“We meet in the most tragic of circumstances,” Judy Clarke, the lead defense lawyer representing Dzhokhar Tsarnaev, began. She stood at a lectern, facing the jurors, in a dark suit accented by a blue-and-purple scarf that she wears so often it seems like a courtroom talisman. To her right, George O’Toole, the judge, looked at her over his spectacles. Behind her was Tsarnaev, the slim, soft-featured young man who was on trial for the bombing at the Boston Marathon on April 15, 2013—the worst domestic terrorist attack since September 11th.
Outside the courthouse, snow from successive blizzards had piled up in grubby dunes. Clarke, who lives in San Diego, despises cold weather, but she’d endured an entire New England winter. “Judy was in Boston for a year before the case went to trial, meeting with this kid,” her friend Jonathan Shapiro, who has taught with Clarke at Washington and Lee University Law School, told me. It was early March, and nearly two years had passed since Tsarnaev, along with his older brother, Tamerlan, detonated two homemade bombs near the finish line of the marathon, killing three people and injuring two hundred and sixty-four; they then carjacked a Mercedes, murdered an M.I.T. police officer named Sean Collier, and engaged in a shootout with the cops. Dzhokhar, nineteen at the time, accidentally killed Tamerlan, who was twenty-six, by running over him in the getaway car. Dzhokhar was discovered, wounded and expecting to die, inside a dry-docked boat in the suburb of Watertown. While he was recovering in the hospital, Miriam Conrad, the chief federal public defender in Massachusetts, contacted Clarke, and Clarke decided to take the case.
Clarke may be the best death-penalty lawyer in America. Her efforts helped spare the lives of Ted Kaczynski (the Unabomber), Zacarias Moussaoui (the so-called “twentieth hijacker” in the 9/11 plot), and Jared Loughner (who killed six people and wounded thirteen others, including Representative Gabrielle Giffords, at a Tucson mall). “Every time Judy takes a new case, it’s a soul-searching process for her,” Clarke’s old friend Elisabeth Semel told me. “Because it’s an enormous responsibility.” On rare occasions when Clarke withdrew or was removed from a defense team, a defendant received the death penalty. But in cases that she tried through the sentencing phase, she had never lost a client to death row.
The administration of capital punishment is notoriously prone to error. According to the Death Penalty Information Center, a hundred and fifty-five death-row inmates have been exonerated, and it stands to reason that innocent people still face execution. Clarke does not represent such individuals. Her specialty is what the Supreme Court has called “the worst of the worst”: child rapists, torturers, terrorists, mass murderers, and others who have committed crimes so appalling that even death-penalty opponents might be tempted to make an exception. Tsarnaev was indisputably guilty; the lead prosecutor, William Weinreb, described in his opening statement a video in which Tsarnaev is seen depositing a backpack directly behind an eight-year-old boy on Boylston Street and walking away before it explodes. In January, 2014, Attorney General Eric Holder, who had publicly expressed his personal opposition to the death penalty, announced that the government would seek to execute Tsarnaev, explaining that the scale of the horror had compelled the decision.
The prosecution referred to Tsarnaev as Dzhokhar, his given name, which is Chechen and means “jewel.” But as Clarke addressed the jury she used the nickname that he had adopted as a high-school student, in Cambridge, Massachusetts: Jahar. In a capital case, a defense attorney seeks to humanize the client to the point that jurors might hesitate to condemn him to death. Clarke has said that her job is to transform the defendant from an unfathomable monster into “one of us.”
Her use of the nickname also signalled genuine familiarity. Clarke spends hundreds of hours getting to know reviled criminals. Her friend Tina Hunt, a federal public defender in Georgia who has known Clarke for thirty years, said, “Judy is fascinated by what makes people tick—what drives people to commit these kinds of crimes. People aren’t born evil. She has a very deep and abiding faith in that idea.”
Most of Clarke’s success in death-penalty cases has come from negotiating plea deals. She often cites a legal adage: the first step in losing a death-penalty case is picking a jury. To avoid a trial, Clarke does not shy away from the muscular exertion of leverage. In 2005, she secured a plea deal for Eric Rudolph, who detonated bombs at abortion clinics and at the Atlanta Summer Olympics, after Rudolph promised to disclose the location of an explosive device that he had buried near a residential neighborhood in North Carolina. Soon after joining Tsarnaev’s team, Clarke indicated that her client was prepared to plead guilty in exchange for a sentence of life without parole. Federal officials declined this offer. Clarke then pushed to move the trial out of Boston, arguing that local jurors would have an “overwhelming prejudice” against Tsarnaev. Judge O’Toole disagreed.
Clarke looked at the jurors one by one. “For the next several weeks, we’re all going to come face to face with unbearable grief, loss, and pain caused by a series of senseless, horribly misguided acts carried out by two brothers,” she said. She is tall, with straight brown hair and long arms that dangle, a little comically, like the boughs of a weeping willow. Clarke’s style with a jury is warm, conversational, devoid of bombast. Whenever she paused for emphasis, the muted clatter of typing would fill the room as journalists with laptops live-tweeted the proceedings.
“There’s little that occurred the week of April the 15th—the bombings, the murder of Officer Collier, the carjacking, the shootout in Watertown—that we dispute,” she said. Clarke was acknowledging her client’s guilt. So why bother with a trial? Each juror had a digital monitor for viewing evidence, and Clarke flashed a photograph of Jahar as a young boy, dark-eyed and floppy-haired, sitting next to a much larger Tamerlan. Clarke said, “What took Jahar Tsarnaev from this to Jahar Tsarnaev and his brother with backpacks walking down Boylston?”
Before-and-after photographs are standard exhibits in Clarke’s repertoire. The effect is deliberately jarring, like seeing the yearbook photo of a movie star before he became famous. Clarke promised the jury that she would not try to minimize or excuse Tsarnaev’s conduct. Instead—in a vanishingly fine distinction—she hoped to present his life in a way that might mitigate his moral culpability. The jurors stared past her at Tsarnaev. He sat at the defense table, fiddling with his unruly dark hair, in a blazer and a shirt that was unbuttoned a little rakishly for a murder trial. “It’s going to be a lot to ask of you to hold your minds and hearts open,” Clarke said. “But that is what we ask.”
Among death-penalty lawyers, Clarke is known, without irony, as St. Judy, on the basis of her humility, her generosity, and her devotion to her clients. She has not given an interview to the mainstream press in twenty years. But, in a 2013 commencement speech at Gonzaga University School of Law, Clarke said that her clients have obliged her to “redefine what a win means.” Victory usually means a life sentence. Even so, Clarke said, she owes a debt of gratitude to her clients, for “the lessons they’ve taught me—about human behavior and human frailty—and the constant reminder that there but for the grace of God go I.”
In some ways, Clarke’s public persona resembles that of Sister Helen Prejean, the Catholic nun from New Orleans who runs the Ministry Against the Death Penalty. In her 1993 book, “Dead Man Walking,” Prejean describes the bond that she formed with a killer who had been condemned to death. The “weight of his loneliness, his abandonment, draws me,” she writes. She abhors his crimes, yet senses a “sheer and essential humanness” in him.
