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Judy Clarke: Congratulations on a Job Well Done Representing Jared Loughner

8:55 am in Uncategorized by Masoninblue

Cross posted from Frederick Leatherman Law Blog

A mugshot

Jared Lee Loughner

I write today to honor Judy Clarke, whom I know personally and professionally. In my opinion, she is the best and most effective death penalty lawyer in this country. In no small measure, Jared Loughner, Ted Kaczynski and Susan Smith owe their lives to her.

You know about Jared Loughner. With malice in mind and armed with a gun, he showed up at a meet-and-greet event conducted by Congresswoman Gabrielle Giffords in a parking lot outside a supermarket in Tucson. He attempted to kill her by shooting her at point blank range in the head. She survived but six others, including a child, did not. Eleven others were wounded. Jared Loughner will not be executed for his horrific crimes. Instead, he will spend the rest of his life in prison.

Ted Kaczynski is better known as the Unabomber. He engaged in a nation-wide bombing campaign against modern technology between 1978 and 1995 by planting or mailing numerous home-made bombs, killing three people and injuring 23 others. He will not be executed for his crimes. Instead, he will spend the rest of his life in prison.

Susan Smith killed her two young boys by trapping them in her vehicle and driving it into a lake drowning them. She told the police that an African-American man stole her car with the two boys in it and she made a plea on national television for the return of her children. She later confessed to killing them and was convicted by a jury on July 22, 1995 for murdering them. Instead of sentencing her to death, a South Carolina jury spared her life and she will be eligible for parole on November 4, 2024.

Judy Clarke is almost invisible. She never seeks publicity and never attempts to try her cases in the court of public opinion. She treats her clients with the utmost respect and works quietly and diligently behind the scenes to gain their trust. She humanizes them to others. Perhaps better than any lawyer I know, she understands the First Commandment of Criminal Defense:

Thou canst not create a silk purse out of a sow’s ear, no matter how good you are. Some cases are dead-bang losers and you must be able to identify and dispose of them, if at all possible, without going to trial. That usually involves a plea bargain and a guilty plea.

She never shies away from a trial, however, and is very effective in trial, as the Susan Smith case proves. But she does not try loser cases, unless there is no alternative. The results speak for themselves.

Judy always gives credit to those who work with and assist her, realizing that she could not do what she does without their help.

I know how good you are, Judy.

Congratulations on your successful efforts to save Jared’s life.

Photo by the United States Marshals.

Mitigation Investigation And Jury Sentencing In Death Penalty Cases

8:52 am in Uncategorized by Masoninblue

Magnifying Glass For Details (photo: auntiep, flickr)

Magnifying Glass For Details (photo: auntiep, flickr)

Ahem, and now back to our regularly scheduled program. That would be the law, in case you are keeping score. This article should be read in conjunction with my earlier article, Does A Seven-Year-Wait-Behind-Bars Violate The Sixth-Amendment Right To A Speedy Trial?

I practiced law in the State of Washington where a judge imposes the sentence in all criminal cases, except death penalty cases. In most cases, the sentencing occurs approximately 6 weeks after the defendant pleads guilty or is found guilty by a jury. During the 6-week period, the Probation Office prepares a presentence report for the sentencing judge and the defense prepares for the sentencing by conducting a mini-mitigation investigation and arranging to have a defense expert evaluate the client, if there is a possible mental illness or impaired functioning issue due to an underlying alcohol, drug, or sexual deviance problem.

Federal court works the same way.

Death penalty cases are different because the jury that heard the evidence and convicted the defendant also sentences the defendant. Jury sentencing, in other words.

In death penalty cases, the courts proceed to sentencing within a day or two after receiving the guilty verdict, rather than recess the trial for six weeks pending the sentencing hearing. Therefore, the mitigation investigation must take place before the trial starts, which is putting the cart before the horse since a mitigation investigation must necessarily proceed from the assumption that the client is guilty.

Picture this: Very few people can afford to retain counsel in a death penalty case. Therefore, almost all death penalty lawyers are private counsel appointed by the court and paid at public expense, or they are public defenders. With few exceptions, clients charged with a death penalty offense figure that a court appointed lawyer or public defender is not a ‘real’ lawyer. Clients typically presume the lawyer is really working for the prosecutor and does not give a damn about them or their case.

Okay, let me now introduce you to Mr. Hyde. He is charged with 5 rape-murders and the prosecution is seeking the death penalty. He claims he is innocent and he is convinced that you are lower than pond-scum, unfit to sleep with the dogs, and you are going to sell him out. Greet him with your brightest smile and explain that you need some information from him to get your mitigation investigator started.

