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abbe smith
I've been doing this work for nearly 22 years now. And the only regrets I have as a lawyer are the instances in which I think I didn't lean hard enough on a client to take a plea.

Can you tell me Kelly's story.

When she was in her early 20s, Kelly went on the first extended summer vacation of her life. She traveled to upstate New York with a coworker of hers, a guy named Billy Ronald Kelly, somebody who worked in the same factory and whom she'd met as a result of mutual friends in the gay community of High Point, North Carolina. So she traveled to upstate New York to the Utica area, and hung out there for six weeks or so. …

While they were there, [Kelly and Billy] led very separate lives. He actually got day labor to sort of support them while he was up there; it was easier for him as a guy, apparently, and she had a little bit of money saved up. She basically just kind of played and hung out. She hung out with a women's softball team. …

Apparently, toward the end of the time, there was a brutal gas station robbery and murder, which of course at the time she knew nothing about. It was basically time for the vacation to end. Her money had run out. She had her father wire her enough money for her to travel home. And she and Billy Ronald Kelly traveled home in the end of August 1973. After returning from that trip, they basically parted ways, and essentially didn't see each other again. Kelly got back home and basically resumed her life.

Two and a half years later, there's a knock on her trailer door -- "Where were you on August 11, 1973?" She said, "I was in upstate New York, outside Utica." They showed her a picture of a Seaway gas station and asked her whether it looked familiar. She said, "Well, it looks familiar. I may have been there. Why?" And that was the beginning of her own personal nightmare.

photo of smith

Abbe Smith is a professor of law at Georgetown University and has been Patsy Kelly Jarrett's defense attorney for the last 10 years. Here, she summarizes Jarrett's case. Smith strongly defends pleas as a critical part of defense lawyering -- not because they are good, but because the system "stinks." Smith says she would have forcefully pressed Jarrett to take the guilty plea had she been her lawyer at the time. "It's the job of a defense lawyer to make our clients plead guilty if it's in their interest to do so. … Lawyering is all judgment. If I think my client's going to go down at trial, or in the appellate process, it's my job to make my client plead guilty and cut their losses, even if they're innocent." This interview was conducted on Jan. 30, 2004.

What was the crime?

The crime was a brutal gas station robbery and murder -- a 17-year-old high school student. He'd just graduated from high school, and he was on his way to one of the state universities of New York for college. He was working at a gas station that summer, a young man named Paul Hatch. He was brutally -- he was nearly decapitated -- murdered. A small amount of cash, something under $200, I think, was taken.

How did you get involved in the Patsy Kelly Jarrett case?

I was a law student at NYU law school. It was my second year in law school. I signed up to be part of what was then called the Prison Law Clinic. … There was an opportunity to actually represent clients who were in area prisons. … There were a bunch of cases that we could have worked on, and the teacher, Claudia Angelos, basically presented all the cases. She described Kelly's case, and I immediately said, "That's the one I want to work on."

You inherited the case from Claudia?

Well, I worked with Claudia on the case. Claudia had had the case for maybe not quite a year at that point. She'd been contacted by the superintendent of Bedford Hills Prison to look into the case. He was concerned. It's pretty unusual for a prison superintendent to care enough about an inmate there to actually seek counsel for them, but that's what he'd done. He'd contacted NYU, and through the administration of NYU, made his way to Claudia Angelos, and said, "I have somebody here who I think is innocent. I think you and the clinic might want to take a look at it."

So she picked up the case instantly. Then when it came time for me to be a student in the clinic and I heard about the case. … I understood that what I was signing on for was being involved in the preparation of a petition for writ of habeas corpus.

Patsy Kelly Jarrett had exhausted her state remedies -- not with the best of counsel. Her trial attorney wasn't an experienced criminal trial lawyer. He was a court-appointed lawyer. In research since, I've found out that this may have been his first homicide trial. He cared about Kelly. I think he probably did his best, but it was a sort of lackluster job. So that was her lawyer at trial.

She had a right to counsel in her first appeal, but she didn't know about that. So instead she turned to a jailhouse lawyer -- somebody who she'd met when she was briefly held at a medium-security prison that had both men and women, a guy who was something of a famous jailhouse lawyer at the time. [He] handled her appeal, and that's not great counsel.

She was offered a plea at the first trial?

Before going to trial up in Utica, she was offered a deal that, if she pled guilty to robbery, then the murder charges would be dismissed, and she would be sentenced on the robbery alone and face, I think at the time, it was a maximum of 15 years, which she turned down, saying she would not plead guilty to a crime she didn't commit. So she exhausts her state appeals, and we get the case as a federal habeas in the clinic.

There are actually two issues at first. There was the mistaken identification issue, which was a due process issue, that the identification testimony should not have been allowed at trial because it was so unreliable. It was a one-witness identification case. It was one man who had wandered into the gas station apparently at around the same time the crime was occurring and bought some gas. Two days after the incident, he gave a statement to police who were investigating to see whether anybody had wandered onto the crime scene at the time the crime was occurring, and he described his experience.

