A recent study estimates that thousands of innocent people are wrongfully imprisoned each year in the United States. Some are exonerated through DNA evidence, but many more languish in prison because their convictions were based on faulty eyewitness accounts and no DNA is available. Prominent criminal lawyer and law professor Abbe Smith weaves together real life cases to show what it is like to champion the rights of the accused. Smith describes the moral and ethical dilemmas of representing the guilty and the weighty burden of fighting for the innocent, including the victorious story of how she helped free a woman wrongly imprisoned for nearly three decades.
For fans of Law and Order and investigative news programs like 20/20, Case of a Lifetime is a chilling look at what really determines a person's innocence.
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About the Author
Abbe Smith, director of the Criminal Justice Clinic and professor of law at Georgetown Law School, is the recognized expert on legal ethics. She is a regular contributor to The New York Times, Boston Globe, Philadelphia Daily News, National Law Journal, and The Atlantic Monthly. She lives in Washington, D.C.
Abbe Smith is Professor of Law, Director of the Criminal Defense&Prisoner Advocacy Clinic, and Co-Director of the E. Barrett Prettyman Fellowship Program at Georgetown Law School. She is the co-editor of How Can You Represent Those People? She began her career as public defender in Philadelphia and continues to be actively engaged in criminal law practice.
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Case of a Lifetime
A Criminal Defense Lawyer's Story
By Abbe Smith
Palgrave MacmillanCopyright © 2008 Abbe Smith
All rights reserved.
Patsy Charlene Kelly Jarrett was born on November 7, 1951, in Washington, D.C. The eldest of two children born to Rufus Kelly, a former World War II army sergeant turned butcher and grocer, and Jean Mildred Kelly, a secretary nearly 20 years her husband's junior, Kelly was raised in Trinity, North Carolina, a small town located outside of High Point.
Kelly's parents divorced when she was 12. When her mother moved back to Washington for a government job, Kelly and her 6-year-old brother, Eddie, stayed with their father. It was an unusual arrangement in the early 1960s, but Jean, who struggled with alcoholism and depression, saw that the kids were better off with their father.
Kelly was happy to stay with her father. Although he had wanted his firstborn to be a boy—he was so certain Kelly would be a boy he had only a male name picked out—Rufus was crazy about his girl from the moment he laid eyes on her. When Kelly cast off dresses and dolls for a pair of overalls and a baseball glove, he didn't mind. He liked his daughter's pluck. If Kelly was happy playing ball with the neighborhood boys, and helping out at the Circle J (the small grille and grocery store her father co-owned), then he was happy, too. Rufus reckoned it was Kelly's life, not his, and he couldn't live it for her.
Kelly felt at ease with her father too. When, as a teenager, she told him that she was a lesbian, he didn't seem surprised. He told his daughter that being gay in the small-town South wouldn't be an easy life, but he would always be in her corner.
Growing up, Kelly's family lived next to a small farm. She worked there in exchange for boarding privileges for her family's two horses, feeding, cleaning, and exercising the horses and mucking out their stalls. From a young age it was clear that Kelly was a natural horsewoman. By the time she was 12 she could break and train a horse. She often rode at horse shows and parades. In addition to horses, Kelly's family had dogs: a collie, a Labrador retriever, and a favorite cocker spaniel mix named "Jep"—for Jean, Eddie, and Patsy. Kelly spent a lot of time training Jep, who could shake hands, roll over, and jump through hoops like a circus dog. At the end of the day, Jep would sleep curled up in Kelly's legs.
When Kelly was in her early teens, her father remarried. After his second wife died, he married again. Between the two stepmothers, Rufus had three more children, all girls. Though Kelly and her father remained close, there was tension between her and the stepmothers. This was especially so with the second stepmother, who acted like she didn't want Kelly and Eddie around. This stepmother was also uncomfortable with Kelly's sexual orientation and declared that she wouldn't "accept it." She worried that Kelly's lesbianism was a corrupting influence on her own young daughters. She set about remaking Kelly by giving her feminine clothing—skirts, dresses, a flowered blouse. She was always after Rufus to treat Kelly more like a girl.