But Clarke is no nun. Her convictions are rooted in constitutional law, not the Bible, and in the courtroom she is unabashedly gladiatorial. In 1990, she told the Los Angeles Times, “I love the fight.” Though she lacks the flamboyant manner often associated with trial lawyers, she is not above courtroom theatre. In 2003, when she represented Jay Lentz—a former Navy intelligence officer accused of murdering his wife—Clarke summoned to the stand Lentz’s twelve-year-old daughter, Julia, who was four years old at the time of the killing. Julia told the jury that her father meant everything to her. The judge had warned Clarke that Julia was not to address her father, but Clarke defied this directive, asking her if she had anything to tell him. “I love you, Daddy,” she said. The jury spared his life.
Clarke is driven by an intense philosophical opposition to the death penalty. She once observed that “legalized homicide is not a good idea for a civilized nation.” Her friend David Ruhnke, who has tried more than a dozen capital cases, said, “It’s not often you get to occupy the moral high ground as a criminal-defense lawyer, but I think in death-penalty law we do.” According to friends, Clarke is also drawn to the intellectual problem posed by unconscionable crime. When Eric Rudolph went on the run from authorities in the mountains of North Carolina, Clarke told Tina Hunt, “If they ever catch him, I want to represent him.” Hunt recalls saying, “Are you fucking nuts? He’s a fanatic! He blows up abortion clinics! Judy, we need to make you some flash cards that just say ‘NO.’ ” According to Hunt, Clarke is perpetually seeking “the key that turns the lock that opens the door that would let a person do something like this.”
In this regard, Clarke evokes the French attorney Jacques Vergès, who represented Klaus Barbie (the Butcher of Lyon), Carlos the Jackal, and the Khmer Rouge leader Khieu Samphan. Vergès, who died in 2013, took a certain glee in upending the comforting pieties of criminal justice, by insisting that his clients were more human than others cared to admit. “What was so shocking about Hitler ‘the monster’ was that he loved his dog so much and kissed the hands of his secretaries,” Vergès once remarked. “The interesting thing about my clients is discovering what brings them to do these horrific things.” As the Tsarnaev case began, Clarke told the jury that she would not contest the “who” or the “what” of the case. She would focus on the “why.”
Clarke, who is sixty-three, grew up in Asheville, North Carolina. From an early age, she told the San Antonio Express News, she “thought it would be neat to be Perry Mason and win all the time.” At Furman College, in Greenville, South Carolina, she studied psychology and led a successful campaign to change the name of the student government to the Association of Furman Students, on the ground that the group lacked genuine governing authority. She married her college boyfriend, Thomas (Speedy) Rice—a jovial round-faced man who also became an attorney. After she completed law school, at the University of South Carolina, they moved to San Diego, where, in 1977, she joined a small office of federal public defenders.
“At that time, you could count the number of women criminal-defense lawyers practicing in San Diego County on one hand,” Elisabeth Semel, who met Clarke during this period and now runs the death-penalty clinic at the University of California-Berkeley School of Law, recalls. Semel and Clarke went for ten-mile jogs on weekends. “We needed the camaraderie, because it was a hostile environment,” Semel said, adding that the judicial establishment in San Diego was notably conservative. Clarke worked tirelessly on behalf of undocumented immigrants, drug dealers, and others charged with federal crimes who could not afford a private attorney. She was soon running the office, doubling the number of lawyers and tripling the budget. She asked new hires to sign a “blood letter” committing to work at least sixty hours a week. Clarke routinely put in eighty.
In 1991, Clarke joined a large law firm, McKenna Long & Aldridge, where she could apply her formidable skills to defending white-collar clients. But, according to Bob Brewer, the partner who recruited Clarke, “she had a real problem charging people for her time.” They devised a system in which Clarke would meet a new client, hear about the case, then politely excuse herself, allowing Brewer to swoop in and negotiate a fee. Clarke lasted a little more than a year. These days, when discussing her career, she has been known to deadpan, “I was sentenced to fifteen months of private practice at McKenna Long & Aldridge.”
In 1992, Clarke moved to Spokane and took over the federal defenders’ office for Eastern Washington and Idaho. At the time, one of her law-school friends, David Bruck, remarked that this was like Mozart arriving in town to direct the Spokane Symphony Orchestra.
Bruck is a soft-spoken Montreal native with thick white hair. He moved to South Carolina in 1972 to attend law school and became one of the state’s most prominent capital-defense attorneys. In 1994, he took on the case of Susan Smith, a twenty-three-year-old woman from the small city of Union, who was charged with murdering her two sons—both toddlers—by letting her car slide into a lake while they were strapped into the back seat. Initially, Smith claimed that a black man had carjacked her and kidnapped the children, but, after a frantic, racially divisive manhunt, she confessed that her boys could be found in the lake. The state sought the death penalty, which meant that Smith was entitled to a second attorney; Bruck turned to his old friend Judy Clarke. When she protested that she had never tried a death-penalty case, Bruck said, “That’s not what I need. I need you.”
In the Smith trial, Clarke developed many of the techniques that have become hallmarks of her work. She promised jurors that she wouldn’t trivialize what Smith had done or present an “abuse excuse.” Even so, she argued that the jury had an obligation to understand not just Smith’s awful act but her whole life leading up to that moment. Smith’s father, a millworker, had killed himself when she was little. Her mother remarried, and her stepfather molested her. She had twice attempted suicide, and at the lake, Clarke argued, Smith had intended to die with her children; at the last second, a survival instinct propelled her out of the car, at which point it was too late to save the kids.
The prosecutors presented a devastating case. An ex-boyfriend of Smith’s, the son of a wealthy mill owner, testified that, a week before the killing, he had sent Smith a breakup letter in which he wrote, “There are some things about you that aren’t suited for me, and yes I mean your children.” A diver testified about finding the car, overturned, at the bottom of the lake and spotting “a small hand pressed against the glass.”
The defense summoned one of Smith’s prison guards, who attested to her remorse. “Everyone has a breaking point,” Clarke told the jury. “Susan broke where many of us might bend.” Her star witness was Beverly Russell, Smith’s stepfather. He tearfully confessed to molesting Smith and, addressing her directly, said, “You do not have all the guilt in this tragedy.”
Smith received a life sentence. In a subsequent interview, Clarke suggested that while it is sometimes prudent to move a trial away from where the alleged crime took place, in this instance it helped that Smith was tried by South Carolinians. “She was one of them,” Clarke said. After the case concluded, Clarke paid a Christmas visit to Smith in jail. Mindful of her clients’ isolation, she remembers birthdays and holidays. South Carolina later passed a law barring courts from appointing out-of-state lawyers in capital cases.
