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Judy Clarke, Not Quite Invincible

I have met Judy Clarke, Tsarnaev's lead counsel, only once.  I thought she was mild-mannered and pleasant.  It was not in a setting where I could assess her abilities as an attorney.

Ms. Clarke has a strong reputation for avoiding the death penalty for the worst of clients; she has done so more than once.  Her reputation is such that, at the time she came into the Boston Marathon bombing case, there was at least one prediction that the prosecution would get scared off and cave in:

I mused in this post a couple of weeks ago when Tsarnaev was first captured that "as in the case of the Unibomber and the Tucson shooter and other notorious federal mass murderers, I would not be surprised if eventually capital charges are taken off the table for a guaranteed LWOP sentence in exchange for a guilty plea."  The appointment of Clarke prompts me to now turn my musings into a prediction: I think the odds are now pretty good that, after a fair bit of (costly?) legal wranging over the next few months or years, Dzhokhar Tsarnaev will plead guilty and get sentenced to life without the possibility of parole. 

I have often said that what counts in litigation is less the lawyers, whether good or bad, than the evidence.  It is no fault of Ms. Clarke that, even in a jurisdiction notably hostile to the death penalty, her client received it after all.  The hateful, calculated and grotesque manner of these murders was too much to overcome.

What Tsarnaev needed was not a lawyer but a magician.  


I wonder what happens when the inevitable ineffective assistance of counsel claim is made. Does she fall on her sword and say "yes, I was awful"? It happens.

I doubt she'll say she was ineffective, since absolutely no one -- as in zero -- will believe it. There would be no pay-off except self-flagellation.

On the other hand, it's hard to predict what someone will do who thinks Sister Prejean will sell to a jury. Sister Prejean, a fraud a more obvious than whom is impossible to conceive.

It is a testament to the American justice system that Tsarnaev got the quality of representation that he did. Habeas counsel will inevitably find things that were not done or potentially mitigating evidence that was not presented. Trial counsel no doubt will acknowledge these things but probably not claim they were ineffective.

Good points, Bill, about evidence mattering more than the lawyers (though Kent rightly noted in the prior post that the feds had an "exceptionally talented prosecution team"). From the outside at the time of my prediction, I thought Judy Clarke might have more mitigating evidence to work with. In the end, I surmise this brutal killer was not at all remorseful and that Prejean's testimony in some ways confirmed this for the jurors.

I share your sense that an IAC claim will be really hard to sell hear. I suspect on direct appeal much will be made of the venue, and in the 2255 setting there will be an effort to dig into the work of the prosecutors. It will be interesting to see how long the lower courts will take to resolve these claims and whether SCOTUS ever votes to take the case up. I also wonder about the execution method of choice whenever the appeals run out.

A question and an offer.

Do you think today's jury decision was justified by the evidence, so far as you know it?

I'll offer you $100 to $1 that this case is not overturned for ineffective assistance. Are we on?

Oops, I now see it was you Bill, not Kent, who spoke before of the "exceptionally talented prosecution team."

Correct, it was me.

I again encourage you to go down to the local USAO and just spend half a day talking to the people there. I think you'll be more persuaded of two things.

The first is that the notion that AUSAs use MM's to extort guilty pleas from innocent people is flat-out false. They're not innocent and it's not extortion. The defendant does it because he knows the government will toast him at trial, and it's the best deal he's going to get.

The second is that you misunderstand how prosecutors think. When Judy Clarke came into the case, the reaction would not have been, "Ooops, we better not take this to trial." Instead, there probably would have been no reaction at all; I never gave two hoots in hell about who the opposing lawyer was.

If there had been a reaction, it would have been: "May God be praised, there goes the IAC motion."

P.S. I don't know anyone in the Boston Office, but I can tell you with great confidence how the US Attorney approached this case. The day she got it, she called in the three best trial lawyers and the smartest guy on her staff and said, "All yours."

Not sure why we are talking about MMs here, but Weldon Angelos and Chris Williams can tell you a much different story about efforts to use MMs to try to prevent the exercise of rights. If you can justify the threat to put Angelos in prison for 115 years and Williams in prison for 80 years on the merits, I will change my tune.

As to you questions:

1. If we have the death penalty, this case seems like the poster child from the evidence I have seen. In other words, the evidence seems fully supportive of this outcome, and I am especially respectful of a jury determination that this is the proper sentence (I wish a jury or judge made a discretionary sentencing decision for Angelos or Williams).

2. I am certain this case will not be reversed on an IAC claim. As I said in another thread, venue will be the focus on direct appeal and then 2255 appeals will fish for prosecutorial problems.

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