And, for God’s sake, don’t forget to duck. Read the rest of this entry →

Namaste: If Not Now, When? Chapter 2

2:36 pm in Uncategorized by Masoninblue

Chapter 2

Blessed Are The Peacemakers And Those Who Forgive

A person who comments here at the lake using the name Mepeteluma, wrote this comment a few months ago in response to one of my blogs.

A thought. Some years ago my brother in law’s partner was brutally murdered while on a house cleaning job. It turned out the woman who owned the house was a drug dealer and was visited by some “colleagues” who showed up to kill her. Wrong place, wrong time for my brother in law’s partner. When she didn’t respond to his cell calls he went to the house. He was first on the murder scene.

The police made an arrest some time later and he attended the hearings. He told me that the police thought the case was weak and not to be surprised if the guy walked. He told me he sat in the courtroom and watched all the family members of the alleged killer. For days. The guy walked.

I asked him if he favored the death penalty. He said he didn’t care one way or the other, but he said, “if you have a death penalty, then I would add to the law. It would be illegal to kill anyone while their mother is still alive.”

There are extraordinary forgiving people among us. I recall such a man at Gary Ridgway’s sentencing. I and seven other lawyers represented Mr. Ridgway, who is also known as the Green River Killer – the most prolific convicted serial killer in our nation’s history. Gary pled guilty to 48 capital murders in exchange for a life-without-parole sentence. The forgiving man was the father of one of Gary’s victims.

We called him Santa Claus because he had snow-white hair and a matching full beard. He stood, addressed the court, and turned to Mr. Ridgway. I don’t recall his exact words, but he said something close to this.

Mr. Ridgway, I do not hate you. I do not understand why you murdered my daughter and I do not want to know. It took me a long time to stop hating and forgive you, but I did and you no longer rent space in my thoughts and heart. You can no longer hurt me. I feel sorry for you because I know that at some level you cannot hide from the horrors for which you are responsible. I will pray for you tonight. Pray that you wrestle with your demons and find peace. With all my heart and soul, I will pray for God to help you.

Listening to his words, I could not stop my tears from flowing as my mind flooded with memories of his innocent daughter’s face and the disturbing facts of her case that I had reviewed in the police investigation reports. She reminded me of my daughter and I felt shamed because I could not be as forgiving.

People have asked why I chose to be a death-penalty lawyer. Many of us who do this work have no clue why we do, but we do. Most of our clients are guilty of terrible crimes. All of us know that and yet we persevere. Many of us are so broken that we cannot do anything else. I was called to save something worth saving, I suppose. Something that reminds me of myself. There, but for the grace of God and all that shit. As a modern day warrior committed to peace and non-violence in troubled times, I am as a moth driven to flame. I cannot resist the call to save a life, no matter how seemingly damned, and the challenge of being the only person that stands between my client and the government’s needle that will deliver him to an uncertain, and some would say deserving end. Cheating the executioner. The smell of greasepaint and the roar of the crowd. As the scorpion said to the frog, “It’s in my nature.” Let me be as Shiva with the blue throat who drinks transmuting the poison of the world.

As one who saw himself as a superman and lived that life with an ego to match, I now know that one of the things we must do is end the cult of the individual superman. No one is coming to save us. We must save ourselves and the others, no matter how cruel and indifferent they may be, by acting together to seek out, honor, nurture, and love the sacred light that illuminates us, for in the end we the whole will always be greater than the sum of our individual parts.

I am convinced that the only way to change our nation’s terrible destiny is to plunge deep within ourselves, embrace our souls, and heal ourselves. When we do that, we will lose our fear and get our priorities straight. We shall become beacons of light, instead of shuttered rooms behind locked doors during the coming violent storms. By example we shall lead and teach the others. The meek shall indeed inherit the Earth, as foretold by the ancient ones.

I believe we cannot begin to fully comprehend who we are until we see and define ourselves holistically. That is, we exist and our lives acquire meaning only in relationship to the living earth, all of its lifeforms, and most immediately to all of humanity. In truth we are one and until we finally acknowledge that fundamental principle and banish the concept of the other from our consciousness, we will continue to exploit, trash, and destroy ourselves, other life forms, and the mythological Garden of Eden in which we live. Our task is to get other people to see this resplendent truth and to spread good will through empathy, practicing the Golden Rule, and celebrating the miracle of consciousness.

Let there be no mistake. Love and forgiveness are the most powerful forces in the universe while vengeance is no better than a mouthful of dust. Any economic theory such as neoliberalism, that fails to acknowledge this fundamental principle, or that sanctions selfishness, greed, or exploitation in any manner for any purpose is obscene and doomed to fail, if for no other reason than the many who have been schooled in the fundamental and enduring principles of life, liberty, and the pursuit of happiness will not long tolerate the tyranny of the few.

