Picking Fights for the Good of the People : Law: Judy Clarke’s idea of a good time is butting heads in court and working 80 hours a week. As executive director of Federal Defenders of San Diego, she gets plenty of that.
Judy Clarke, San Diego’s federal public defender, has the perfect job--if working nights and weekends and squabbling continually with lawyers sounds appealing. Clarke can’t get enough of it.
“I like to fight,” she said. “And it’s a hell of a fight as a defense lawyer. I love the action. I love the fight. I like the antagonism. I like the adversarial nature of the business. I love all of that. I think that’s the fun stuff.
“Especially when it’s over an issue that I think is of significance to all of us, and that’s our freedoms, our individual liberties.”
Late last month, Clarke, who is executive director of Federal Defenders of San Diego Inc., the 17-lawyer agency that defends poor people charged with crimes in federal court in San Diego, took her fight to the U.S. Supreme Court. In essence, she made a federal case out of a $50 fine.
The case involves a new law that requires people convicted of federal crimes to pay “assessments” to a special victims’ crime fund.
A Federal Defenders client had to pay a $50 assessment after being convicted of two misdemeanor counts of alien smuggling. Clarke told the justices the law is illegal because it violates an obscure clause of the U.S. Constitution.
After the argument, Clarke said it went well. That is, “it was lively,” she said.
Clarke has made a habit of challenging federal laws she perceives as unwarranted intrusions on the Constitution, no matter how arcane the objection. Although most lawyers never argue even one case at the U.S. Supreme Court, last month’s argument marked her second trip there in five years--both of them on technical objections to legal procedure.
Clarke has made a career of defending her clients to the limit. She demands that lawyers at Federal Defenders do the same; every attorney at the office works at least 60 hours a week.
At 37, she also has gained a measure of national fame as an expert in constitutional issues relating to criminal law.
In articles and interviews in the legal press, she has detailed her opposition to an erosion in constitutional rights that she feels Congress and the federal courts have orchestrated in recent years as a reaction to the war on drugs. In particular, she has opposed rulings that give police greater latitude to stop and detain people without cause.
Her evident passion for what she feels is right has not always won Clarke friends, particularly at the downtown San Diego federal courthouse. But she has won wide respect, particularly from the other 16 lawyers in her office--and even from federal prosecutors--for her dedication, determination and work ethic.
What really gets Clarke fighting mad, however, is not a response to any legal position she takes. It’s when she is called a liberal.
“I don’t know but what my positions have been the most conservative in the world, quite frankly,” she said. “What does it take to be an absolute supporter of what the Constitution says? That’s hardly liberal.
“I don’t smoke dope,” Clarke said. “I don’t snort cocaine. I’m not into drugs. I don’t like drugs. You associate that with a liberal view of a lawyer. I’m not into that. I don’t like the drug problem the country has. I don’t know if you can call me a liberal. Yes, I’m a defense lawyer, but I think I have very conservative values.”
She was imbued with those values while growing up in Asheville, N. C., the second of Patsy and Harry Clarke’s four children. At their house, the two boys, two girls, parents and one set of grandparents gathered for dinner each night and argued about the meaning of the “word of the day.”
“We were all very loud and very opinionated,” Patsy Clarke said last week. “Those of us who are remaining still are.
“One thing we really stressed was that you had the right to think whatever crazy thing you want to think, as long as you don’t make me think it,” Patsy Clarke said. “But, when you make me think it, that’s when I begin to fight.”
Harry Clarke died a few years ago in a plane crash. A labor relations consultant, he was “a very honest, courageous and aggressive man,” Patsy Clarke said. “Judy has inherited that.”
Judy Clarke went to college at Furman University, in Greenville, S. C., and to law school at the University of South Carolina. While a law student, she and her husband traveled to Southern California to visit relatives and fell in love with San Diego.
After graduation from law school in 1977, she signed on at Federal Defenders. In December, 1983, when John Cleary left the agency to go into private practice, she took his job as executive director.
Since then, the agency has grown from 10 lawyers to 17. Its current budget is about $2.7 million. Last year, fiscal year 1989, Federal Defenders handled a part of about 6,000 cases, Clarke said.
The office has a reputation for demanding a lot from the young lawyers who sign on. They sign what Clarke calls a “blood letter,” pledging to work a minimum of 60 hours each week. In exchange, beginning lawyers make about $30,000 a year--but learn quickly how to become proficient at trial skills. Clarke earns about $78,000 annually, far less than someone at her level would make at a private law firm.
“She’s a very good boss,” said Knut Johnson, one of the young lawyers at the office. “She can be intimidating, though, because she is so energetic and intelligent and hard-working. She has standards that are very high and are sometimes very difficult for those around her to bring themselves up to. But she manages to bring them up to her level of performance and make themselves better lawyers.”
Clarke herself works “more hours than anybody I know,” said her husband, Speedy Rice, who is also a lawyer in San Diego but specializes in personal injury and aviation law. “I’d say she pushes 80 hours a week. And that’s consistent time, not spurt time. Day in and day out, she works harder than anybody I know.”
Clarke has no hobbies, Rice said. She’s not a fan of television and she doesn’t read a book if it’s not law-related, he said. “She is 100% devoted to what she does,” he said.
To relax, Clarke goes running at 6 a.m. most weekdays with Cleary and with her 100-pound giant schnauzer, Abe. The dog is named for Abe Fortas, the lawyer who won the landmark 1963 U.S. Supreme Court case that established an indigent person’s right to be represented in court by a lawyer without charge.