Kelly enjoyed school and was well liked by teachers and peers. Though she wasn't studious—she preferred the outdoors to the classroom—she was a good enough student. Her favorite and best subject was gym, and she thought about becoming a PE teacher until she realized how much schooling was involved. She played all the team sports for girls: basketball, volleyball, and softball. Her best sport was softball. Her quick glove and good arm made her an ideal infielder.
Kelly had a small circle of close friends and a best friend named Terry. When she wasn't playing sports or working, Kelly was often at Terry's house, where she was considered a member of the family. They were not in the "cool crowd"—football players and cheerleaders, prom kings and queens—but they weren't in the tough crowd either. They stayed away from kids who smoked, drank, or got picked up by the police. Though Kelly grew up in tobacco country, she believed smoking was unhealthy long before government-mandated warnings. She didn't drink because she didn't like the taste of alcohol. She had no interest whatsoever in drugs.
Kelly was no goody-two-shoes, but she was good. She couldn't help herself; that's who she was. She was the girl next door, the grocer's daughter, that nice kid who hung out at the stables and the ball field. There was something wholesome about her.
Kelly had worked her whole life, ever since she was old enough to stamp prices at her dad's store. From the time she graduated from high school in 1968 until she was arrested in 1976, Kelly was steadily employed. Aside from working at the store, she worked at several local factories that made anvils, furniture parts, plastic objects, and elastic products. She worked in the textile mills, at a local stable, and in a veterinarian's clinic. She continued to live in Trinity after graduation, eschewing the big-city life of High Point or Winston-Salem because she wanted to be close to her dad, brother, and childhood friends. Trinity was home.
Kelly knew that she liked girls early on. It wasn't the kind of thing anyone talked about, but she didn't feel ashamed of her feelings either. As soon as she could name it, she called herself a lesbian. She never had any doubt about her sexual orientation and considered herself gay through and through. To her father's surprise and stepmother's delight, not long after high school graduation, Kelly married a man named Johnny Jarrett. She did it on a lark—to fit into small-town life, to move out of her stepmother's house, and because Johnny was eager. But it was not a marriage in any true sense. Johnny and Kelly both considered themselves gay, and they married as a way of joining forces. The marriage was short-lived. When Johnny began to have feelings that Kelly didn't share, she put an end to it. She never bothered to change her name back after the divorce.
Patsy Kelly Jarrett and Billy Ronald Kelly met in the fall of 1972, when they were working at the same High Point textile mill. They were introduced by mutual friends who knew they were both gay. High Point was not exactly a gay mecca in the early 1970s, but there was a fledgling community and a local gay bar. As in many towns, there was a not-so-secret club for sexual outsiders—men who liked men, women who liked women, those who "went both ways"—most of whom led outwardly conventional lives.
The fact that Kelly and Billy Ronald were both gay, worked at the same place, and had friends in common created a bond. It didn't matter that Kelly didn't really know Billy Ronald. Familiarity, recognition, a sense of sameness can be comforting. As young, gay southerners, Kelly and Billy Ronald took comfort in each other. They felt like family.
When Billy Ronald suggested they take a trip to New York in the summer of 1973, Kelly didn't think twice.
They quit their jobs and headed north in Kelly's car, a 1970 metallic blue, two-door Plymouth Road Runner. Kelly was proud of that car. It was a "muscle car"—built to be feisty, fast, with few frills: the perfect car for a working-class tomboy. When Kelly first saw it, on the used car lot a few months before the Utica trip, she just had to have it. She traded in her old Ford Mustang, put some money down, and came away with a car James Dean would've been proud to own: a late-model, four-on-the-floor Road Runner, with silver-slotted mag wheels, deep-set grille and headlights, and a slightly jacked up rear.
Kelly liked the look of the car and loved the way it drove. She kept it clean, inside and out, even polishing the wheels. She was fastidious that way. It made perfect sense that she and Billy Ronald would use her Road Runner on the trip north. He wasn't driving anything nearly as nice.
She and Billy Ronald made the trip to Utica in a couple of days, staying with some people he knew along the way. They seemed glad to see Billy Ronald, and welcomed Kelly. The trip north was pleasant and uneventful.
