Death Penalty Lawyer Judy Clarke on the Management of Clients Facing Death Penalty Trials: "My Job is to Change Their Resolve."

The Associated Press published an article with fascinating insights into the capital case strategy of legendary death penalty trial lawyer Judy Clarke.  The AP notes that the names of Clarke's "past clients — Susan Smith, Unabomber Theodore Kaczynski and most recently, Tucson shooter Jared Loughner — run like a list of the most reviled in American criminal history."

According to the AP, Clarke told an audience  at Loyola Law School's annual Fidler Institute's legal seminar that one of the things all of her clients have in common is that  "[w]hen she first meets them, they do not want to plead guilty. Her job is to change their resolve, she said.. . .Clarke said a veteran lawyer once told her: "The first step to losing a capital case is picking a jury".

Because the issues are so profound, it was difficult for me to frame this post so that my sentiments are communicated clearly. Having litigated capital cases,  I have a tremendous amount of respect for Judy Clarke and other death penalty trial attorneys who have devoted their lives to the defense of these incredibly difficult and emotionally draining cases.

However, I am uncomfortable with her statement - if it was attributed correctly - that her job is to convince her client to plead guilty. If a client is competent enough to plead guilty, they are competent enough to make an informed decision on whether they want to face the consequences of going to trial in a capital murder case. Wearing down a client's resolve to maintain their presumption of innocence, and force the state to prove its case at trial, should not be the default strategy of a capital trial lawyer. 

Can a Capital Case Client Rationally Choose to Risk Death by Insisting on Going to Trial?

I understand that Clarke's goal, as she sees it, is to save her client's life.  In high profile media cases the prosecutor's default position is that a plea to life imprisonment isn't even on the table.  It takes a lot of very hard specialized work to grind  the prosecution down to the point where they will even extend  an offer to the defendant of an agreement to life in prison.  However, it does not follow that once a plea to life imprisonment is offered that pleading guilty is the only rational option for a death penalty. 

In certain circumstances, a client can make a perfectly rational decision to reject a plea based on the belief that life in prison - under extremely harsh conditions that have been equated to psychological torture - would be worse than death.  Choosing to exercise one's right to go to trial, even against insurmountable odds and under the risk of being executed, is not the same as deciding to be a post-conviction volunteer. I would hate to think that any defense attorney would sacrifice a client's right to force the State to prove their guilt beyond a reasonable doubt because of a philosophy that sees the preservation of life as their greatest goal and ultimate objective.

Attorney-Client Communication Skills

A criminal defense lawyers communication skills in dealing with a difficult client are just as important as their trial advocacy skills before a jury. A client must understand in the clearest possible terms (1) the evidence the State intends to use against him at trial (2), what factors will influence the final outcome of his case, (3) what is the worst case scenario if he is convicted after a jury trial, and (4) What are the full consequences of any plea agreement offered by the State.

Although I am always asked, I refuse to give clients odds on the likelihood of a conviction. If I believe that it is in their interests to accept a plea, I do my best to convince a client that a guilty plea is their best option under all of the circumstances. I have also been proven wrong by clients who have rejected my advice.  In a non-lethal gang-related stabbing case,  I begged my client to take a plea to avoid what I thought was a certain conviction and lengthy mandatory prison sentence.  At the end of the trial he walked out of the courtroom after the jury's non guilty verdicts. 

As a new public defender I learned quickly that the best criminal defense lawyers were not the one's who had a high number of jury trials. One of my former colleagues, who is now a trial judge, was nicknamed "Death Roland" because so many of his clients were on  death row awaiting execution. He either didn't work hard enough to get the prosecutor to  offer a plea to life in prison, or he didn't care enough about the clients to make a concerted effort to convince them that it was in their best interest to accept a plea to life in prison. 

Are Capital Murder Cases Different From Non-Capital Murder Cases?

I also disagree with Ms. Clarke's statement that death penalty cases are necessarily different from non-capital murders and other violent felonies because of the trauma characteristically found to have been suffered by capital defendants. The decision to charge the death penalty in the United States is made by local prosecutors based on a wide variety of criteria. As a general rule, the decision to charge a murder as a death penalty case is arbitrary. There are thousands of murder cases tried in the U.S. every year with defendants who have suffered the same kind of trauma described by Clarke. Yet they will not receive the same quality of counsel, the same expert and investigative pre-trial resources, or the same appellate scrutiny as capital case defendants receive.

The only consistent difference between a capital and non-capital murder case is the penalty imposed, the media publicity that invariably played a part in the prosecutor charging the death penalty in the first place,  and the expertise required to select an unbiased jury.