Having witnessed Judy Clarke in action during the pretrial hearings in the U.S. vs Theodore Kaczynski, I can say that she is an impressive attorney. She was co-counsel in that trial and her role was to help pick the jury.
We watched her work for two months, which was how long it took to pick the death qualifying jury. What the defense wants in such cases is people who are, in fact, opponents of the death penalty in general but able to say that there might be a circumstance in which they could vote in favor of death as a punishment.
Judy Clarke is a master at bringing about this conversion and on days when she was successful I was in awe at her skill. I remember one morning when we ended up in the restroom after she had gotten a prospective juror who had initially said she was against the death penalty to, after maybe 45 minutes of questions, allow that the death penalty might be okay in some cases. I couldn’t help but say to her, “you are incredible!”
Now Clarke is not one to be friendly with the press even when she is getting a compliment. She smiled as she finished washing her hands and thanked me. I can’t remember if she replied that she found the phenomenon of getting someone to change position, especially when what you are trying to do is get the person to say that they might be able to vote in favor of the least favorable penalty for your client, but I do remember that her response implied that.
Since I am not a lawyer, it had taken me a while, watching the questioning the first time she was successful, to understand that she was trying to achieve that outcome. To hear a defense attorney lead a prospective juror through the process of going from opposing the death penalty to agreeing with it is counterintuitive.
In the end, the selected jury was dismissed on what was to be the first day of the trial when Ted Kaczynski agreed to plead guilty and avoid the death penalty. His attorneys were insisting on pleading him not guilty by reason of insanity and Kaczynski preferred to spend the rest of his life to prison then to admit that he was not sane.
There was no trial so we never got to the surreal point of hearing her argue against the death in the penalty part of the trial.
She would have been trying to convince the same people who’s mind she had changed that they were right in their initial feelings. That’s justice.
