The Three Battles of Wanat

by Mark Bowden

  Which may not be immediately apparent, to look at her. Says one old friend, “Her face has always reminded me of a sweet little forest animal,” with small, pinched features and deep-set eyes. She is surprisingly tall and lean, a lifelong runner. She wears her straight brown hair short and flat. She eschews makeup and for court has always dressed in a perfectly sensible female version of standard lawyerly attire: a conventionally cut wool suit, a knee-length skirt, a jacket over a cotton shirt buttoned at the collar, and, for many years, a big floppy silk bow tie, which became her signature if only because most women stopped wearing them twenty years ago. Friends recently tried to talk her out of the bow ties, but she said she could not be bothered. Knowing exactly what to put on each morning saved her having to think about it, she explained, but in Boston during the early stages of the Tsarnaev trial the bow tie was gone, replaced by a black turtleneck or simply an open collar. Her manner, like her choice of clothing, is deliberately understated. In photos, she often looks pensive, even severe—eyes averted, mouth pursed—but her friends say she is the opposite in private: animated, with a warm sense of humor, someone who enjoys lifting a beer and telling a story, someone who laughs often. In court she is more earnest than clever. She impresses more with impeccable preparation and sincerity than with oratory. With judges and juries and before a classroom, her tone is conversational, genuine, and direct. She is, all in all, more inclined to listen than to speak.

  And yet argument is a big part of her character. Judy Clarke grew up one of four children in Asheville, North Carolina, part of an extended family of Republicans fond of spirited disputation. Parents, grandparents, and siblings would gather for supper around a large custom-built oak table, where opinions kept easy pace with the corn bread and gravy. Her parents, Harry and Patsy, sometimes hosted John Birch Society meetings in their living room. They were strong supporters of the late North Carolina senator Jesse Helms until their youngest son, Mark, died of AIDS in 1994 and Helms, who was hateful on the subject of homosexuality, spurned an appeal from Patsy for more research funding to combat the disease, expressing sympathy for her in a return letter, but condemning Mark for having “played Russian roulette in his sexual activity.” Patsy wasn’t just hurt and angry. She cofounded an organization called “Mothers Against Jesse in Congress,” which raised money and worked unsuccessfully to deny him reelection in 1997.

  “We debated a lot in the family,” Clarke told a reporter for the Spokane (Washington) Spokesman-Review in 1996. “We were very vocal, and we always took positions…. From about the sixth or seventh grade, I wanted to become either the chief justice of the Supreme Court or Perry Mason. One summer when I was young, my mother wanted to teach my sister [Candy] and me crocheting and the Constitution. She says that for my sister, the crocheting stuck, and for me, the Constitution stuck.”

  Judy and Candy had put the family’s right-wing politics behind them before leaving home—they had both secretly voted for George McGovern in the 1972 presidential election. Judy migrated farther south to attend Furman University and then the University of South Carolina law school, and after graduating, in 1977, moved west to take a job with the public defender’s office in San Diego, where she and her husband, Thomas H. “Speedy” Rice, also a lawyer and law professor, had decided they wanted to live. New lawyers were asked to sign a “blood letter” when they started, promising to work sixty-hour weeks, which for Clarke was apparently no stretch. Childless, she has earned a reputation through a long career for working heroically long hours and for pushing her staff with unrelenting, almost martial, discipline. She would eventually lead the public defender’s office in San Diego, and later the one in Spokane, Washington, and as boss not only drove her staff hard at work but pushed them to adopt a regular fitness regimen away from it. Those so inclined were encouraged to join her at dawn for a daily four-mile run.

  “I like to fight,” she told the Los Angeles Times in 1990, when, as the San Diego public defender, she took a $50 fine for a misdemeanor related to smuggling aliens across the border all the way to the U.S. Supreme Court—United States v. German Munoz-Flores. In the end she lost the case, but she enjoyed the scrap. “I love the action,” she said. “I like the antagonism. I like the adversarial nature of the business. I love all of that. I think that’s the fun stuff. Especially when it’s over an issue that I think is of significance to all of us, and that’s our freedoms, our individual liberties.”