A death-penalty trial consists of two parts: the “guilt phase,” in which the jury determines whether the defendant committed the crime, and the “penalty phase,” in which the jurors vote on a sentence. Although Clarke had effectively conceded Tsarnaev’s guilt in her opening statement, this did not stop prosecutors from summoning people who had lost limbs, or family members, in the bombing. Some entered the courtroom in wheelchairs, others on prosthetic legs. With astonishing composure, they described how their bodies had been damaged by shrapnel from the blast. Before-and-after photographs are potent exhibits for prosecutors as well, and as William Campbell testified about how his twenty-nine-year-old daughter, Krystle, was killed, jurors saw a photograph of her at her First Communion, wearing a fluffy white dress.
After every witness, Clarke murmured, “We have no questions.” Sometimes she thanked witnesses for their testimony. To cross-examine them would have been pointless, even offensive. “Defense attorneys have a fraught relationship with victims—not just in an individual case but almost as a metaphysical concept,” Reuben Camper Cahn, who runs the federal defenders’ office in San Diego, told me. “You’ve got to be respectful and aware of them, but at the same time you’ve got to focus on your client.” Cahn worked with Clarke on the defense of Jared Loughner, and says that she is “especially good at remaining open to the suffering of the victims, and thinking about how each move that she and her colleagues make will be perceived not just by jurors but by victims.”
In the Tsarnaev case, Clarke was joined by Miriam Conrad, the federal defender in Boston, and David Bruck. They maintained a quiet intimacy with their client. Some nights when court was in session, Tsarnaev slept in a holding cell in the bowels of the courthouse, allowing him to be closer to Clarke and her team, who stayed at a nearby hotel. But Tsarnaev wasn’t easy to manage. Each day, he sauntered to the defense table and slouched in his chair, his rangy limbs arrayed in a posture of insouciance, like a kid behind the wheel of a lowrider. Some commentators felt that Tsarnaev was smirking, though his lawyers noted in court that his features had been slightly twisted by nerve damage sustained when he was shot in the face by the police.
One witness, a broad-shouldered man in his thirties named Marc Fucarile, had lost a leg in the blast; he revealed that he might yet lose the other. Prosecutors projected X-rays of his skeleton, and the dark spaces between his bones were perforated by bright-blue dots: BBs and other shrapnel that remained inside him. Fucarile, who had undergone nearly seventy operations, was in a wheelchair, but he glared at Tsarnaev as though he might launch out of the witness box and throttle him. Tsarnaev refused to look at him.
Clarke sat on Tsarnaev’s left, and Conrad, an animated woman in her fifties, sat on his right, so that the jurors always saw him flanked by women. They whispered and exchanged little jokes with him, and they touched him—a pat on the back, a squeeze of the arm. This was deliberate: like the Pope stooping to embrace a disfigured pilgrim at St. Peter’s, the women were indicating that Tsarnaev was not a leper. Such gestures weren’t aimed only at jurors. A training guide that Clarke helped prepare for defense attorneys in 2006 notes, “In capital cases, appropriate physical contact is frequently the one gesture that can maintain a defendant’s trust.” Under the terms of his confinement, Tsarnaev was not permitted to touch any visitors, even relatives, so the casual contact of his attorneys likely represented his only remaining form of tangible human connection.
The centerpiece of the government’s case was a montage of photographs and videos taken on the day of the bombing. One image, captured shortly before the first blast, shows a family of five from Dorchester watching runners cross the finish line. Just behind them, semi-obscured by a tree, stands Tsarnaev, in a backward baseball cap. On March 5th, the family’s father, Bill Richard, a slim, haunted-looking man, took the stand. After the bomb blast threw him across the street, he recalled, he scrambled to find his children. He located his eleven-year-old, Henry, who was unharmed, and then saw his seven-year-old, Jane, lying by the tree. He picked her up, but her leg did not come with her. “It was blown off,” he said. Bill saw his wife, Denise, hunched over their eight-year-old son, Martin, who had been closest to the blast. Bill wanted to help care for Martin, but his daughter was losing blood so rapidly that she was not likely to survive unless he got her to an ambulance. He took one final look at Martin. “I knew he wasn’t going to make it,” Bill said. “From what I saw, there was no chance.”
He ran to an ambulance, and Jane survived. Denise was blinded in one eye. While jurors and spectators wept, a medical examiner described the blast’s impact on Martin’s body. Wearing rubber gloves, he held up the shorts that Martin had been wearing. They could have been long pants, he said—it was hard to tell. The fabric had melted.
This was an act of terrorism, surely, and prosecutors characterized the Tsarnaevs as jihadists who set out to kill American civilians in the name of radical Islam. Investigators had retrieved from Jahar’s laptop a downloaded copy of Inspire, a publication associated with Al Qaeda, which featured an article titled “Make a Bomb in the Kitchen of Your Mom.” In the Tsarnaevs’ family apartment in Cambridge, the F.B.I. had discovered the residue of explosives. Prosecutors also had what amounted to a confession from Jahar. Believing that he was dying in the dry-docked boat, he had written a message in pencil on the fibreglass interior.
Initially, the government wanted to remove the section of the boat bearing the confession and display it in court. The defense objected that the jury needed to see Jahar’s message in its full context. This was vintage Clarke. When she represented Ted Kaczynski, she felt that the jury should see the cramped shack in the Montana wilderness where the Unabomber had built his letter bombs and composed his manifesto. The shack was hauled to Sacramento on a flatbed truck. One day in March, Judge O’Toole accompanied the lawyers, the jury, and Tsarnaev to a warehouse where the boat sat, raised, on a trailer. The boat was streaked with Tsarnaev’s blood and riddled with more than a hundred bullet holes.
“God has a plan for each person,” Tsarnaev wrote. “Mine was to hide in this boat and shed some light on our actions.” He was “jealous” of Tamerlan for having achieved martyrdom. “The U.S. Government is killing our innocent civilians,” he added, noting that “Muslims are one body, you hurt one you hurt us all.” The note was difficult to read, because bullets had ripped through it. But near the end Tsarnaev wrote, “I don’t like killing innocent people it is forbidden in Islam but due to said [bullet hole] it is allowed. All credit goes to [bullet hole].”
For all the putative radicalism of these sentiments, there was an inescapable sense, even as the government presented its case, that Jahar Tsarnaev was less a soldier of God than a wayward child, curiously detached from his terrorist acts. He was hardly ascetic: at the University of Massachusetts-Dartmouth, where he was a sophomore, Jahar was known as a pot dealer. Less than an hour after the bombs exploded, surveillance cameras at a Whole Foods in Cambridge captured him selecting a half-gallon of milk, paying for it, leaving, then returning to exchange it for another half-gallon. Hours after the bombing, he tweeted, “Ain’t no love in the heart of the city. Stay safe people,” and, “I’m a stress free kind of guy.” He went with a friend to the gym. It was precisely this eerie remove that had led authorities to identify him as a suspect. F.B.I. officials, examining surveillance footage of the marathon, noticed a man in a baseball cap who did not react when the first blast sent everyone else scrambling.