Clarke, Cleary said, is committed to the “brutal, vicious pursuit of excellence. Not on others, on herself. I worry about her, I do.”
But Clarke said she still loves the frenetic pace at Federal Defenders.
“If you like the fight, you’ve got a good fight here,” she said. San Diego juries, she said, are “very tough” and “very conservative.”
Prosecutors who have run up against Clarke in court consistently declined to comment on reports of friction between her office and theirs.
“We often disagree with her, in court, on issues,” U. S. Atty. William Braniff said. “But she is, as I say, very determined, and you have to respect that hard work and determination.”
“I’m proud for her,” Braniff said. “She’s a very accomplished person--determined, hard-working, very bright and very committed to her clients.”
Clarke said it has become more difficult in recent years to maintain the enthusiasm behind that commitment.
“Congress has given real control over the system to the government, and the courts have given real control over the system to the government,” she said. “There’s been a real deference to what the majority want, what the law enforcement types want. And that’s tough. It’s tough to make a difference.”
In the courts, she said, it used to be the rule that police could briefly question someone on the street if they had reason to believe the person was engaged in wrongdoing. The U.S. Supreme Court ruled in the 1960s, though, that officers could not detain or arrest a suspect without firm evidence, or probable cause, that the person had committed a crime.
In recent years, however, several U.S. Supreme Court rulings in drug and immigration cases have undercut that doctrine, suggesting instead that police may stop, detain and question a person even without evidence of illegal activity.
As for Congress, in 1984 it enacted reforms that, in part, made it tougher to bail out of jail. In 1986, it brought forth a law that eliminated a judge’s discretion in sentencing and provided for harsh and rigid prison terms in drug cases. In 1988, those drug-related minimum mandatory sentences were toughened.
In 1987, related sentencing guidelines took effect, prescribing inflexible prison sentences, wiping out parole and all but doing away with probation for a variety of crimes.
Clarke has attracted national attention for her opposition to the guidelines. Her office was the first in the nation to challenge them, contending they violated the Constitution’s separation-of-powers provisions because they were drawn up by a seven-member panel of judges and professors, instead of by Congress.
At first, Clarke convinced a San Diego federal judge she was right. For some months, she kept a running tally, published in a newsletter, of court decisions across the country either for or against the guidelines.
The U.S. Supreme Court later upheld the guidelines, in another case, but Clarke remains a strident critic, saying in a recent interview that the guidelines are “outrageous” and a “complete disaster.” Clarke, who serves on an American Bar Assn. committee that studies sentencing standards, said she plans to urge the panel in an upcoming meeting to call for the guidelines to be abolished.
Clarke’s first trip to the U.S. Supreme Court came in a case decided in 1985. It involved the question of whether the Constitution automatically allows a defense attorney additional time to prepare if, during a case, prosecutors file new charges against a client. No, the court said, in a 9-0 vote.
The case that took Clarke back in late February to the U.S. Supreme Court involved yet another technical constitutional question. The “assessments” to the special victims’ crime fund, which range from $25 to $200, were authorized by Congress in 1984.
In 1985, Clarke’s client, German Munoz-Flores, pleaded guilty to two misdemeanor counts of alien smuggling. He was placed on two years’ probation and paid a $50 assessment, $25 on each of the counts.
At the sentencing hearing at the downtown San Diego federal courthouse, Clarke told U.S. Magistrate Irma E. Gonzalez that the assessments are unconstitutional because they stem from a revenue-raising measure that originated in the Senate, not the House of Representatives.
The Constitution, in what lawyers call the “origination clause” of the document, requires that all revenue-raising bills originate in the House, Clarke said.
Gonzalez was unconvinced. Clarke appealed unsuccessfully to U.S. District Judge William B. Enright in San Diego.
Clarke appealed again, to the U.S. 9th Circuit Court of Appeals, the federal appellate court that serves nine Western states and Guam. In December, 1988, she won. A three-judge panel said the assessments are unconstitutional because they violate the origination clause, and it threw out the $50 penalty against Munoz-Flores.
Since then, federal courts in the 9th Circuit have not been accepting the special assessment. But because the fee was still being collected in other federal jurisdictions, the U.S. Supreme Court agreed to resolve the issue.
Government attorneys contended in the legal papers they filed with the high court that the law is not a revenue-raising measure because the money collected under the assessments is deposited into a special crime victims’ fund, not into the U.S. Treasury.
But Clarke claimed in her legal briefs that the measure is assuredly an instrument to raise revenue, regardless of where the money is deposited. Further, she said, amounts over a certain level--a “cap” that began at $100 million and is scheduled to climb to $150 million by 1994--are supposed to go into the Treasury’s general fund.
The arguments last month featured more of the same, and it was impossible to figure out which way the justices might be leaning, Clarke said. “You never know which way the court is going to go,” she said.
Public defenders are used to losing, she said. So, although a loss might mean the end of the fight in this case, it by no means would spell the end of the battle.
“You get discouraged constantly when a client gets whacked or a decision comes down,” Clarke said. “You just sort of have to redefine what a win means. When a client says, ‘Thank you,’ or, ‘I heard you were a good lawyer,’ or now if somebody says, ‘I don’t like the guidelines--you were right,’ you know, you redefine what a win is.
“You learn to take your pleasures in real small little ways. And you go on.”
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