In 1996, David Bruck called his law school friend Judy Clarke and asked if she would take a leave of absence from teaching to assist him in defending Susan Smith, the most high-profile woman facing the death penalty in America at the time.
Clarke accepted. For her, representing Smith — a 23-year-old South Carolina woman who admitted strapping her two sons into their car seats and drowning them inside her Mazda at the bottom of a lake — started a career defending despicable clients facing the possibility of death. She’s gone on to defend Unabomber Ted Kaczynski, 1996 Summer Olympics bomber Eric Rudolph, and Tucson shooter Jared Loughner. Speaking at Loyola Law School in April 2013, Clarke said she was “sucked into the black hole, the vortex” of death penalty defense work during the Smith trial.
She and Bruck are now representing convicted Boston Marathon bomber Dzhokhar Tsarnaev.
The penalty phase of his trial begins on April 21, and the judge expects the jury to decide whether he will be sentenced to death about a month later.
Tsarnaev’s lawyers knew they couldn’t save him from a guilty verdict on the criminal charges — Clarke, in her opening statements, outright told the jury “he did it.” Their best chance comes now, in the bid to save his life. And to understand Clarke and Bruck’s strategy, you need to look 20 years into the past.
On Oct. 23, 1995, Susan Smith drove her 1990 Mazda Protege to John D. Long Lake in Union, South Carolina, with her sons, Michael, 3, and Alex, 14 months, sitting in the back. As she let the car roll slowly into the lake, Smith ran to a nearby house screaming that she had been carjacked by a black man and that he had her kids. Meanwhile, her Mazda floated for six minutes on the water — with her children inside — before sinking to the bottom of the lake, where it remained for the next week and a half.
For nine days, Smith maintained her story about the black carjacker. National TV interviews, later played during jury deliberations, showed her in the throes of despair, speaking on camera to her children as if she hoped they were still alive: “I want to say to my babies that your mama loves you so much. I just feel in my heart that you’re OK, but you’ve got to take care of each other.”
On Nov. 3, Smith broke down and confessed. Union’s sleepy mill town community, which initially stood by her side, turned against her. By July 1996 she was on trial for her life with Clarke and Bruck in her corner.
Much as with her strategy during Tsarnaev’s case, Clarke conceded Smith’s guilt and assured the jury she would not try to put on an insanity defense.
"Susan Smith knew it was wrong to kill," Clarke said at the time. "We are not here to talk to you about any abuse excuse.
"We are not here to put on the evidence of excusing responsibility because of bad circumstances in life or an abused life, because Susan Smith accepts responsibility for what happened."
She added: "When we talk about Susan Smith's life, we are not trying to gain your sympathy. We're trying to gain your understanding."
Clarke and Bruck then went to work on convincing the jury that Smith was not a monster, but a troubled human being tortured by a lifetime of suffering. They told the jury the story of how her father killed himself when she was a 6-year-old girl; how, later, her stepfather sexually abused her; and how she attempted suicide herself twice.
They put Beverly Russell, her stepfather, on the stand, where he told the jury he deserved part of the blame for the tragedy. “My heart breaks for what I have done to you,” Russell told Smith in the courtroom.
Every piece of the narrative was meant to fit the framework Clarke laid out in her opening statements: that Smith was trying “to cope with a failing life and she snapped.”
Prosecutor Tommy Pope told the jury that Smith’s actions were born of selfishness. He said she murdered her two children because her ex-lover John Findlay told her they could no longer be together because he didn’t want kids. Smith’s ex-husband, David, testified that she wanted to be free of him to be with Findlay. And as he talked about his dead sons, David broke down on the stand, saying, “All my hopes, all my dreams, everything that I had planned for the rest of my life, it ended that day.” Smith wept during the testimony and whispered “I’m sorry, David” as court recessed.
Later in the trial, as the jurors looked at autopsy photos of the children, a forensic technician described how the boys’ bloated bodies were pulled from the bottom of lake still in their car seats.
It took the jury a few hours to convict Smith and the trial moved to the penalty phase, where Pope showed a video re-enactment of the Mazda floating in the lake for six minutes before sinking to the bottom.
“She may be sorry now,” Pope said during his closing argument, speaking quietly to the jury then raising his voice. “But was she sorry when she dropped that hand brake down and sent her children to their death!”
In his closing statement, Bruck used the lake as a metaphor for the grief that Smith would endure as she sat in prison.
“This young woman is in a lake of fire!” Bruck said. “That is her punishment.”
He read from the Bible a story of a woman who committed adultery — a crime punishable by death. “He that is without sin among you," Bruck read, "let him first cast a stone at her."
Finally, he asked the jury to “watch over” Smith as he and Clarke had for the past few months.
The jury’s verdict: life in prison with parole after 30 years.
Even though one juror voting for life in prison would have been enough to take the death penalty off the table, the jurors worked to change the mind of a single holdout who favored death. The holdout later said in an interview, “At first it seemed like the death penalty would be the choice, but a lot of bad happened in her life.”
Now, 20 years later, Clarke and Bruck are faced with a similar challenge. According to recent polls, roughly the same percentage of Americans favor the death penalty for Tsarnaev (60%) as Smith (63%). Arguably, they faced a harder challenge with Smith because a sentence of life without parole was not an option in South Carolina at the time. (She is up for parole in November 2024.)
When Tsarnaev’s penalty phase starts next week, prosecutors will present aggravating factors that they will argue make the death sentence appropriate. (During jury selection for the Boston bombing trial in January, every juror told the judge that they could vote for death if the facts of the case led them to that decision.) The defense will show the jury mitigating factors — many of which will be similar to those seen 20 years earlier in the Smith case.
For instance, the government will reiterate that Tsarnaev took his bomb and placed it at the feet of Martin Richard, killing a defenseless 8-year-old boy. The defense, though, will focus on Tsarnaev’s troubled teen years leading up to the bombing, when he came under the influence of his older brother, Tamerlan. The ultimate question: Can Bruck and Clarke humanize Tsarnaev to the jury?
“Judy and David did what I expected,” Pope, who has practiced law for more than 25 years and was elected to the South Carolina House of Representatives in 2010, told BuzzFeed News. "Flouted enough mitigation during the guilt phase. I anticipated that they would try to lay as much groundwork that he was the subservient younger brother.
“That’s what they did in the Smith case, and it worked. They worked towards personalizing her. They only have to personalize her to one juror."
Personalizing Tsarnaev, like personalizing Smith, is not asking the jurors to relate to struggles of a violent murderer, Pope says. On the contrary, it’s about the jurors seeing something different about the defendant that makes them feel more comfortable about their own lives.
In the Smith case, “They wanted to find a reason why this wouldn’t happen to us at home,” Pope said. “People were looking to find something why her circumstances were different than mine and yours. The public was ready to find some answer that made them more comfortable. Our wife wouldn’t do this! Our sister wouldn’t do this!”
CORRECTION: The Susan Smith trial was 20 years ago. An earlier version of this article misstated how long ago it was.