• U.S.

The Legendary Lawyer Who Will Defend Loughner: Judy Clarke

6 minute read
Beau Friedlander

When he made his appearance in court on Monday, Jared Lee Loughner, 22, stood next to a woman a head taller than he is. Judy Clarke, 58, embodies his biggest chance at beating a potential death penalty. Loughner’s court-appointed public defender is, in fact, a legend among defense attorneys, not for her ability to win acquittals but for her often confounding and unpopular rescues of people who seemed destined to receive capital punishment. David Protess, director of the Medill Innocence Project, says, “A lot of her clients are poster boys for the death penalty.” But he insists, “She quietly saves lives.” Among those lives: the Unabomber Ted Kaczynski and Susan Smith, the South Carolina mother who was convicted of drowning her two children in 1994.

No public defender in Arizona was willing to represent Loughner in court, given that the murder of Judge John Roll, who presided over the federal district, affected everyone in the Arizona system. And so the state turned to Clarke, who is now based in San Diego. “It was our view that, under the very unique circumstances of this case, the client’s interest would best be served by out-of-district counsel,” said Dale Baich of the Federal Public Defender’s Office in Phoenix, which recommended Clarke to the magistrate. Asked why the office recommended Clarke, Baich said, “She’s one of the best.”

(See TIME’s full coverage of the Tucson shooting.)

Clarke is particularly skilled at working with unstable clients who, without careful guidance, run a high risk of self-sabotage in what is a life-and-death situation. Those talents were on display when she got Kaczynski to go along with a plea bargain (based on mental defect) that led to life in prison. The defendant’s brother, David Kaczynski, now executive director of New Yorkers for Alternatives to the Death Penalty, tells TIME, “Judy is not only a brilliant attorney; she is a good human being … I remember her saying, ‘David, you have a very special brother.’ She was saying, in one way, ‘He’s a real pain,’ but she also saw deeply into Ted. He is unusual, and she saw that his being different put him in a place where he was quite alone. His specialness and uniqueness enlisted deep compassion in her.” David remembers, particularly, how Clarke rested her hand on Ted’s shoulder during a court appearance.

“It is extraordinarily difficult work,” says Ron Kuby, a radio personality and criminal defense attorney who represents controversial clients. “Crazy people, like sane people, don’t like to be called crazy. A huge part is to get the clients to allow you to help. Many of them are so crazy that they think they’re sane.” He adds, “Her people tend to be crazier. More unstable, less political — the politics become an explanation for the erratic behavior.” (Indeed, after his life sentence, Ted Kaczynski tried to vacate the deal and ask for another trial. He fired Clarke and her associates — but she hung on as an adviser while a judge considered the request, and eventually rejected it.)

(See a TIME interview with Ted Kaczynski.)

“Judy knows no one wants to be measured by the worst moment of their lives,” says her friend Jack King of the National Association of Criminal Defense Lawyers. “She can reach into people and find the human being inside, no matter how the rest of the world looks at them.”

Defending Loughner may play to Clarke’s strengths. Says Kuby: “The insanity defense would not work. He knew the nature and consequence of his action. His mental condition should be instrumental in mitigating punishment, and that’s where Judy Clarke comes in.”

(See the six warning signs of Jared Loughner.)

She approaches her work with an almost religious zeal because of her opposition to the death penalty, which she has called “legalized homicide.” Quin Denvir, a colleague who worked with her on the Unabomber case, says, “Judy has a passionate belief in defending individuals against the state with all its powers, and the most critical way you can defend a person is when you are trying to save their life.” (Still, some ethicists criticized her work for Kaczynski as arrogantly blurring the lines that separate a client’s rights from an attorney’s responsibility.)

Over a career spanning three decades, she has represented some of the nation’s most notorious defendants. And while she has not gotten life sentences for all of them — her client Timothy McVeigh was executed in 2001 for his role in the Oklahoma City bombing — she has an impressive track record, including seemingly lost causes like Kaczynski, the so-called 9/11 conspirator Zacarias Moussaoui and Atlanta Olympics bomber Eric Robert Rudolph. All three faced the death penalty; all three are now serving life sentences at ADX Florence, a supermax prison in Colorado.

The case that made her reputation, according to attorneys and friends, was that of Susan Smith, now 39, of South Carolina, who is incarcerated in a prison near Greenwood, S.C., and who will be eligible for parole in 2024. Clarke donated her fee, more than $80,000, to a fund supporting indigent defendants. As a result of the public uproar over the Smith sentencing, South Carolina passed a law barring out-of-state counsel in its capital cases. The move was ironic because Clarke grew up just one state over, in Asheville, N.C., and earned her law degree at the University of South Carolina.

Clarke was raised by conservative parents, and piety may have helped shape her conviction about capital punishment. Asked about Clarke’s commitment, her friend King responds, “You ever been to the South? She’s a Southerner, born and raised. Throughout the South, you’ll find more churches per square inch than anywhere on earth. When she and I were growing up, you had to say the Lord’s Prayer every day at school.” As for her life’s work, he says, “She does it because it’s a calling. She’s trying to stop the death penalty one human being at a time.” Lawyers who know her say Clarke orchestrates all aspects of a case, from which experts to use to how to best collect evidence.

In an era when defense lawyers routinely use the media to sway judges and juries, Clarke, her friends claim, is an anomaly, avoiding anything that might harm the fragile trust between her and her clients. She did not return calls from TIME to discuss her work on the Loughner case, and when she was reached in person in Phoenix, she chose not to talk at all. “Most lawyers who do this type of work talk to the media to create a counternarrative for their client,” says Kuby. “You make them seem less evil as part of a legal strategy. Judy Clarke has always refused to do that — with fantastic results.” With reporting by Adam Klawonn/Phoenix

See TIME’s photo-essay “Mourning the Victims of the Arizona Shooting.”

See “Messages for the Tucson Victims.”

More Must-Reads from TIME

Contact us at letters@time.com