Clarke isn’t a notably original legal theorist. The course that she has taught at Washington and Lee is a practicum focussed on the rules and tactics of lawyering. She appeared twice before the Supreme Court before she was forty, in cases involving technical matters of criminal procedure—and lost both, unanimously. Still, in one of the cases, she paused to explain the subtleties of an obscure point of criminal law, and she clearly knew more about it than the Justices did. In a guide that Clarke prepared for federal defense lawyers, she invoked Thomas Edison’s formula for genius: “ninety-nine per cent perspiration and one per cent inspiration.”
In a capital case, much of the exertion involves detective work. Collaborating with investigators and mental-health experts, Clarke assembles a “social history”—a comprehensive biography of the client, often drawing on decades of family records. She tracks down relatives, teachers, neighbors, and co-workers, looking for signs of mental illness or instability in the client’s past. Such interviews, Clarke wrote in a court filing in 2013, can be “invaluable in building the case for a life verdict by documenting the nature, extent, and consequences of trauma.”
By searching for what Tina Hunt called “the key that turns the lock,” a capital-defense attorney operates on the broad assumption that the perpetrators of terrible crimes are also victims themselves—indeed, that only victims of mental illness or awful circumstances could commit such crimes. “Nobody starts out as a killer,” Jonathan Shapiro said. “These folks are damaged goods when they come to us. They’re like a tangled-up piece of cloth. And our job is to try to untangle it, to figure out what made them the way that they are.” Clarke has said that most of her death-penalty clients have endured “unbelievable trauma,” and that “many suffer from severe cognitive-development issues that affect the core of their being.” She often invokes a mantra of capital-defense work: “None of us, not any one of us, wants to be defined by the worst day or the worst hour or the worst moment of our lives.”
You can oppose the death penalty on any number of grounds and still find this assertion curious. If we mustn’t judge someone who kills a child for his willingness to kill a child, isn’t that essentially saying that we should never judge anyone at all? I wondered if this line of reasoning was truly an article of faith for Clarke. Indeed, you might think that spending time with killers would disabuse a lawyer of any illusions about the virtues of humanity. But a dozen of Clarke’s friends and colleagues assured me that she ardently believes in the essential goodness of each client. “She has a well of compassion that just runs a little deeper,” Elisabeth Semel said.
Clarke goes to unusual lengths to establish bonds with her clients. “Many lawyers will go in to meet with the client, and if the client doesn’t want to talk they’ll give up and leave,” Laurie Levenson, a professor at Loyola Law School, said. “If Judy goes and they don’t want to talk, she’ll come back the next day and the day after that.” David Bruck once told the Times that Clarke is a preternatural listener: “Even people who are quite mentally ill can identify someone who is real and who wants to protect them.” When Clarke met with Jared Loughner, who suffers from paranoid schizophrenia, he threw chairs at her, lunged at her, and spat on her. (In court, Clarke and her colleagues downplayed these outbursts, arguing, in effect, that this was just Jared being Jared.) Before the Boston trial, Clarke went to the Caucasus, along with a Russian-speaking colleague, in order to meet Tsarnaev’s parents. This labor of empathy can be consuming. In Bruck’s words, “The client becomes her world.”
Clarke’s husband, Speedy Rice, is also a death-penalty opponent. In 2009, he helped defend a Khmer Rouge torturer, Kaing Guek Eav, in a war-crimes trial in Cambodia. (Kaing received life imprisonment.) Clarke and Rice have always had dogs—including a blind-and-deaf pug—but they have no children. Several of Clarke’s friends suggested to me that it would have been impossible for her to raise kids and maintain the pace of her work.
Because Clarke’s cases unfold in federal courts across the country, the decision to take on a new client can mean months away from home. With the exception of the Susan Smith case, all Clarke’s capital cases have been federal. Most death-penalty prosecutions occur at the state level, where innocent people have often been condemned to death. In such states as Alabama or Texas, there are not enough capable death-penalty lawyers, and even strong ones cannot secure adequate funds to prepare a case properly. In state cases, a defense counsel is sometimes given an investigation budget of only a thousand dollars; attorneys’ fees can be capped at as little as thirty thousand dollars, even when a case demands more than a thousand hours of lawyering. “People who are well represented at trial do not get the death penalty,” Justice Ruth Bader Ginsburg once said.
Federal death-penalty prosecutions are far rarer, and tend to be reserved for cases, like Tsarnaev’s, in which the government has strong evidence of guilt. Often in these cases, defense attorneys are paid more and have latitude to hire experts, investigators, and additional attorneys. Though no figure has yet been released, Tsarnaev’s defense could cost millions of dollars in public funds.
To one way of thinking, a talented attorney who fiercely opposes the death penalty should concentrate on saving defendants who may be innocent. Reuben Camper Cahn said, “For a utilitarian, is there an overconcentration of talent and resources in the federal system? Yes.” People who know Clarke explained her focus on federal cases by citing the severe financial constraints on capital-defense attorneys in the states where most executions take place.
In Boston, Clarke had ample resources, but she was hamstrung by another restriction: official secrecy. The government, citing the ongoing security threat that Tsarnaev might pose by communicating with co-conspirators—or by inspiring impressionable people to follow his example—invoked a protocol, known as Special Administrative Measures, that forbade the defendant from communicating with anyone outside his legal team and his immediate family. Secrecy also enveloped the legal process: many of the voluminous motions and filings made by both the government and the defense were sealed from the public record. Judge O’Toole granted the secrecy and explained his rationale in a series of rulings. But they, too, are secret. Matthew Segal, an attorney with the A.C.L.U. of Massachusetts, told me that the scale of official secrecy in the case was “extremely high” and hard to justify, given that Tsarnaev was “the lone surviving member of a two-person cell.”
On April 8th, the jury convicted Tsarnaev of all thirty counts in the indictment. During the guilt phase, the defense had called only four witnesses, all technical experts, who demonstrated that the fingerprints on the bombmaking tools were Tamerlan’s, and that, according to cell-phone records, while Tamerlan was purchasing pressure cookers and BBs, Jahar was far away, at college. On cross-examination, Clarke and her colleagues showed that radical-Islamist material constituted only a fraction of Jahar’s Internet diet. (He most often visited Facebook.) Tweets by Jahar that the government had presented as indications of extremism were shown to be rap lyrics or references to Comedy Central shows. The man who was carjacked by the brothers, Dung Meng, recalled Tamerlan boasting about bombing the marathon and shooting the M.I.T. police officer; Jahar was quiet, asking only if the car stereo could play music from his iPhone.
For the penalty phase, Clarke and her colleagues summoned more than forty witnesses to tell Jahar’s life story. He and his parents had come to America in 2002, and were later joined by his two sisters and Tamerlan. The family had applied for political asylum, citing Russia’s wars in Chechnya. The parents, Anzor and Zubeidat, were attractive and ambitious but volatile: Anzor, who found work as a mechanic, suffered from night terrors; Zubeidat was by turns smothering and neglectful. The Tsarnaevs lived in a cramped apartment in Cambridge, and their immigrant hopes gradually eroded. Jahar’s sisters married young; each had a child, got divorced, and returned home. Tamerlan failed in his efforts at a professional boxing career, and at everything else he tried. He married an American, Katherine Russell, and they soon had a child. She and the baby joined the others in the apartment.
