan Smith, Eric Robert Rudolph, Jared Loughner, Buford O'Neal Furrow Jr.. (Photo combination by Yahoo News, photos by REUTERS (2), Getty images, AP Photo, REUTERS, AP photo (2))
CLICK IMAGE for slideshow: Judy Clarke's famous clients. Top (L to R): Dzhokhar Tsarnaev, Theodore Kaczynski aka 'The Unibomber', Joseph Edward Duncan III, Zacarias Moussaoui, Top (Lto R); Susan Smith, Eric Robert Rudolph, Jared Loughner, Buford O'Neal Furrow Jr.. (Photo combination by Yahoo News, photos by REUTERS (2), Getty images, AP Photo, REUTERS, AP photo (2))

Known as “Gentle Judy” on the legal circuit, Clarke, 62, is a low-key attorney who comes across as more motherly than flamboyant. She wears simple suits and flats in the courtroom, and her face appears to be free of makeup. In the 20 years since she gained prominence as Susan Smith’s attorney, Clarke has worn her brown hair in the same no-fuss pageboy haircut.

Unlike some in her field, Clarke shuns the spotlight, rarely speaking to reporters — including this one. She has given only a handful of interviews — none recently — preferring instead to focus all her energy on her clients.

Clarke was born in Asheville, N.C., one of four kids in an ultra-conservative home. Her father, Harry, who was killed in a plane crash in 1987, was a prominent GOP consultant for companies trying to stave off the unionization of their workers and an adviser to Sen. Jesse Helms. Her mother, Patsy, was a homemaker who occasionally taught drama classes and performed in community theater. Though they often hosted John Birch Society meetings in their living room, Clarke’s parents encouraged their kids to think for themselves, and the family held passionate debates around the dinner table, which Clarke later credited as preparing her for a life as an advocate.

The family motto, Clarke told The Spokesman-Review in 1996, was “Be what you can be, and be the best you can be, whatever it is you pick to be.” By the sixth grade, Clarke had a general idea of her future. Her mother had spent a summer teaching Clarke and her older sister “crocheting and the Constitution.” “For my sister, the crocheting stuck, and for me, the Constitution stuck,” Clarke told the paper. “I wanted to become either the chief justice of the Supreme Court or Perry Mason.”

Clarke went to Furman University in South Carolina, where she met her husband Thomas “Speedy” Rice, an international human rights lawyer. After getting her law degree at the University of South Carolina, she and Rice relocated to the West Coast where she worked as a federal public defender in San Diego and then in Spokane, Wash., before returning to Southern California. But Clarke returned east in 1994 when she was recruited to join Susan Smith’s defense team — the case that first gained her a reputation as the “patron saint of defense attorneys” and a “one-woman dream team,” as USA Today once referred to her.

That same year, Clarke’s younger brother, Mark, died of AIDS at age 31 . Not long after, Helms was quoted in the media saying those who had died of the disease had brought it on themselves. When her mother was upset by the comments, Clarke encouraged her to write to him and stand up for her son and others like him — since the senator had been close to her father. Helms offered his condolences, but the family was infuriated when he told them Mark had played “Russian roulette in his sexual activity.” In 1996, at age 67, Patsy Clarke, with her daughter’s encouragement, launched a high-profile campaign to unseat Helms. She lost but, at the same time, became a prominent AIDS activist.

Judy Clarke (L), Gary Sowards and Quin Denvir (R), attornies for convicted Unabomber Ted Kaczynski, leave the U.S. Courthouse in the Fred E. Moss Federal Building after Kaczynski's sentencing May 4, 1998. Kaczynski was sentenced to life imprisonment without the possibility of parole. (REUTERS)
Judy Clarke (L), Gary Sowards and Quin Denvir (R), attornies for convicted Unabomber Ted Kaczynski, leave the U.S. Courthouse in the Fred E. Moss Federal Building after Kaczynski's sentencing May 4, 1998. Kaczynski was sentenced to life imprisonment without the possibility of parole. (REUTERS)

By then, Clarke was back in the courtroom, tapped to represent Kaczynski, who was hostile to his attorneys almost from the get-go. He was angered by their efforts to craft an insanity defense when he insisted he wasn’t crazy. But Denvir recalled Clarke working tirelessly to earn their client’s trust. She visited him in prison almost daily — more than anyone else on the team — in an effort to understand who he was and what had motivated him to build and send bombs around the country, killing three people and seriously injuring 23 others.