In Utica, Kelly and Billy Ronald made themselves part of the gay community. Like High Point, Utica was hardly a popular gay destination. Still, there was a local gay bar, the Hub, and a bartender named Gerri. Kelly immediately developed a crush on her, and, before long, they became lovers. Kelly spent most of her days with Gerri and her nights at the Hub. On weekends, she hung out with the Angels, a local women's softball team, and watched their games. Gerri played shortstop for the Angels, and Kelly was friendly with some of the other players. Kelly would have liked to have joined the team herself, but it was too late in the season.
Meanwhile, Billy Ronald found work as a laborer, working construction at a nearby apartment complex. This was the arrangement between him and Kelly: He would get a job and pay for their lodging in exchange for the use of Kelly's car. Kelly would rely on savings for her other expenses. This worked for both of them. It was easier for a man to find a decent-paying job, and Kelly was happy to be on vacation for a few weeks. Billy Ronald was the kind of guy who liked to have a wad of cash in his pocket. Kelly did fine on less.
Their time in Utica came to an end in mid-August when Kelly ran out of money. That had pretty much been the plan. Summer was winding down, and it was time for her and Billy Ronald to go home. She called her father and he wired her $40 for the trip back. She hugged her softball friends good-bye, bid a tearful farewell to her summer love, and headed south.
Back in Trinity, she resumed her old life. She found work, hung out at the stables, played ball, spent time with family and friends, and frequented the local gay bar. She and Billy Ronald parted ways when they got home. During their time in Utica and especially on the ride back home, Kelly saw some things in Billy Ronald she didn't like. He was not who she thought he was.
Two and a half years later, there was a knock on the door of Kelly's rented mobile home. Two police officers wanted to know where she was on August 11, 1973, at around 1:00 P.M. She told them she was in Utica, New York, but she couldn't be sure exactly where she was on that particular day, at that particular time. It was more than two years ago and nothing stood out. The officers showed her a picture of a gas station and asked her whether she had ever been there. She said she may have bought gas there once. It looked familiar.
They told her she was wanted for the murder and robbery of 17-year-old Paul David Hatch.
* * *
The annals of legal scholarship are replete with discussions of—and justifications for—representing the guilty. This is the most frequently asked question about criminal defense. Every criminal defense lawyer invariably confronts the "Question": How can you defend people you know to be guilty?1
The Question—which is usually asked at cocktail parties when the target of the query has a drink in hand and his or her guard down—can be posed by the genuinely perplexed as well as the hardened heckler. The person questioned has heard it many times before and, if gracious, will try not to appear peevish. He or she might offer any number of standard replies—about the adversary system requiring competent counsel on both sides, the critical role of the defense lawyer in ensuring access to justice, the importance of checking official power and of protecting the rights of the guilty as well as the innocent.
One commentator who at first dismisses the Question as a matter of utter unimportance later suggests that devoting one's career to defending the guilty might simply be a matter of "taste." Likening defenders to doctors who specialize in disorders of the colon, rectum, and anus, he says, "It is important to remember that, for one reason or another, criminal lawyers want to defend criminal defendants. Their taste may be as baffling to us as is the proctologist's, but we need both and should not try to dissuade either from pursuing his or her profession."
George Sharswood, a prominent nineteenth-century Philadelphia lawyer who wrote an influential essay on lawyers' ethics, was one of the first to put forward a principled argument for defending the guilty. Sharswood argued that lawyers must zealously represent the innocent and guilty alike lest they usurp the function of the fact-finder. It is for judges and juries to judge the accused; lawyers should represent them.
Charles Curtis, a leading twentieth-century Boston lawyer who also wrote an important article on lawyers' ethics, likened the criminal lawyer representing a guilty client to the civil lawyer who takes on a "bad" or unpopular case. He argued that both serve the system.
Some commentators discuss the need to defend the guilty for symbolic reasons: to show that everyone, no matter the allegation, has the right to their day in court. This ideal can be met only through competent counsel. When the worst, most wicked criminal—Oklahoma City bomber Timothy McVeigh, Washington, D.C., area sniper John Muhammed—receives proper counsel and a fair trial, we can rest assured that the system is working.
