Penalty Phase In Boston Marathon Bombing Trial Will Test Defense Lawyer's Record In Capital Cases
By Pat Loeb
PHILADELPHIA (CBS) -- As the Boston Marathon bombing moves to the penalty phase, this week, the defense will try to engage the jury's sympathies in hopes of sparing their client the death penalty.
It's a tactic that has worked for the last 20 years for defense lawyer Judy Clarke, who has represented some of the most reviled defendants in the annals of U.S. criminal justice.
Clarke herself does not speak to reporters, but interviews with both a fan and a prosecutor who's gone up against reveal an attorney who uses her own reservoirs of compassion to convince juries to see her clients humanity.
"That's the key to the success that she's seen in these particular cases," says South Carolina state representative Tommy Pope, who faced Clarke when he prosecuted Susan Smith in 1994 for the murder of her two children.
"Instead of arguing the facts and evidence of the case, they argued, you know, Susan the victim," he says, "...to take the jury away from the nature of the crime, the horror of the crime and to dial down into the individuality of the defendant."
Smith, though, despised when it was discovered her tearful account of being carjacked by an African-American male was a ruse to cover up her own crime, was sentenced to prison and not to death.
Clarke raised Smith's painful past of sexual abuse by her stepfather in creating a sympathetic portrait of a troubled, desperate woman to counter Pope's version of a vengeful, cold-blooded murderer.
"She is mission oriented," Pope says, "and her mission is to save her clients from execution."
That is something David Kaczynski admires about Clarke. Clarke defended his brother Ted, also known as the Unabomber, who avoided a death sentence despite admitting to mailing a series of letter bombs from 1978 to 1995 that killed three people and injured 23 others.
David says he turned his brother in to authorities in order to save lives and was riddled with guilt to think it might cost Ted his life so he saw Clarke "as an ally."
"I think she saw her job as saving his life and I think in some sense what she's doing is saving one life at a time," he says. "It's an interpretation of how she sees her role as an attorney and when you have a defendant who is too ill or too consumed with fanaticism to understand their own best interest, Judy is not only saving the individual person's life, she's saving society."
Pope expects Clarke to paint Dhokar Tsarnaev as a follower, unduly influenced by a brother he loved and looked up to and depended on. She has already laid that groundwork in the trial.
Pope thinks it will be a particular challenge but he's not counting her out.
"The years have honed her skills even more," he says.