  To her, this devotion to civil liberties is deeply rooted in her conservative upbringing. She bristled, in that interview for the alumni magazine, at being characterized as a liberal. “I don’t know but what my opinions have been the most conservative in the world,” she said. “What does it take to be an absolute supporter of what the Constitution says? That’s hardly liberal. I don’t smoke dope. I don’t snort cocaine. I’m not into drugs. You associate that with a liberal view of a lawyer. I’m not into that…. Yes, I am a defense lawyer but I think I have very conservative values.”

  Clarke first came to national attention in 1994, when she helped defend Susan Smith. After drowning her two small boys in a South Carolina lake, Smith made up a story for the police about having been carjacked by a “black man.” She aggressively maintained the fiction for a week in television appearances, appealing for the boys’ release.

  Clarke and attorney Lesley “Lee” Coggiola met when Clarke showed up in Columbia to help with Smith’s defense and needed a place to stay. Coggiola’s daughter had just left for college, so she offered the vacated room. She also warned Clarke, “I have these teenage boys [four], and dogs [two] and cats [three].”

  “Sounds great; I’ll be there,” said Clarke.

  “So she moved in and lived with me off and on for that year,” Coggiola recalled. “And the kids loved her and the dogs loved her and the cats loved her, and her husband, Speedy, came periodically and stayed there, and the trial consultant came and stayed there, and various law clerks came and stayed there. It was quite a year.”

  In the middle of it, a student from Cornell University showed up at the front door when Clarke was home alone. Coggiola had promised to provide housing, and then had forgotten about it. Clarke answered his knock.

  “Well, come on in,” she said. “We’ll find a place.”

  During the months she spent with Coggiola, Clarke got up every morning for her run and then would be gone all day. Many evenings she didn’t come back to the house until very late, as she and her team went about reconstructing their troubled client’s past. This involved long hours of listening sympathetically to Smith in the county lockup, eliciting her story in excruciating detail, and then tracking down family members, old friends, first-grade teacher, second-grade teacher, Girl Scout troop leaders, and more. There was plenty to discover: Smith’s biological father had committed suicide when she was six. She had been molested by her stepfather—an intimate relationship that had continued secretly into adult life and her marriage (a revelation that came as a terrible shock to Smith’s mother). Smith had twice attempted suicide as a teenager. There had been multiple infidelities and splits with her husband. There was an ongoing affair with yet another man. There may have been no doubt, once the fiction of a black kidnapper was abandoned, that Smith had drowned her two small boys, but the story grew ever more complex. How could anyone, Clarke argued, fail to see reasons why Smith had so cruelly lost her bearings? In the months before trial, as Clarke lived upstairs in the busy Coggiola household with the teenagers and dogs and cats and law clerks, came selective leaks and interviews with sympathetic family members to the press, bits and pieces of Smith’s troubled past, leaks that began to chip away at the image of Susan the monster and to reveal something more like Susan the victim.

  Tommy Pope tracked all of this closely. He was the county prosecutor, solicitor for the Sixteenth Judicial Circuit (York and Union counties), no rube but a good old boy nevertheless, a man with a viscous local drawl serving the community where he had been born and raised, and where he now h
elped teach Sunday school and coach Little League. Clarke and her cocounsel, David Bruck, took Pope to school.

  “I think I did an average job,” Pope told me, looking back from the perspective of two decades. “I guess people expected dueling banjos and the redneck sheriff…. The bar was set so low that when Tommy here jumped over it they thought he was brilliant. But I am not a yin to their yang. I am not a death-penalty zealot. There are plenty of prosecutors that—I hate to say it is like a bloodlust, but you know what I mean: they’ve got to get the death penalty, got to get the death penalty. And I saw it as part of my job, almost like a soldier. Just because I have to go kill, does not mean I relish it. But again, I am not backing down from my duty either.”