One of the most famous proponents of the importance of representing the guilty and unpopular was the second President of the United States, John Adams. Adams was a 34-year-old lawyer when eight British soldiers opened fire on a crowd of colonials, killing five. There was enormous public outcry against the killings, which became known as the Boston Massacre, and the soldiers and their captain were charged with murder. While others hesitated, Adams stepped forward to defend the redcoats. He believed that "no man in a free country should be denied the right to counsel and a fair trial." Adams said, "[I]f by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or of ignorance, equally fatal, his blessings and years of transport will be sufficient consolation to me for the contempt of all mankind."
Adams was largely successful in his defense of the soldiers. By depicting the colonials as an angry, threatening mob against which the soldiers acted in self-defense, he obtained acquittals for the captain and six of the eight soldiers. The two remaining soldiers were found guilty of manslaughter for which they were branded on their thumbs. Later in life Adams described the case as "the most exhausting" he ever undertook, but also "one of the most gallant, generous, manly, and disinterested actions of [his] whole life."
Other commentators cite pragmatic reasons for defending the guilty. Although most people accused of crime are usually guilty of something, defense lawyers serve an important testing function. If nothing else, they ensure the government's evidence is trustworthy enough to support a conviction by probing and challenging it. They make sure the guilty are convicted of what they actually did as a matter of fact and law, an important safeguard against overcharging or wrongful charging. Criminal defenders also ensure that the constitutional rights of the accused are protected and that police, prosecutors, and judges comply with the law.
Prominent legal ethics scholar Monroe Freedman has long argued that zealous advocacy on behalf of the guilty and nonguilty alike is in keeping with the basic principles underlying the Bill of Rights. A lawyer who defends the accused embraces the dignity and humanity of the individual in the face of a powerful and sometimes oppressive system. Zealous defenders also make sure that the least of us—the detested and the destitute—have the same rights and privileges as anyone. As New York public defender Martin Erdmann stated in a 1971 Life magazine article that became an instant criminal defense classic: "I'm concerned with seeing that every client gets as good representation as he could if he had $200,000. I don't want him to get screwed just because there wasn't anyone around to see that he's not getting screwed."
Renowned Australian defense lawyer Frank Galbally was asked the Question many times during his long career. He had a particularly thoughtful answer:
The rule of law is a fundamental requirement of a civilised state. Its development has taken many centuries. Its origin and preservation owe a great deal to the courage and independence of advocates who have fought for its recognition regardless of the consequences.... [W]ithout the rule of law and the freedom of advocates to protect it, democracy is void of meaning, and the liberty of individuals is in jeopardy at the hands of arbitrary power....
Clients come to me to represent them and take upon my shoulders their cause, not the Crown's or the public's or anyone else's. In doing so they do not ask for my judgement of their cause or for me to turn them into witnesses against themselves, for I am neither a prosecutor nor a judge. If I assume either role I become a grave threat, not only to my clients but also to the interests of justice and the freedom of the individual.
Clarence Darrow, whose name is synonymous with defending unpopular causes in this country, gave a more personal answer. For Darrow, defending the accused, whether innocent or guilty, reflected a passionate engagement in life itself: "Strange as it may seem I grew to like to defend men and women charged with crime. It soon came to be something more than winning or losing a case.... [It] meant more than the quibbling with lawyers and juries, to get or keep money for a client so that I could take part of what I won or saved for him: I was dealing with life, with its hopes and fears, its aspirations and despairs."
According to Stanford law professor Barbara Babcock, the Question is actually three different questions, each of which requires its own answer: How can you represent the guilty (how can you reconcile the moral dilemmas that such work entails); how can you represent the guilty (why you, with your elite education and endless professional opportunities); and how can you represent the guilty (how far will you go on behalf of such clients)?
Excerpted from Case of a Lifetime by Abbe Smith. Copyright © 2008 Abbe Smith. Excerpted by permission of Palgrave Macmillan.
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Table of Contents
Prologue * Innocence * Truth * Hope * Freedom