Namaste: If Not Now, When?

12:36 pm in Uncategorized by Masoninblue

Chapter 1

My Search For Meaning

I remember battling through a six-week death-penalty trial and feeling crushed when the jury returned a guilty verdict. I followed my chained and handcuffed client and his two burly uniformed escorts to the jail. We sat in a postage-stamp sized room and I tried to say something, but I was crying and I couldn’t speak. He teared up and then he thanked me, laughed, and told me to stop embarrassing him.

The following afternoon after presenting some mitigation evidence, I had to face an angry and stern-looking jury with revenge in mind. I don’t remember what I said, but whatever it was, it worked because they rejected the death penalty and sentenced him to life without parole. After the jury was excused and the burly uniforms led my client away, I sat paralyzed with exhaustion staring at the ugly green linoleum floor.

We won, but a life without parole sentence is not a victory anyone celebrates.

Sometime later, the bailiff tapped me on the shoulder and said she was closing up the courtroom. I stood up slowly and walked out of the empty courtroom and headed toward the jail. The cold and empty hallway yawned before me and the only sound was from my shuffling feet.

I should add, in case you believe that my focus on my clients is too one-sided, I’ve spent many hours studying revolting crime scene photos and autopsy photos in bright colors. Wearing gloves and a mask over my mouth and nose, I’ve pawed through bloodstained clothing and carpeting that smelled of decomp. I have seen disgusting perversions that I will never forget and will not describe here because they are too awful to contemplate. I know the horrific things that my clients did not just to adults, but to children, and there were times when I simply couldn’t face my clients because my urge to wound and kill was too strong. I needed time and distance to get my rage under control.

I also met with the families of my clients’s victims building a relationship of trust with them. I came to know their pain as though it were my own. I had to do that because I had to let the jury know that I knew, or they would not believe a word that I said when I pleaded for my client’s life.

My wife’s nephew, who was like a younger brother to her, and his girlfriend were shot to death by a person or persons unknown in the early 80s. That loss is still every bit as painful to her and the other members of her family as it was when they were first informed about the murder. So, please believe me when I say that I know pain.

A death penalty lawyer is part lawyer and part priest. We are damaged because it’s really hard on the soul to do this thankless work.

The work damn near killed me. I have two clients on death row. One was just a few days away from his scheduled execution when a defense investigator found a report and photograph by a prosecution blood-spatter expert that the prosecution never revealed to us when we tried the case way back in 1994. The photograph was exculpatory. The prosecutor was legally required to disclose the report and the photograph, but he concealed it to win the trial, secure a death penalty, and add a notch to his gun.

My client’s federal habeas counsel obtained a stay of execution and we had a hearing back in March 2010 before the trial judge. I testified for two days and it was really weird trying to recall details about an event that happened 16 years ago.

We’re still waiting to see what happens.

The other case still has some time to go.

Part of me will die, if they are executed.

I try not to think about that.

The Issue In Jared Loughner’s Case Is Whether He Lives or Dies

10:54 am in Government by Masoninblue

Electric Chair by Andy Warhol (photo: fibonetti via Flickr)

The issue in Jared Loughner’s case is not whether he is convicted or acquitted. The issue is whether he lives or dies. They have him on videotape committing the murders, he was restrained at the scene by a shooting victim and several onlookers, and they have his handwriting on an envelope recovered from his residence in which he admitted that he planned it, together with a form letter from Congresswoman Giffords addressed to him and dated August 30, 2007, thanking him for attending a meet and greet that had occurred five days earlier. They also have at least one close friend, Bryce Tierney, who told Nick Baumann, a reporter for Mother Jones magazine, that Loughner disliked Congresswoman Giffords because he didn’t like her answer to a question that he asked at that meet and greet. The question he asked was, “What is government if words have no meaning?”

Our best death penalty lawyers are part lawyer and part priest. They aren’t in it for the money because prosecutors rarely, if ever seek the death penalty against a rich person, and only the filthy rich have enough money to pay for a defense in a capital case. Death penalty lawyers are public defenders compensated with their regular monthly paycheck, or private counsel who are court appointed and compensated at rates that usually fail to cover their monthly overhead. Court appointed counsel in federal death-penalty cases are compensated at an hourly rate up to a maximum of $178/hour. Because they are so demanding of counsel’s time and energy, it’s extremely difficult to handle other cases when representing a client in a capital case. I used to clear the decks when I agreed to take one on and I always lost money when I did.

Why did I do it? I did it because it’s the right thing to do. We aren’t smart enough or wise enough to play God.  . . . Read the rest of this entry →