  The way Pope saw it, if the Smith boys’ father had drowned them, or if the story about a black carjacker had been true, then his community would have howled for the executioner. So was he supposed to go easy on Susan Smith because she was a pretty young white woman? How would that look? Besides, he saw Smith as a stone-cold killer, a promiscuous young wife who had betrayed her husband and her mother, who had sized up her children as obstacles to her future happiness with another man, and so she had killed them and then constructed an elaborate lie—acted out vividly in public—to cover her tracks.

  He was not fully prepared for the complete focus and determination of Clarke and Bruck. In retrospect, he sees that he was outmaneuvered from the beginning, in ways large and small. “They really start way ahead of the courtroom,” he said. “I was ready to try the case by January. In other words, three months after it happened, I was pretty much ready to go to trial. And they made some motions to say that they were not particularly ready, and we ended up trying it that summer.” In retrospect, the delays proved critical for remaking the image of the accused. In the interim, Pope said, he felt honor-bound by his position not to comment on the case. Susan’s defenders did not feel so bound. “I cannot answer publicly what Susan’s mama says on Dateline the week before the trial,” he said. He was surprised when Clarke did not ask the judge to move the trial from Union County; and he didn’t seek a change of venue himself—only to realize later that nowhere had all of the leaked details of Smith’s life story been more avidly consumed than at home, by the community that would deliver up her jury. He did not contest the defense request to bar cameras from the courtroom, fearing that if he argued for them he would be accused of grandstanding and trying to further his political career. (Pope has since been elected to the state legislature.) Looking back, he would love to have had cameras to catch how Smith giggled and played tic-tac-toe during the trial breaks, only to resume sniffling into a tissue when the jury was ushered back in. Once the trial began, there was no way for the death-seeking prosecutor to compete for geniality with Clarke’s principled compassion, and she wasted no opportunity to make the contrast plain.

  “I think she and David probably played a little good cop–bad cop kind of thing,” Pope told me. “In other words, he was kind of softer-spoken; she was more aggressive. Like when she would make statements, she would come over and kind of bang on our table and look us in the eye, all for dramatic effect I am sure.”

  Coggiola remembers a moment in the trial when Pope, whose disdain for Smith was palpable, and who can be caustic, said or snorted something dismissive as a defense witness grew weepy on the stand. Clarke turned and glared at him. “Shame on you,” she said.

  “I just remember us doing the glare down at each other,” he recalled.

  Clarke made an impassioned plea to the jury on Smith’s behalf, according to the 1996 Spokesman-Review story, arguing, “This is not a case about evil. This is a case about despair and sadness.” She conceded that Smith had made bad choices and bad 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 confusion is not evil, and hopelessness is not malice.”

  In the end, Pope lost. And he is not surprised he lost. He respects Clarke’s skills as a lawyer, but calls her what he says he is not, a “zealot.” She brought a level of determination he could not match, and a willingness to do whatever it took to save her client. Smith was sentenced to life in prison, which, Pope is quick to point out, will not actually mean life in prison, because under South Carolina law she will be eligible for parole in 2024.

  There were such hard feelings in South Carolina over the carpetbagger defender’s success in this case, Clarke’s Carolina roots notwithstanding, that some in the state legislature sought to ban payments to out-of-town lawyers in such cases. Clarke promptly returned her court-awarded fee—$82,944.

  Judy Clarke spoke last April at a small legal symposium in Los Angeles. She declined to answer questions from the audience, and according to a news report, was “reticent” throughout. But she referred back to the Susan Smith case, noting that it was the reason she had been “sucked into the black hole, the vortex” of death-penalty cases.

  “I got a dose of understanding human behavior and I learned what the death penalty does to us,” she said. Clarke argued that most of those who commit heinous acts “have suffered from severe trauma, unbelievable trauma. We know that from brain research. Many suffer from severe cognitive development issues that affect the core of their being.” In other words, “most” of those who commit these terrible crimes, the worst of the worst, are not evil; they are sick.