By 2010, Zubeidat and Tamerlan had become immersed in Islam—not the largely moderate form that is practiced in the Caucasus but a strain of Salafism that had taken root on the Internet. Tamerlan, who was unemployed, stayed at home with his child while his wife worked, and he spent hours watching inflammatory videos of atrocities suffered by Muslims abroad. In 2012, he travelled to Dagestan for six months, hoping to participate in jihad, though he apparently whiled away most of his time in cafés, talking politics. (According to the Boston Globe, Tamerlan heard voices and may have suffered from undiagnosed schizophrenia.)
Clarke’s portrait of Jahar Tsarnaev was reminiscent, in some ways, of the one she helped construct for Zacarias Moussaoui. In that trial, defense testimony focussed on the dislocation that Moussaoui had faced as a Moroccan in France, and on his tumultuous upbringing; his father, a boxer, was abusive, and ended up in a psychiatric institution. Moussaoui’s sister, Jamilla, testified that he was the “sweetheart of the family.” Jahar Tsarnaev was the sweetheart of his family—a doe-eyed, easygoing child who adored his older brother, made friends easily, and seemed to acculturate to American life more quickly than his relatives did. He did well in school, skipping the fourth grade and becoming captain of his high-school wrestling team. Several tearful teachers took the stand and described him as bright and gentle.
By the time he started college, however, his family was falling apart. His parents separated, and both eventually left the country. Tamerlan, meanwhile, was becoming more radical, walking around Cambridge in the kind of flowing white robe one sees in Saudi Arabia.
Neither the government nor the defense claimed that the brothers were part of a larger conspiracy; rather, in Clarke’s awkward phrasing, Tamerlan “self-radicalized” through the Internet. The question at the heart of the defense was whether Jahar did, too. In college, he spent evenings getting high and playing video games with friends. Photographs exhibit a painfully American banality: cinder-block dorm rooms, big-screen TVs, mammoth boxes of Cheez-Its. Several of Jahar’s friends testified about his kindness. Whereas Tamerlan lectured anyone who would listen about U.S. imperialism and the plight of Muslims abroad, Jahar rarely discussed politics. Some of his close friends didn’t even know that he was Muslim. The prosecution said that he was living a “double life.” But it was hard to imagine, looking at a photograph of him lounging on a top bunk, how he hid a life of religious devotion from his dorm-mates.
The defense argued that Jahar didn’t engineer the terrorist plot. Tamerlan bought the bomb materials, made the bombs, and shot Officer Collier. In Chechen culture, one defense expert testified, an older brother is a dominant personality whom the younger brother must obey. A cognitive scientist testified that teen-aged brains are impulsive, like cars with powerful engines and faulty brakes.
This line of argument echoed the successful defense in a 2002 case that Clarke was not involved in: the prosecution of Lee Malvo, who, at seventeen, had accompanied a deranged father figure, John Allen Muhammad, on a shooting spree around Washington, D.C., which left ten people dead. Muhammad was put to death, but Malvo got a life sentence. Like Malvo, Tsarnaev was young, had no history of violent conduct, and fell under the spell of a charismatic mentor. Malvo, his lawyer maintained, could “no more separate himself from John Muhammad than you could separate from your shadow.” It was a Pied Piper defense, and Clarke was mounting a similar argument. One of Tsarnaev’s teachers, whose husband had been his soccer coach, testified, “He’s very coachable. He would do what the coach said.”
Zacarias Moussaoui, a genuine zealot, was given to outbursts during his court proceedings, in which he condemned America and the case against him. Jahar Tsarnaev sat silently at the defense table, occasionally reaching for a carafe of water to refill his attorneys’ cups. There was such dissonance between the grotesque crime and the mild-mannered perpetrator that, outside the courtroom, an avid group of supporters, many of them young women, maintained that he must be the victim of a frameup. “It’s a defense you don’t often have recourse to in these types of cases: ‘He was a good kid, one of ours,’ ” Carol Steiker, a death-penalty specialist at Harvard Law School, told me. “He also reads as white, which is very helpful in these kinds of cases.”
Spectators in the courtroom could see mainly the back of Tsarnaev’s head, but, in overflow rooms for the press, closed-circuit monitors afforded a better view. One of the cameras in the courtroom was positioned to approximate the judge’s view from the bench. David Bruck objected that the camera violated the defense team’s “zone of privacy,” but the camera stayed, offering an intimate perspective of Tsarnaev’s detachment. He whispered and sometimes smiled with his attorneys, but he avoided looking at the witnesses, instead examining his fingernails or doodling. “I really miss the person that I knew,” one of his college friends, Alexa Guevara, said, through tears, on the stand. She tried mightily to catch his eye, but he would not meet her gaze.
Tsarnaev broke this mask of indifference only once. His aunt Patimat Suleimanova came from Dagestan to testify. But when she took the stand she was immediately convulsed by sobs. Tsarnaev dabbed tears from his eyes until she was escorted from the stand. This marked, in some ways, a promising development for the defense—a signal that the defendant had feelings, after all, and that his death would devastate his family. At the same time, it underscored Tsarnaev’s implacability during weeks of harrowing testimony about the devastation he had caused.
Clarke, in her opening statement, said that Jahar’s terrorist path was “created” and “paved by his brother.” If he had fallen under the sway of a violent older sibling, it seemed logical that Tsarnaev, after two lonely years in prison, might feel remorse. Of course, a defendant’s posture in the courtroom is an imperfect proxy for his state of mind. But Tsarnaev’s demeanor betrayed no contrition.
This was critical because, according to studies, capital juries are heavily influenced by whether or not the defendant shows remorse. To prove that Tsarnaev was untroubled by his crime, the prosecution presented a still image taken by a surveillance camera in a holding cell in the courthouse. The image was captured on the day of his arraignment, several months after the attacks. Tsarnaev wears orange scrubs and scowls at the camera, his middle finger raised. “This is Dzhokhar Tsarnaev, unconcerned, unrepentant, unchanged,” one of the prosecutors said. The defense immediately moved to show the jury the video from which the still was taken, and it emerged that Tsarnaev had aimed other gestures at the camera, including a two-fingered gang sign, in the casual pose of a teen-ager on Instagram. The camera had a mirrored surface, and he carefully tousled his hair.
To rebut the idea that Tsarnaev was remorseless, Clarke played one final card. She summoned Sister Helen Prejean, who explained that, before the trial, the defense had brought her to Boston to meet Tsarnaev. Her first thought upon seeing him was “My God, he’s so young.” They met five times over the course of the trial, Prejean explained, and in one conversation they talked about the victims. According to Prejean, Tsarnaev said, “No one deserves to suffer like they did.” She added, “I just had every reason to think that . . . he was genuinely sorry.”