She and Denvir hiked into the remote Montana wilderness to visit the tiny 10x12 wooden shack where Kaczynski had lived without running water or electricity for 20 years and where he’d built his bombs and written the manifesto that ultimately led to his arrest. Later, against the objections of the government, the attorneys trucked the primitive structure to Sacramento, Calif., where the trial was held, in hopes of humanizing Kaczynski by allowing jurors to physically see the strange world he had been living in.

Behind the scenes, Kaczynski continued to battle his attorneys over the question of his mental health. A court-appointed psychologist had diagnosed him as a paranoid schizophrenic, but he rejected it. But even though they disagreed, the bomber had developed a bond with Clarke — which shocked his brother, David, who said his sibling would “shut down” and banish people from his life when challenged. He recalled Clarke, an avid runner, showing him a cartoon his brother had drawn of her jogging through the streets of Sacramento. “He wouldn’t have done that if he didn’t have some bond with her, a level of trust,” David Kaczynski recalled. “It still boggles my mind, given Ted’s history. But their relationship somehow transcended.”

Still, as the trial began, Kaczynski unsuccessfully tried to fire Clarke and his other attorneys over the insanity defense. As he made the request in court, David Kaczynski recalled Clarke placing her hand gently on his brother’s back — offering him support, even though she disagreed. “To me that said volumes about her ability to connect with a client, a difficult client who didn’t understand his own best interest,” he recalled. “She was more than just a very intelligent attorney. She was a human being with a huge heart who was somehow able to integrate that into her work.”

But even for Clarke, Tsarnaev’s case could prove tricky. The Boston bombing case is expected to center less on the evidence portion of the trial and more on the punishment phase. Unlike most trials, where the sentence is up to the judge, the jury will decide Tsarnaev’s punishment. Clarke is known for her meticulous research into the lives of her clients, trying to find something, anything, that could help win mercy from the jury.

Susan Smith is seated between her lawyers during a hearing February 15, 1995 in the Union County Courthouse. David Bruck(L) asked the court to appoint Judy Clarke (R) of Spokane, Washington to assist him in Smith's defense. (REUTERS)
Susan Smith is seated between her lawyers during a hearing February 15, 1995 in the Union County Courthouse. David Bruck(L) asked the court to appoint Judy Clarke (R) of Spokane, Washington to assist him in Smith's defense. (REUTERS)

In many of her other cases, including Kaczynski’s, Clarke was able to rely on help from the family of the accused — whether it was in making public appeals for their relative to be spared from death row or testimony on possible motivating circumstances. In Tsarnaev’s case, it’s unclear how much cooperation his defense team has received from his family, who have been caught up in their own litany of legal troubles.

Last summer, Tsarnaev’s older sister, Ailina, who faces trial in New York this spring on charges she threatened to blow up her boyfriend’s ex-girlfriend, told reporters that her brothers had been “framed.” Tsarnaev’s parents, who moved back to Russia a year before the bombings, have repeatedly expressed similar sentiments.

As jury selection began earlier this month, Anzor Tsarnaev, the defendant’s father, told ABC News they expect their son to die. “The Americans are going to harm my second son the same way they did to my oldest son,” he said in an interview from Dagestan, where he now lives. “We already know what’s going to happen. Everything is in Allah’s hand.”

Tsarnaev does have one advantage. His case is being tried in Massachusetts, where many people are strongly anti-death penalty. As the court began to question potential jurors last week in an attempt to seat the 12 jurors and six alternates from the pool of 1,350 who were brought in for consideration, individuals, one after another, expressed concern about their ability to sentence for death.

Seated next to Tsarnaev, Clarke carefully observed them and took notes, the beginning of what could be a long process aimed at saving the life of someone who has been widely portrayed as a callous killer. There is no higher calling for an attorney, she once said, than to stand up for an individual accused a crime.

In a 2010 interview with an alumni magazine at Washington and Lee University School of Law, where she has worked as a visiting professor, Clarke summed up her motivating philosophy as an attorney. “We stand between the power of the state and the individual and in doing so defend the core values of what makes this country great,” she said. “None of us, including those accused of crime, wants to be defined by the worst moment or the worst day of our lives.”

That presumably includes Tsarnaev.