  She is not alone in thinking this way. Dr. Dorothy Otnow Lewis, a professor of psychiatry at New York University, has been studying inmates on death row for years. In her 1998 book Guilty by Reason of Insanity, and in medical journals since, she argues that on death row a history of brain trauma and of mental illness is a constant. One study of fifteen death-row inmates that she conducted with Dr. Jonathan H. Pincus, chief of neurology at the Veterans Administration hospital in Washington, found that every one of them had suffered head injuries in childhood or had received brain injuries in violent assaults. Her work is not considered to inhabit an obscure or extreme scholarly fringe. It has been cited by the Supreme Court three times, most notably in a 1992 dissent by Justice Thurgood Marshall in a decision that allowed the execution of a brain-damaged killer, Ricky Ray Rector.

  The insanity defense has been around for many centuries, and has long turned on whether the accused was capable of understanding what he was doing. A person who killed while sleepwalking, say, or in the grip of a profound hallucination, would not be guilty of having knowingly committed a crime. A mind lost to dementia or retardation may well be incapable of telling the difference between right and wrong, or realistically weighing the consequences of a decision. Over the centuries, criminal justice has embraced ever-wider reasons to avoid execution. The definition of “not guilty by reason of insanity” was broadened in the twentieth century to include crimes that grow out of mental illness—in other words, acts that would not have been committed were it not for the underlying pathology (a schizophrenic, say, goaded to kill by the voices in his head, or any deranged soul whose tormented truth somehow justifies the taking of a life). In her talk in Los Angeles, Clarke seemed to expand the definition further when she suggested that the most terrible killings are themselves an expression of deep mental damage—insanity is inherent in the crime, because only someone with “severe cognitive-development issues” would commit it. We cannot judge her clients, she argues, without fully inhabiting their heads. To comprehend the affliction is to understand the crime. So she had Kaczynski’s tiny cabin disassembled and shipped to Colorado, and had he gone to trial, she planned to have it reassembled so that jurors could literally walk around inside her client’s starkly isolated home, if not his mind.

  The New York Times reported at the end of last year that the death penalty in the United States was in “broad decline,” a pattern some believe reflects a growing societal rejection of the practice. Only nine states put one or more people to death last year, despite the fact that in polls a (decli
ning) majority of Americans still favor execution for the most serious crimes. Gallup polls show that since the early 1990s there has been both a steady fall in support for execution and a steady rise in opposition to it. Thirty-two states still have capital punishment on their books, though the number is shrinking. Activist opponents of the death penalty, like Clarke, have raised the bar so high that many states are opting not to pursue the death penalty, for purely practical reasons: they cite the enormous and mounting expense of contesting seemingly endless appeals, and the difficulty in establishing a “humane” method of putting the condemned to death. But it’s doubtful, even if we stop executing people in the United States, that we will settle the deeper question: Are those who kill sick, or are they simply evil?

  If Judy Clarke has an opposite number, it would be Jacabed Rodriguez-Coss of the U.S. Justice Department’s Capital Case Unit, which, among other things, provides help for U.S. attorneys who pursue the death penalty. When I suggested to Rodriguez-Coss that if Clarke was the angel of life, she might be considered the angel of death, she was justifiably horrified. She could not imagine the side of justice being so characterized. The prosecutor’s job goes beyond the defense attorney’s, she says: the prosecutor’s responsibility is to the entire community, to see that justice is done.

  The question of evil versus illness cleanly divides the legal community. It even divides the U.S. Justice Department, where today prosecutors like Rodriguez-Coss, who professionally supports the death penalty, may find themselves at odds with colleagues and supervisors who are ambivalent toward it, if not outright opposed. Those who support capital punishment are quick to acknowledge that some defendants are sick enough to lack the ability to appreciate the consequences of their actions. But that hardly includes a killer like Kaczynski, who brought exceptional intelligence and deliberation to his murders, and who was quite ready to step forward and take credit for them once he was caught. Here was a man who had freely chosen wrong over right, who had with great deliberation assigned greater importance to his own objectives than to the lives of those targeted by his mail bombs. Indeed, in his journals, Kaczynski gloated over the “success” of his murderous mailings, which he would read about in newspapers.