When Clarke first considered representing Susan Smith, she called Rick Kammen, a death-penalty lawyer she knew, for advice. “Every time you take one of these cases, you have to be prepared to see your client executed,” Kammen said. Many lawyers try one capital case, then never do another. Those who persist often burn out, or turn to alcohol or drugs. Clarke’s colleagues say that, to maintain her sanity, she relies on her husband, devoted friends, and wry humor. She still runs to clear her head.
The process of preparing a social history for a client is prone to artificial determinism: decades-old tragedies are portrayed as harbingers of recent behavior. When I asked Clarke’s friends and colleagues to explain why she is so devoted to what she does, there was a uniform flatness to their answers: Clarke is deeply compassionate, and has always been that way. But if Clarke were preparing her own social history she might underline one particular episode from her past.
Her father, Harry Clarke, was a conservative Republican who wanted to impeach the Supreme Court Justice Earl Warren and was an early supporter of Senator Jesse Helms. The Clarke children were encouraged to debate ideas at the kitchen table, but there were limits. In 1972, Judy and her younger sister, Candy, told their mother, Patsy, that they intended to vote for George McGovern. Patsy was so shocked that she didn’t tell their father. In 1987, when Judy was living in San Diego, Harry died, after the single-engine plane he was flying home from a business trip crashed, near Asheville. Clarke had been close to her father and never felt that being a defense attorney was incompatible with his principles. Three years after his death, she told the Los Angeles Times that she was an absolutist when it came to the rights guaranteed in the Constitution. “Yes, I’m a defense lawyer,” she said. “But I think I have very conservative values.”
Judy’s older brother, Bruce, also became a lawyer, and Candy became a high-school teacher. Her younger brother, Mark, moved to Florida after college and became a lifeguard. In 1992, he told his mother that he was gay and dying of AIDS. Patsy, who considered herself a proper Southern conservative, was shocked, but she devoted herself to caring for him. Judy went to Florida to support Mark, and he died in the spring of 1994.
Upon Mark’s death, Patsy grew frustrated that the family’s old friend Jesse Helms had been blocking funding for AIDS research, claiming that gay men had brought the scourge upon themselves. Patsy later wrote a memoir, in which she recalls Judy telling her, “You ought to write to Senator Helms about Mark.” Patsy did so, asking that he not “pass judgment on other human beings as ‘deserving what they get.’ ”
Two weeks later, Helms replied. “I wish he had not played Russian roulette in his sexual activity,” he wrote of Mark. “I have sympathy for him—and for you. But there is no escaping the reality of what happened.”
Patsy was so incensed that she launched a grassroots campaign, along with other mothers of AIDS victims, to oust Helms from the Senate. Judy also seems to have been galvanized. Several months after Mark’s death, she joined her first capital case, defending Susan Smith. “Judy was Judy before Mark died,” Tina Hunt said. “But it may have intensified her drive for justice and for accepting people for who they are.” Then she chuckled and added, “If anything could make Judy more intense.”
Watching Tsarnaev in court, I sometimes wondered if Clarke was trying to save someone who didn’t want to be saved. Perhaps he still envied Tamerlan’s martyrdom. In death-penalty work, clients often come to desire a swift end. They may be suicidal, or hopeless, or insane; they may have made a considered decision that death by lethal injection would be preferable to a lifetime of solitary confinement. Such clients, known as “volunteers,” present death-penalty lawyers with a dilemma. An attorney’s job is to advocate vigorously for a client’s interests. But there may come a point at which that duty diverges from the imperative to save the client’s life.
In 2007, Clarke took the case of Joseph Duncan, a drifter who had kidnapped two children—Dylan and Shasta Groene—in Idaho, after using a hammer to murder their older brother, their mother, and her boyfriend. Clarke joined the defense late, after another attorney had left the case. According to Tina Hunt, who was in the Spokane office at the time, “The crime was so devastating that he could not emotionally handle it.” He was a “phenomenal trial lawyer,” Hunt said. “But he wasn’t Judy.”
After taking the two children to a remote campsite, Duncan had videotaped himself raping and torturing Dylan. He then forced Shasta to watch the video, before killing her brother in front of her, with a shotgun. Duncan was on a mountainside, about to bludgeon Shasta’s head with a rock, when it occurred to him, in what he later called “an epiphany,” that killing is wrong. He drove down the mountain with Shasta, and not long afterward a waitress at a local Denny’s recognized them and summoned the police.
Clarke spent hours talking with Duncan. She later characterized his ramblings as “head-spinning” and “crazy”—he seemed to have dissociative-identity disorder—but she remained patient. “Are you frustrated with me because I don’t understand?” she would ask. Clarke planned to center her defense on the fact that Duncan had been locked up, at the age of sixteen, in a facility for adult sexual offenders. But Duncan refused to introduce any mitigating evidence about his childhood. Instead, he wanted to take full responsibility for his actions. He was eager to make sure that Shasta would not have to undergo the trauma of appearing on the stand. He wanted to plead guilty and waive his right to appeal. “Tell me you’re not on a suicide mission,” Clarke said to him, according to a subsequent deposition. She suggested to Duncan that if killing was wrong he should not allow the state to kill him. But it was no use. Clarke moved to withdraw from the case. “We are not gunslingers who do the bidding of someone who does not have a rational understanding,” she told the judge. Duncan was subsequently sentenced to death. He is currently on death row in Indiana.
Since 1984, capital punishment has been illegal in Massachusetts. Nevertheless, under our federalist system, the Department of Justice can pursue a criminal sanction that a state has judged unconstitutional. Eighteen other states have banned or suspended the death penalty, and the Supreme Court has gradually narrowed the scope of who can receive the punishment, ruling out juvenile perpetrators and people with intellectual disabilities.
You might think that, in a liberal city like Boston, Tsarnaev’s lawyers would not have to address his moral culpability in order to save his life; it would be enough to attack capital punishment itself. In 1999, when Clarke defended the white supremacist Buford Furrow, she argued that the death penalty was unconstitutional. In the Kaczynski case, the defense wrote, “Evolving standards of decency will eventually convince the American public that it is simply wrong and immoral to kill people, regardless of whether the killing is done by an individual or the government.”
In Boston, as the penalty phase began, David Bruck made a dramatic case against the death penalty. He has worked as an attorney or an adviser on scores of capital cases. He showed the jurors a photograph of ADX, the federal maximum-security prison in Florence, Colorado, where several of Clarke’s former clients are held: a series of stark buildings nestled into barren, snow-covered terrain. It called to mind Siberia. If Tsarnaev was spared the death penalty, Bruck explained, he would live a life of near total isolation at ADX. Because of the Special Administrative Measures, he would have no contact with other inmates or the outside world.
If the jury delivered a death sentence, Bruck continued, its decision would surely be followed by more than a decade of appeals, each one accompanied by a new wave of publicity for Tsarnaev and pain for the victims. Only then—maybe—would he be executed. Supporters of the death penalty often argue that it brings “closure” to the victims, but Bruck’s logic seemed unassailable: if you want a sense of finality, send him away. “No martyrdom,” he said. “Just years and years of punishment, day after day, while he grows up to face the lonely struggle of dealing with what he did.”
