Judy Clarke: Jared Loughner's 'Amazing' Attorney


Andrew Cohen

Legal Analyst
Judy Clarke is the Forrest Gump of criminal defense attorneys. Otherwise unassuming, even shy, she seems to turn up, front and center, for many of the cases we'll never forget.

She counseled Ted Kaczynski 13 years ago this month when the Unabomber was toying with the government in advance of his guilty plea. She helped an unrepentant Eric Robert Rudolph, the Olympic Park bomber, avoid a death sentence. She was present and accountable during the chaotic trial of Susan Smith, the South Carolina mother who drowned her two small children in a car in a lake. She even represented Zacarias Moussaoui, the mercurial al-Qaeda conspirator. All of those defendants faced capital charges. None are currently on death row. And now, Clarke is Jared Lee Loughner's attorney in a dramatic case that surely will be in the headlines for years to come.

The 22-year-old defendant in the Tucson massacre case could have been assigned a lawyer who sleeps through trials, or who doesn't investigate witnesses, or who otherwise is ineffective as he squares off with federal prosecutors, a devastated Arizona, and an angry nation. In Clarke, Loughner has in his corner a tenacious attorney who is something of a folk hero to criminal defense attorneys around the country. She is dogged, detailed, and well-respected among the federal judiciary. She is also a staunch opponent of the death penalty, which is helpful, if not required, in her line of work. And she specializes, or so it seems, in molding pretrial agreements between her clients and the government which end up precluding long trials, endless appeals, and death row visits. Even legendary trial lawyers, ones with stellar national reputations of their own, consider Clarke "amazing" (to use a word that kept popping up in my in-box).

Clarke, one of the foremost experts at representing capital defendants, has little of the flamboyance of Stephen Jones, who represented Oklahoma City bomber Timothy McVeigh. She has little of the oratory skill of Michael Tigar, who saved Terry Nichols' life in the second Oklahoma City bombing trial. She does not fill a courtroom like Michael Jackson's attorney, Thomas Mesereau, or Texas' famed Dick Deguerin. But she does everything well, avoids the limelight, eschews displays of ego, and works as hard as a defense lawyer can. "She is one of my personal heroes," a veteran federal public defender told me Tuesday. "She is one of those extraordinary attorneys who have it all. She has a sharp mind for legal analysis, is an exceptional trial lawyer and is as dedicated and driven as anyone you will ever meet."

Dedicated and driven. The Tortoise, not the Hare. "Tenacious, committed, wicked smart," is how one tenacious, committed and wicked smart defense attorney described Clarke to me. Another bright legal light, Donald Rehkopf, Jr., who, like Clarke, worked on the Moussaoui case, shared with me this interesting observation about Loughner's attorney: "It is not only Judy's fantastic attention to detail, but her uncanny ability to ascertain what those details are and where they most likely are to be found. This may sound corny, but it's the best I can come up with at the moment. I would compare her to the great character of Sherlock Holmes, who can locate a seemingly innocuous bit of evidence and instantly knows its value to the case."

Rehkopf told me that Clarke's representation of South Carolina's most infamous mother, Susan Smith, "was a modern day equivalent to Clarence Darrow's famous death penalty defense of Nathan Leopold and Richard Loeb in 1924." The Smith case, 15 years ago, prompted Clarke to offer some rare public introspection about her journey to the law. This, from a 1996 interview with Dan Webster of the (Spokane, Washington) Spokesman-Review:
'''We debated a lot in the family,' she says. 'We were very vocal, and we always took positions.' The Clarke family motto, she says, was 'Be what you can be and be the best that you can be, whatever it is you pick to be.' And what Clarke wanted to be always related to the law. 'From about the sixth or seventh grade, I wanted to become either the chief justice of the Supreme Court or Perry Mason,' Clarke says. 'One summer when I was young, my mother wanted to teach my sister and I crocheting and the Constitution. She says that for my sister, the crocheting stuck, and for me, the Constitution stuck.'"
In the Smith case, Clarke's (ultimately successful) plea to the jury to spare her client's life was eloquent -- and perhaps a sign of things to come in United States v. Loughner. Again, from Webster's 1996 account:
"'This is not a case about evil,' Clarke told the jury. 'This is a case about despair and sadness.' Smith, Clarke said, 'had choices and decisions. Her choices were irrational and her decisions were tragic. She made a horrible, horrible decision to be at that lake that night. She made that decision with a confused mind and a heart without hope.' But, Clarke added, 'Confusion is not evil, and hopelessness is not malice.'"
Already Clarke has made her imprint on Loughner's defense, asking a federal magistrate Monday to recuse Arizona's federal trial judges from presiding over her client's case following the death of their boss, Chief U.S. District Judge John M. Roll, in Saturday's assault. No defendant ought to be judged by a co-worker of one of the victims, and the arrival of another federal judge, from beyond Arizona, surely will help Loughner and decrease the likelihood of viable post-trial appeals issues should the case make it that far.

Clarke also is likely to be aggressive when it comes to the venue for the case -- she may seek to have it moved out of Arizona altogether, depending upon which judge comes in to take care of the matter. And you can also count on an intense focus, from the defense perspective anyway, on Loughner's mental state leading up to the shootings. The defendant, of course, is free to steer his own course -- which may or may not include a viable defense. A lawyer can only do so much. But at Monday's hearing Loughner was deferential to his attorney. If he's smart, he'll stay that way.