Dzhokhar Tsarnaev's Best Chance to Avoid the Death Penalty

The Slatest
Your News Companion by Ben Mathis-Lilley
May 1 2013 10:47 AM

Dzhokhar Tsarnaev's Best Chance to Avoid the Death Penalty

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Judy Clarke (L), seen here outside of the courthouse where Unabomber Theodore Kaczynski pleaded guilty, has a long history of taking on seemingly impossible defense cases.

Photo by JOHN G. MABANGLO/AFP/Getty Images

CNN reports this morning that government officials and Dzhokhar Tsarnaev's legal team have held some "very preliminary talks" over the past few days that could clear the way for the 19-year-old Boston bombing suspect to resume talking to investigators in exchange for taking the death penalty off the table. Exactly how serious those talks are—assuming that they are even happening—remains far from certain. The report cites one unnamed government source describing the discussions as at a "preliminary, delicate stage," while a Justice Department official denied that any "negotations" involving the death penalty are even happening.

Josh Voorhees Josh Voorhees

Josh Voorhees is a Slate senior writer. He lives in Iowa City. 

Regardless, it's likely that at some point down the road, those talks will occur if they haven't already. On Monday, the U.S. magistrate judge overseeing the case signed off on a key addition to Tsarnaev's legal team: Judy Clarke, a San Diego-based defense lawyer with an unmatched record of keeping high-profile public enemies off of death row. Her legal resume includes the defenses of Susan Smith, who drowned her two children in 1994; the Unabomber, Ted Kaczynski; Atlanta Olympics bomber Eric Rudolph; and most recently Jared Loughner. All received life sentences but were spared the death penalty. Here's how the New York Times described Clarke in 2011 while she was defending Loughner:

Ms. Clarke has an aversion to the news media and an unassuming courtroom style that masks an encyclopedic knowledge of criminal law. Her low-key style and pageboy haircut can make her seem at first to be a junior member of the legal team. But lawyers who have worked with her say she is a master strategist in death-penalty cases.
“She is known for being the criminal defense lawyers’ criminal defense lawyer,” said Norman L. Reimer, the executive director of the National Association of Criminal Defense Lawyers.
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Her addition to the case, Harvard Law School professor Alan Dershowitz told the Associated Press, suggests Tsarnaev is hoping for a fate similar to that of Clarke's past clients. "They are not going to put on a jihadi defense," he said. "The client wants to live, and he wants to avoid the death penalty. They are not going to say, 'I want to die, I want to join my brother'."

Tsarnaev has been charged with using a weapon of mass destruction at the Boston Marathon, where three people were killed and more than 260 injured when two home-made bombs exploded near the finish line. A new Washington Post-ABC poll out this morning suggests that roughly 70 percent of Americans support the death penalty for the 19-year-old. If the government decides to seek the maximum penalty, Clarke's goal will be to make sure her client's life never ends up in the hands of a jury. As the Daily Beast explains today in a profile of Clarke, she has previously quoted a fellow defense lawyer as once advising her, "The first step to losing a capital case is picking a jury."

In order to avoid the death penalty for Tsarnaev, Clarke will likely work along two major fronts, according to CNN analyst Jeffrey Toobin: She'll negotiate with the government by offering access to her client, and she'll dig deep into his history in order to tell a story that helps humanize him in the eyes of the public (and/or the jury, if it comes to that). Given public sentiment, that won't be easy. But if anyone could pull it off, legal analysts and court watchers say it's her. "I cannot tell you what a legend Judy Clarke is in the United States legal system," Toobin said on CNN yesterday afternoon, adding that she's a "miracle worker."

Lawyer Donald Rehkopf Jr, who has worked with Clarke before, had to turn to fiction in order to find a someone as talented as she is. "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," he said in a 2011 interview.*

***Follow @JoshVoorhees and the rest of the @slatest team on Twitter, and read more on Slate about the Boston Marathon bombing.***

This post has been updated to include information from today's WaPo poll.

*Correction: An earlier version of this post, citing the Daily Beast story, wrongly reported that Rehkopf served as Clarke's co-counsel on the Loughner case. But Rehkopf emails to say that is not true.