On April 17th, under the headline “to end the anguish, drop the death penalty,” the Boston Globe carried an open letter from Bill and Denise Richard. “The defendant murdered our 8-year-old son, maimed our 7-year-old daughter, and stole part of our soul,” they wrote. “We know that the government has its reasons for seeking the death penalty, but the continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives.” They urged prosecutors to accept a plea deal for a sentence of life without parole.
Some victims strenuously disagreed with this position. But the prosecution’s most compelling witness was now begging to spare Tsarnaev’s life. Hours after the letter was published, Carmen Ortiz, the U.S. Attorney in Massachusetts, reaffirmed her desire to pursue the death penalty. She was doing so, she said, on behalf of the victims.
Had the jury been selected from a representative sampling of Bostonians, there would have been little possibility of a death sentence. But jury selection in death-penalty cases involves a procedure known as “death qualification,” in which prospective jurors are questioned about their views on capital punishment, and anyone who opposes the practice on principle is disqualified. This makes a certain amount of sense, because a death sentence must be unanimous; if a single juror objects from the outset, the whole proceeding might be a waste of time. In Alabama or Oklahoma, where there is broad support for capital punishment, it is easy to death-qualify a panel of jurors. But in Boston a jury that is death-qualified is also demographically anomalous: according to polls taken during the trial, sixty per cent of Americans favored executing Tsarnaev, but only fifteen per cent of Bostonians did.
During jury selection, a middle-aged restaurant manager was asked if she could deliver a death sentence. “I don’t really feel that I’m sentencing someone,” she said. “It’s like at work—I fire people, and I’m asked, ‘How can you do that?’ I’m not the one doing that. They did it. By their actions. Not coming to work, stealing, whatever.” Elisabeth Semel, the Berkeley professor, notes that, with a death-qualified jury, “you are starting out with a jury that is conviction-prone and death-prone, because if they weren’t they wouldn’t be sitting there.” The restaurant manager became the forewoman of the jury.
On a May morning, as gulls hung on the breeze in Boston Harbor, Clarke addressed the jury a final time. She dismissed the idea of Jahar as a radical, arguing that he had been in his brother’s thrall. “If not for Tamerlan,” she said, the attack “would not have happened.” She played video of Jahar putting his backpack behind the Richard family. “He stops at the tree, not at the children,” she insisted, a little lamely. “It does not make it better, but let’s not make his intent worse than it was.” Clarke called Tsarnaev a “kid” and “an adolescent drawn into a passion and belief of his older brother.” In his confession inside the boat, she argued, he was merely parroting the rhetoric of others. “He wrote words that had been introduced to him by his brother.”
At one point, Clarke nearly conceded the logic of capital punishment. “Dhzokar Tsarnaev is not the worst of the worst,” she said. “That’s what the death penalty is reserved for.” Then again you could argue that if Tsarnaev wasn’t among the worst of the worst Clarke would never have taken the case. And Clarke—who once defended someone who slashed a pregnant woman’s belly and strangled her to death in order to steal the baby from her womb—has devoted her career to the notion that even the very worst should be spared. But she knew that these jurors didn’t oppose the death penalty, so she appealed to their sympathy, repeating the words “us” and “we,” reminding them that they were standing in judgment of one of their own. As her closing neared its crescendo, her normally casual demeanor assumed a frantic urgency, and she gesticulated—pounding her fist, slicing the air—as if she were conducting an orchestra. “Mercy is never earned,” Clarke said. “It’s bestowed.”
Then William Weinreb approached the lectern for a rebuttal. “His brother made him do it,” he said. “That’s the idea they’ve been trying to sell you.” Weinreb observed that Clarke, in her closing statement, had referred to Tamerlan “well over one hundred times.” But Tamerlan was not on trial, and the defense’s evidence had actually revealed that Jahar Tsarnaev was a fortunate child whose family had loved him and given him opportunity. “He moved with his parents from one of the poorest parts of the world to the wealthiest,” Weinreb said. “They were looking for a better life, and they found it.” Weinreb calmly dismantled the social history that Clarke and her colleagues had constructed.
“The murders on Boylston Street were not a youthful indiscretion,” Weinreb said. Clarke had called the killings senseless, “but they made perfect sense to the defendant.” Even Prejean, Weinreb noted, was unpersuasive about Tsarnaev’s sense of remorse. The sentiment he expressed to her was not so different from what he wrote in the boat: it was a pity when innocent people died, even if it was necessary. “That’s a core terrorist belief,” Weinreb said.
Miriam Conrad and David Bruck both fumed and raised objections. Clarke just stared at Weinreb, her chin propped on her left fist, her thumb digging deeper and deeper into her cheek. Earlier, one of Weinreb’s colleagues had cited Emerson: “The only person you are destined to become is the person you decide to be.” Now Weinreb assaulted the belief system upon which Clarke had staked her career. All of us, Weinreb said, should be judged on the basis of our actions. Tsarnaev should be put to death “not because he’s inhuman but because he’s inhumane.”
Before the murderer Gary Gilmore was executed at Utah State Prison in 1976, bullets were distributed to the five-member firing squad; one of them was a blank. This dispersal of moral responsibility is a curious feature of our system of capital punishment: the message is that the state is doing the killing, and therefore no individual is culpable for the death. In lectures, Sister Helen Prejean rebuts this notion by saying, “If you really believe in the death penalty, ask yourself if you’re willing to inject the fatal poison.” In other words, we are all implicated when the state kills.
One common rationale for capital punishment is that it will deter others from committing awful crimes. But there is no evidence that this is the case. (Arthur Koestler once pointed out that when thieves were hanged in the village square other thieves flocked to the execution to pick the pockets of the spectators.) A second justification is that the most violent criminals, even if they are jailed for life, could still endanger others. The government labored to suggest that Tsarnaev might someday be transferred out of seclusion and into the general population at ADX. One defense witness, a former prison warden, observed that, in such an unlikely event, his greatest safety concern would be for Tsarnaev.
The remaining ground for capital punishment is retribution. In a 1957 essay, “Reflections on the Guillotine,” Albert Camus described retaliation as a “pure impulse” that is ingrained in human nature, passed down to us “from the primitive forests.” This does not mean, he argued, that it should be legal. “Law, by definition, cannot obey the same rules as nature. If murder is in the nature of man, the law is not intended to imitate or reproduce that nature. It is intended to correct it.” As Oliver Wendell Holmes put it, retribution is simply “vengeance in disguise.”
Before the jurors began to deliberate, they were issued a questionnaire that asked them to decide whether various “aggravating” and “mitigating” factors had been proved by the government and the defense. Though Judge O’Toole cautioned jurors not to simply tally the check marks and arrive at an answer, the exercise retained an air of sterile arithmetic. Clarke reminded the jury that, however they completed their forms, each of them was making a moral judgment. “This is an individual decision for each of you,” she said. She could not let them think of the jury form the way the restaurant manager thought about errant employees, or the way the firing squad thought about that blank. As Clarke spoke, she looked straight at the forewoman, who glared back at her, arms folded across her chest.
