By Denise Lavoie
AP Legal Affairs Writer
BOSTON (AP) — One lawyer won acquittal for a Saudi man charged with carrying three firecracker-like devices on a plane, arguing he was a victim of hysteria over airport security after the Sept. 11 attacks. Another has managed to avert death sentences for some of the highest-profile criminals of our time, including the Unabomber and the gunman whose rampage injured former Arizona Rep. Gabrielle Giffords.
Together, they are staring down what may become their biggest challenge so far: how to defend the man authorities say helped plan and carry out the Boston Marathon bombings, an attack that killed three people, injured more than 260 and virtually shut down the city during an intense manhunt.
The team that will be led by Miriam Conrad, the chief federal public defender for Massachusetts, New Hampshire and Rhode Island, got a major boost recently with the addition of prominent San Diego lawyer and death penalty opponent Judy Clarke. Not that Conrad is considered any slouch.
“She is as tenacious as they come,” said Joshua Levy, a former assistant U.S. attorney in Boston who has gone up against Conrad in federal court. “I always found her to be very smart and focused on whatever she perceived as chinks in the armor in the government’s case. She would zone in on that.”
Dzhokhar Tsarnaev, 19, is charged with using a weapon of mass destruction to kill, a crime that carries a potential death sentence. He lies in a prison hospital after being wounded in a shootout with police as he and his brother made a getaway attempt. Tamerlan Tsarneav, 26, was killed.
Conrad is preparing for what’s expected to be a long and complicated legal process. Although federal law entitles to at least one lawyer with experience in death penalty cases, Conrad asked for two. She got Clarke but was denied a second — David Bruck, a professor at Washington and Lee University School of Law. He has directed the school’s death penalty defense clinic since 2004.
The suspect’s lawyers could renew their motion to appoint another death penalty expert if he is indicted, the judge said. That’s when prosecutors could add new charges. Prosecutors have 30 days to indict him.
Northampton, Mass., lawyer David Hoose described Clarke as “simply the best.”
“She has an ability to relate to people who are charged with these horrific, horrific crimes and to humanize them, to portray them as human beings to the government and to a jury,” said Hoose, who has represented several people accused of capital crimes, including Kristen Gilbert, a former veterans hospital nurse who killed four patients by overdosing them with medicine. Gilbert was spared the death penalty.
Conrad, 56, is among three federal defenders in her office who will represent Tsarnaev and would not talk about how she will defend him. Lawyers who have handled capital cases say the team’s first priority will likely be to persuade prosecutors to take the death penalty off the table.
Tamar Birckhead, a former federal public defender who represented shoe bomber Richard Reid, said the public safety exception cited by authorities allows investigators to question a suspect on a focused and limited basis when police or the public may be in immediate danger.
“It seems inevitable if the case is going to be litigated and not resolved in a negotiated plea, then (Conrad) will bring a motion to suppress and try to argue that the government went beyond the public safety exception or didn’t craft questions that were limited enough to fit within that exception,” said Birckhead, now an associate professor at the University of North Carolina at Chapel Hill School of Law.
“Then they’ll see what a judge decides,” she said.
Experts say Conrad is also almost certain to try to suppress statements Tsarnaev allegedly made to investigators before he was advised of his constitutional right to remain silent and seek a lawyer.
Tsarnaev admitted his role in the bombings, saying that he and his brother were angry about the U.S. wars in Afghanistan and Iraq and the killing of Muslims there, officials said.
Conrad has spent her entire legal career as a public defender, first for the state, and for the past 21 years as a federal defender. Before going to Harvard Law School, she worked for the Kansas City Times and as a crime reporter for The Miami Herald.
In court, Conrad is aggressive and feisty without being histrionic. Prosecutors who have gone up against her say she is a fierce advocate who takes advantage of any missteps by her opponents. Judges also respect her.
Former Assistant U.S. Attorney Mark Smith recalled attending a seminar several years ago when a panel of judges was asked by a lawyer how he should handle himself in federal court.
“One of the judges said, ‘Do what Miriam does. Watch Miriam; do what she does,’” Smith said.
She won an acquittal in 2004 for a Saudi biomedical engineer who was charged after three sparklers were found in his luggage at Boston’s Logan Airport.
She argued he didn’t realize the sparklers were in his luggage. After he was acquitted, Conrad questioned why the case wasn’t resolved by Customs agents.
“Knowing how credible he is, I wonder why it didn’t stop there,” she said. “This guy is no more a terrorist than Pope John Paul.”
In the case of Rezwan Ferdaus, a Massachusetts man accused of plotting to attack the U.S. Capitol and Pentagon with remote-controlled model planes, Conrad suggested his plot was just a fantasy fueled by mental health problems. Ferdaus received a 17-year sentence after pleading guilty to attempting to provide material support to terrorists and other charges.
In a 2006 interview with Massachusetts Lawyers Weekly, Conrad said she does not see her clients in one-dimensional terms.
“From a personal standpoint, I would say that there are very few clients I have had who I didn’t like,” she said.
“If you scratch the surface, many have had difficult lives, and, as their lawyer, I sort of see them whole — not just as a person charged with a crime,” she said. “No one has ever stood up for them, and that is a very powerful, emotional thing,” she said.
Clarke’s clients have included the Unabomber, Ted Kaczynski; Susan Smith, who drowned her two children; Atlanta Olympics bomber Eric Rudolph; and most recently Tucson, Ariz., shooter Jared Loughner. All received life sentences instead of the death penalty.
Harvard Law School professor Alan Dershowitz said Clarke understands the divide among Americans over the death penalty, with some opposed to it, others generally supportive of it, and still others who want to see it reserved for only the worst cases.
“She knows how to use those attitudinal differences in the interests of her clients,” he said.
Clarke has rarely spoken publicly about her work and did not return a call seeking comment. However, at a speech earlier at a legal conference in Los Angeles, she talked about how she had been “sucked into the black hole, the vortex” of death penalty cases 18 years ago when she represented Smith.
“I got a dose of understanding human behavior, and I learned what the death penalty does to us,” she said. “I don’t think it’s a secret that I oppose the death penalty.”
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