Rogues: True Stories of Grifters, Killers, Rebels and Crooks

Keefe introduces the reader to defense attorney Judy Clarke, with her speech at the trial of Dzhokhar (or Jahar) Tsarnaev. Tsarnaev, together with his older brother Tamerlan, successfully carried out a bombing at the 2013 Boston Marathon, the “worst domestic terrorist attack since September 11” (257). Clarke has made her fame defending infamous and indisputably guilty criminals facing the death penalty, including the Unabomber. She is deeply opposed to the death penalty and obsessed with human motivation, seeking to understand what drives her clients to commit unspeakable acts.

After growing uncomfortable with private law practice, Clarke made a name for herself by defending federal death penalty cases. Her first major win was the 1993 trial of Susan Smith, who murdered her two children by driving her car into a lake. Clarke contextualized Smith’s horrific act as the product of a lifetime of abuse and mental health struggles. Smith was sentenced to life imprisonment.

Despite her dedication to her clients, Clarke does not take an adversarial approach to prosecution witnesses. At Tsarnaev’s trial, the case testimony was particularly horrific, as some of Tsarnaev’s victims were young children. Prosecutors insisted that Jahar was a radical Islamist like his brother, pointing to a written confession with references to US policy toward Muslims. Keefe notes, however, that Tsarnaev could also come across as a “wayward child” (266), and in college he was better known for dealing marijuana than religiosity.

Unpacking Clarke’s outlook and professional approach, Keefe states that she sees herself as the compiler of a “social history” that proves “the perpetrators of terrible crimes are also victims themselves” (267). Clarke’s colleagues stress to Keefe that her belief in the essential humanity of her clients is truly boundless. She and her husband have no children; she takes only federal cases, which provide her with the necessary resources to defend clients. Tsarnaev’s case was more difficult not for funding reasons, but because he was charged with terrorism, limiting his ability to communicate with the outside world and keeping many of the proceedings secret. One of Keefe’s interview subjects questions this choice, since Tsarnaev, the lone survivor, is hardly the same kind of active threat a member of a larger group might be. In the trial, Clarke’s team concentrated on proving that most of Jahar’s life was ordinary, while his brother was the chief orchestrator of the bombing. The bulk of her work to humanize Tsarnaev occurred during the sentencing phase.

Tsarnaev came from a Chechen family marked by trauma and difficulty. After they immigrated to the US in the turmoil of the 1990s, his brother Tamerlan struggled to acclimate to the United States and establish a boxing career, turning instead to religion and violent versions of Islam he found online. Clarke argued that while most of Jahar’s friends knew him as a gentle person, Tamerlan was focused on enacting terrorism. Clarke tried to convince jurors that Jahar struggled to resist his brother, in part due to the cultural cachet given to older siblings in Chechen culture; however, this narrative largely failed because Tsarnaev remained mostly emotionally stony during testimony. Clarke had to bring in death penalty opponent Sister Helen Prejean to testify to his regrets.

Keefe turns to Clarke’s own history to understand what drives her. He describes her Republican upbringing and lifelong interest in law and justice. As a counterweight, he points to 1992, when her younger brother Mark died of AIDS. Her mother, a former Republican, was incensed when Senator Jesse Helms, a family friend, suggested Mark had deserved his own death as a consequence of his sexual identity. Clarke’s friends posit that while Clark has always been a passionate crusader, her brother’s loss may have only deepened her interest in compassion over punishment.

Keefe, who attends the Tsarnaev trial, admits that he wondered if Clarke’s crusade was fruitless, not due to her lack of skill, but because Tsarnaev considered death a fitting punishment. This is not uncommon in death penalty cases, including one where Clarke ultimately removed herself rather than support her client’s bid to die. Another unique aspect of the Tsarnaev case was the distinction between federal policy and state law: Massachusetts has no death penalty, but the federal government could pursue it in the case.

Tsarnaev’s legal team attempted to argue that life in prison would be more compassionate to the public, as years of death penalty appeals would only prolong the closure process. The jury’s decision, however, was based on a federal requirement known as “death penalty qualification’’—only those comfortable with capital punishment can be seated on the sentencing jury (277) in such a case.

In her closing arguments, Clarke stressed Tamerlan’s role as the primary agent of the crime, insisting that Dzhokhar was not “the worst of the worst” (278) though Keefe points out that the depravity of his actions is what brought Clarke onto his case in the first place. Clarke failed to connect with the jury of death penalty supporters, while the prosecutor argued that Dzhokhar had turned his back on the country that had welcomed him and his family and given him a comfortable life.

Keefe considers the most common philosophical arguments for and against capital punishment. Tsarnaev would not be a danger to the public; his execution would be unlikely to, as some death penalty supporters claim, deter future criminals. The last remaining argument is the desire for vengeance for the victimized. This is the impulse that ultimately won out, as the jury voted in favor of capital punishment.

Keefe turns back to the politics of the case to explain that this outcome might have been avoided. Tsarnaev had, before the trial, offered to plead guilty and apologize to the victims, but the government decided not to publicize this given the secrecy measures attached to this case. Keefe interviews former federal judge Nancy Gartner who suggests that the trial proceeded because the government was eager to prove that it could prosecute terrorism cases, rather than detaining suspects indefinitely at Guantanamo Bay.

In his closing remarks to the jury, Tsarnaev spoke mostly about Islam. Keefe wonders whether the 21-year-old Tsarnaev had truly weighed the consequences or meaning of his actions. The case was Clarke’s first significant loss, and it will not end soon as most death penalty cases involve multiple appeals. In his closing update on the case, Keefe notes that Tsarnaev’s appeals continue and that Clarke continues to take high-profile cases, most recently that of the man who murdered multiple congregants at Pittsburgh’s Tree of Life Synagogue in 2018.