After fourteen hours of deliberation, the jury returned with a death sentence. According to the jury forms, all but three of the jurors believed that, even without the influence of Tamerlan, Jahar would have carried out the attacks on his own. Only two believed that the defendant was remorseful. “Judy would probably say, if the public saw everything she sees, it would look at the client or the case differently,” David Bruck once remarked. But in this instance Clarke had failed to paint a picture of her young client that was moving enough to save him. It may be that she never found the key. During her closing, she said, with frank bewilderment, “If you expect me to have an answer, a simple, clean answer as to how this could happen, I don’t.” Judge O’Toole had warned the jurors not to read anything into the defendant’s manner in court, but Tsarnaev’s inscrutability appears to have hurt him. Most jurors declined to speak with the press, but one of them told the Daily Beast, “My conscience is clear. . . . And I don’t know that he has one.”
Unbeknownst to that juror, and to the public in Boston, Tsarnaev had already expressed remorse for his actions. On June 24th, six weeks after the jury dispersed, Judge O’Toole presided over the formal sentencing of Tsarnaev, and Clarke made a fascinating remark. “There have been comments over time with regard to Mr. Tsarnaev lacking remorse,” she said. “It’s incumbent upon us to let the court know that Mr. Tsarnaev offered to resolve this case without a trial.” Tsarnaev had not simply agreed to plead guilty before the trial, Clarke said; he had written a letter of apology. But it was never shared with the jury, because the government, under the terms of the Special Administrative Measures, had it sealed.
I spoke recently with Nancy Gertner, a former federal judge in Massachusetts who now teaches at Harvard. “This could have been an immediate plea,” she said. “He was prepared to coöperate with the government. Why go through with it all?” In Gertner’s view, there is “no legal justification” for the secrecy surrounding the proceedings, given that Tsarnaev did not appear to pose an ongoing threat. “The classification was based on a premise that this was an international security issue, which is a little dishonest,” she said. It seemed absurd that prosecutors had suppressed Tsarnaev’s letter of apology on the ground that releasing it could be unsafe. (A spokesperson for the prosecutors declined to comment on why the letter was suppressed.)
Gertner offered a hypothesis for why the Justice Department was intent on a death sentence: it might relate to the politics of Guantánamo. Supporters of the detention facility have long argued that American federal courts are not equipped to try terrorists. But here was a case in which a civilian federal court could deliver not just a guilty verdict but the death penalty. Numerous people have been convicted of terrorism in civilian courts since September 11th, but Tsarnaev is the first to receive a death sentence. Gertner said that the trial should not have been held in Massachusetts. If relocating was not appropriate in this case, she observed, when would it be? “They’ve essentially eliminated change of venue for anyone in the country,” she said. The whole trial, she concluded, “was theatre, as far as I was concerned.”
A second juror, a twenty-three-year-old named Kevan Fagan, recently spoke to the press. Asked by the radio station WBUR about the Richard family’s letter opposing the death penalty, he said, “If I had known that, I probably—I probably would change my vote.”
Before Judge O’Toole could deliver the death sentence, Clarke said, “Mr. Tsarnaev is prepared to address the court.” He rose, next to her, wearing a dark jacket and a gray button-down shirt. “I would like to begin in the name of Allah, the exalted and glorious, the most gracious, the most merciful,” he said. He spoke in a thick accent that sounded vaguely Middle Eastern. (Before the bombing, he had sounded more conventionally American.) “This is the blessed month of Ramadan, and it is the month of mercy from Allah to his creation, a month to ask forgiveness of Allah,” he continued.
Turning to Clarke and her colleagues, Tsarnaev said that he wanted to thank his attorneys. “I cherish their company,” he said. “They’re lovely companions.” Then he thanked the jury that had sentenced him to death. The Prophet Muhammad, he noted, had said that “if you are not merciful to Allah’s creation, Allah will not be merciful to you.” Tsarnaev went on, “I’d like to now apologize to the victims.” He recalled that after the bombings he began to learn about the injured and the dead. “Throughout this trial, more of those victims were given names.” When the witnesses testified, they conveyed “how horrendous it was, this thing I put you through.”
Tsarnaev did not look at the many victims who had gathered in the courtroom. He stared straight ahead, his hands clasped around his belt buckle. Clarke sat motionless, watching him. “I am sorry for the lives that I’ve taken, for the suffering that I’ve caused,” he said. He prayed that the victims might find “healing,” and he asked Allah “to have mercy upon me and my brother and my family.” Allah, he said, “knows best those deserving of his mercy.”
Tsarnaev spoke in precisely the language of religious devotion that the prosecutors might have predicted. But people often change considerably between the ages of nineteen and twenty-one. He had spent those two years in solitary confinement, with plenty of time to ponder his actions—and to read the Koran. Throughout the trial, Tsarnaev had been a cipher, and observers wanted him to demonstrate that he understood the gravity of his misdeeds. But I wondered, as he addressed the court, if Tsarnaev was mature enough—or distant enough in time from the bombing and from the death of his brother—to have arrived at a firm evaluation of what he’d done. The Koran, like other holy books, can be read to condemn such acts of violence or to condone them. On a given night, Tsarnaev might fall asleep believing that he would be rewarded in the afterlife, and the next night believing that he would be punished.
Tsarnaev will not be executed anytime soon. Since 1988, seventy-five defendants have been given the federal death penalty, but only three have been put to death. Appeals drag out for decades. Until a California judge ruled capital punishment unconstitutional last year, death-row prisoners there were seven times more likely to die of natural causes than of execution. (A death sentence, the judge observed, should really be called “life in prison with the remote possibility of death.”) The very scenario that Bill and Denise Richard hoped to avoid—the appeals, the publicity, the endless replay of the city’s trauma in the interests of retributive justice—will come to pass. Clarke has been known to say, of a death sentence that has not yet led to execution, “This case has a few miles to go.”
Clarke’s friends say that the loss has been devastating to her. In death-penalty work, Elisabeth Semel told me, you talk not about losing a case but about losing a client. When it happens, she said, “you suffer, and you have to figure out how to pick yourself up.” Clarke, she pointed out, “has never experienced this before.” Tina Hunt, noting that Clarke and her husband don’t have kids, said, “To some degree, these clients are her children.”
Clarke’s friend Rick Kammen told me a story about Millard Farmer, who has represented scores of capital defendants in the South: “Millard would say, ‘Everyone has a certain number of cases in them. You need to quit one trial early.’ And it does take its toll on you, this work.” But without exception the people who know Clarke agree that this will not be her last case—she will pick herself up and keep fighting. Last month, Clarke and her colleagues filed a motion for a retrial, maintaining, once again, that the case should not have been tried in Boston. Bruck recently agreed to represent Dylann Roof, who is accused of murdering nine people in June at a black church in Charleston; Clarke could yet join him in that defense.
Tsarnaev concluded his courtroom remarks with a few final encomiums to Allah. Then he sat stiffly and waited for Judge O’Toole to deliver the death sentence. Clarke reached out and placed her hand on his back. ♦
