Boston bombing suspect's lawyer no stranger to saving clients from death

“He did it.”

It was not, truth be told, a classic opening statement for a defence attorney to give regarding her client. But this is not a run-of-the-mill criminal trial, either; it is a huge federal trial, carrying a possible death sentence – the most high-profile trial of a terrorist on US soil since the Oklahoma City bomber.

And Judy Clarke, the lawyer representing Dzhokhar Tsarnaev – the survivor, and younger of two brothers accused of perpetrating the bomb attacks on the Boston Marathon in 2013 – is not an ordinary defence attorney.

In fact, for her whole career Clarke has specialised in saving the lives of clients like Tsarnaev, who stand accused in federal court of capital crimes. And she is, friends and colleagues told the Guardian, phenomenally good at it.

Specifically, this has meant she has become an expert in the delicate tactics needed to take someone who is seen in the eyes of the world as a monster, and humanise them – just enough to convince a jury to save their life.

The list of high-profile clients she has helped escape the death penalty in this way is a who’s who of American killers. There’s Ted Kaczynski, the Unabomber; Eric Rudolph, the Olympic Park bomber; and Jared Loughner, the shooter who killed six people and injured 15 more, including representative Gabrielle Giffords, in Tucson in 2011.

She defended Buford Furrow, the Aryan Nations member who opened fire on the Los Angeles Jewish Community Center in 1999; and she was a consultant to the defence of 9/11 co-conspirator Zac Moussaoui in 2002.

But she first made her name, first entered the public consciousness, in 1995 – in a bizarre and sensational case that captivated the public.

The case of Susan Smith

In October 1994, Susan Smith, a 24-year-old mother of two from Union, South Carolina, reported to police that she had been carjacked by a black man, and that he had kidnapped her two children in the car. For nine days, a huge search ensued. Smith herself made regular, heartbreaking, televised pleas for her children’s return.

But they would never come back. As Smith’s story began to unravel it became clear that she had been lying – that, in fact, she had killed her two sons by rolling her car, with them inside, into a nearby lake.

Keith Giese was a special prosecutor in the Smith case, and faced Clarke – who defended Smith successfully from the death penalty – across the courtroom. He told the Guardian that he was unsurprised by her tactical choices in the Tsarnaev case – in fact, he said, she made almost exactly the same moves in the Smith trial.

“The focus is going to be not that he’s not guilty – that he didn’t do it,” he said. “My guess is she would be setting up the approach for him to not get the death penalty.”

“It’s probably got the best chance of working,” he said.

A federal case such as Tsarnaev’s, in which he is accused of capital crimes, is split into two phases. The first is the guilt phase, designed to establish his guilt or innocence on the 30 charges against him.

In an ordinary trial, the judge would then simply give the defendant his sentence. But a death penalty trial is different; it will then enter a second phase. This will be the sentencing phase; the jury will hear yet more evidence, and must then vote on whether Tsarnaev should be put to death. A vote for execution must be unanimous.

Clarke is famously media-shy, and almost never gives interviews. On Wednesday, after the trial had finished for the day, she went into a bar near the courthouse and, seeing a table of reporters from the New York Times, the Guardian, Buzzfeed, Boston Magazine, the Daily Telegraph and the Irish Times, turned around and left.

But in her few public statements, including an interview with her university alumni magazine unearthed by Yahoo News, underline that her major driving motivation is her deep philosophical disdain for the death penalty. Even as far back as the Smith case, Giese recalled that her beliefs about capital punishment were very strong.

Nora Demleitner is the dean of the Washington and Lee University school of law, where Clarke also teaches. She told the Guardian that Clarke’s feelings about the death penalty are what drive and animate her.

Giese said that she wasn’t a fan of “great flourishes” in the courtroom. “Just a very straightforward approach with the jurors, was how she connected with them,” he said.

“She’s the best I know,” said Jonathan Shapiro, a defence lawyer and friend of Clarke’s, who has also worked with her in the past. “She’s got a great way of talking to a jury – like a person, not like a lawyer. She’s not a flamboyant person, she’s not an orator in a classic sense. She talks like a person. Because of that, she can really break through to jurors.”

“She sees the humanity in all of the [defendants] in a way that those of us who just read the media accounts would think they’re not human,” Demleitner said. “She gets to the bottom of their humanity and manages to portray them like that in court.” It is striking that throughout her opening statement, Clarke referred to her client not as Dzhokhar or Tsarnaev, but as “Jahar” – the affectionate nickname by which his university friends know him.

Her opening speech may have looked like an abdication to the untrained eye, but it was a ploy designed to spike the prosecution’s guns, and build trust with the jury in her, and in Tsarnaev. “I know that you seem to be surprised by it,” Shapiro told the Guardian about the “he did it” moment. “But to me that was the obvious and only thing to do.”

Demleitner agreed, saying that the tactic was partly about establishing Clarke’s credibility with the jury, but also about making it more difficult for the prosecution to labour the details of the injuries caused by the bombing, to build enmity toward the defendant. “Because now there’s no need to do that,” Demleitner said. “She’s conceded her client’s guilt.”

Demleitner said that this could cut down the time spent fighting in the guilt phase, and speed the arrival of the sentencing phase when, because the rules for evidence are different from the guilt phase, Clarke will be much freer to present evidence showing Tsarnaev as in thrall to his elder brother Tamerlan.

Shapiro, who was the lead defence in the case of the Beltway Sniper, a case like this takes a huge emotional toll on a defence attorney. “It’s gruelling,” he said. “There’s nothing worse except being at war. The pressures are enormous. It’s extremely difficult to be there, and hear the stories [of the victims]; that takes a toll on everybody, and defence lawyers aren’t immune to that.”

He said that at the moment, he sends jokes to Clarke and other friends on Tsarnaev’s defence team every morning by email. “You literally have somebody else’s life in your hands,” he said. “It’s a very difficult job. So, I try to keep their spirits up.”

The trial continues.