While the Tucson incident has lots of people talking about the Second Amendment and how it is applied, the amendment that is really being put to the test and coming through with flying colors is the Sixth Amendment. The Sixth gives an accused person several guarantees (jury trial, speedy trial, public trial etc.) But it also requires that the accused “have the Assistance of Counsel for his defence.” Through many subsequent US Supreme Court decisions, this right has been interpreted to mean that the Government must pay for the accused’s lawyer if the accused cannot pay for the lawyer himself. It also guarantees that the assistance of counsel must be “competent and effective.” Now I know that this rule is often ignored in many states and the funding for and representation of the indigent is wholly inadequate. But the Federal system has a much better funded indigent defense program.
Well the Federal District Court in Arizona has pulled out all stops in the Tucson case by appointing famed death penalty opponent Judy Clarke as Jared Loughner’s defense attorney. Without a doubt Judy Clarke is the most famous Death Penalty litigator in the country and she has saved the following folks from being killed by the State:
(1) Theodre Kaczynski, the UnaBomber for whom she obtained four life sentences plus 20 years;
(2) Eric Rudolph, the 1996 Summer Olympics Bomber who also received four life sentences;
(3) Zacarias Moussaoui who helped plan the 9-11 terrorist attacks. She convinced a federal jury that his role was so minor he did not deserve the death penalty;
(4) Susan Smith, who drowned her two sons in a South Carolina lake. She convinced a South Carolina jury to sentence her instead to life with a guarantee of 30 years with no parole.
Now some who read this will undoubtedly say that Ms. Clarke has spared a rogues gallery from the graveyard at the expense of the taxpayer and that she should be vilified for her efforts on behalf of so heinous a cast of characters. I for one can’t even imagine what she gets put through every time she appears in court in one of these high profile cases. But she has chosen to make her career a statement that the death penalty is not fairly or properly applied and that it is unconstitutional to kill folks whose acts were the product of a mental disease or defect. And in doing so, she protects all accused, including those who are innocent, from the harshest penalty of law. That the Death Penalty is not fairly applied is hardly arguable anymore, (see my earlier post the Death of the Death Penalty? at https://courtroomstrategy.com/wp-admin/post.php?post=44&action=edit). Today, in fact, the NY Times reports that the Illinois Legislature has presented a bill to the Governor eliminating the death penalty in that state.
Ms. Clarke will delve into all of Loughner’s past 20 years to find what led him to this day in January. She will have to decide whether what she finds is sufficient to convince an Arizonan jury to spare Loughner’s life. It is difficult, lonely, depressing and morbid work to try and protect the life of someone the majority of the rest of the country wants hanged in a public square. She makes a very decent living at it I am sure but she does it for the principle. In fact, after the Susan Smith trial, Ms. Clarke returned the $85,000 the State paid her for the defense saying that she felt the indigent people of South Carolina needed the money more than she did. Besides no amount of money would have you do this all the time unless it was a cause you really believed in.
But the real story is that the Constitution requires the government to do such a thing. In so many countries, the story would be dramatically different. It is a testament to our system that the State provides a lawyer with the ability and experience of Judy Clarke on this case. It would be great if that level of defense was provided for all the accused who face the death penalty across the country. Then we would see whether it would be rationally and fairly applied.