What he said was he was served gas by somebody he'd never seen before. He described that person fairly well, and in a way that matches Billy Ronald Kelly. He says that at the gas station at the same time there was a car that he described as a bluish-green sedan, and in that car there was a driver who pulled up to the pumps opposite him. He basically says that he didn't pay that much attention to that person, that he can't say for sure. He thinks that person may have been a woman. He didn't see the person's face because the hairstyle of the person was such that it blocked their face, shoulder-length brown hair, which frankly is consistent with either a man or a woman in 1973.

That was it for the description of the person who was the driver. Three and a half years later, at trial, he swears that it was Patsy Kelly Jarrett that he saw driving that car, and he says he would stake his life on it.

So that was issue number one, and that was always the biggest issue. It was a case of mistaken identification. The jury should never have been allowed to have heard the testimony of that one eyewitness. Allowing him to testify would be so prejudicial to Patsy Kelly Jarrett, because that kind of testimony sways a jury. An average person saying, "That's the person, I swear," is very persuasive, but there was nothing on which that identification was based. I mean, he saw a person literally for a couple of seconds at a gas station. That was issue number one.

Issue number two was severance. We had first tried to frame that issue as a federal constitutional violation. Kelly was tried with her co-defendant, Billy Ronald Kelly. The evidence against him was overwhelming; not only was there that very good description, initially, but the sole eyewitness also participated in drawing a composite that matched Billy Ronald Kelly. … There was also fingerprint evidence. Fingerprints were found on the adhesive tape that was used to bind and gag young Paul Hatch in the course of his brutal murder. So the evidence against Billy Ronald Kelly was overwhelming. …

One could say [Kelly] was convicted as a result of guilt by association more than anything else. So we did the best we could to formulate a constitutional issue challenging their joint trial. Unfortunately, it's hard to fashion that argument as a federal constitutional argument, because there's enormous judicial discretion in deciding whether people are tried together or apart. Almost always, the single most important issue is judicial economy. If it's the same witnesses that would testify at both trials, it makes more sense from the perspective of economy that you bind the two together.

We ended up having to withdraw the severance claim, because Claudia learned that basically we weren't going to win that in the federal courts.

But ultimately you won.

Kelly won before the United States District Court for the Southern District of New York. The court held that the identification testimony should never have been allowed at trial, and the court went even further and suggested that this may well be a case of innocence.

So Claudia calls me up and she says, "We won. It's fantastic, we won." And I said, "That's great." She said, "Not so fast. You know the state is going to appeal it, and the Circuit Court is not going to be as good." In the meantime. Kelly's offered a plea by the state of New York to what is essentially time served. She'd have to serve a little bit of time, but she'd be released if she pled guilty.

To both counts?

To everything. Kelly refuses. She refuses to plead guilty to a crime that she did not commit. So the case is appealed, as Claudia predicted, and the United States Court of Appeals for the Second Circuit reverses.

What was Claudia's advice to Kelly?

Well, from what I understand -- and I wasn't there, I was off having my own life, I was a public defender in Philadelphia at the time -- Claudia advised Kelly to take the plea. But my understanding is -- and Claudia has a lot of guilt about this -- that she didn't press her very hard. She basically said, "You should do this. It's likely that the Court of Appeals will reverse. You've served 10 years in the maximum-security prison. It's time to get out." That was Claudia's advice.

But Kelly apparently believed in two things. She believed in the American system of justice. She was very heartened by the District Court decision. She felt vindicated and so she thought, "At last, I'm going to be vindicated by the higher court as well." So she placed her faith in the justice system, and she also placed her faith in God. She had become a devout Catholic while in prison, and she believed that God would free her. Well, it was misplaced faith on both counts.

Claudia accepted Kelly's decision not to take the plea offer?

Claudia apparently deferred to her client's will. She laid out the plea offer. She conveyed her advice to the client, and Kelly said, "No, I don't want to take the plea," and so Claudia respected that. I'm sure that Kelly was quite adamant about it. Kelly can be very strong-willed, and she can be very articulate sometimes. I'm sure she said, "I can't do it, Claudia, I can't. I wouldn't be able to live with myself. It would be a lie. I couldn't put my hand on the Bible and say to the world that I did this horrible crime when I didn't do it." And Claudia respected that, deferred to that.

You disagree?

I do. I disagree. I have nothing but respect for Claudia; she's a wonderful teacher and she's a terrific lawyer. She was primarily, at the time, a prisoners rights lawyer and a very good appellate lawyer. She wasn't a criminal defense lawyer, and I think that put her at a disadvantage. …

Had I been the lawyer advising Kelly at the time, I don't know how to put it any more plainly than this: I would have made her plead guilty. It's the job of criminal defense lawyers to make our clients plead guilty. It's not our favorite part of the job, and it's not pretty when you have to put it that way. But it is an enormous part of the job of criminal defense lawyering to make our clients plead guilty when it's in their interest to do so.

It's very difficult to try to make an avowedly innocent client plead guilty. Most of us don't become criminal defense lawyers because we want to make innocent people plead guilty. But the system stinks, and here's somebody who had been locked up for 10 years in a maximum-security prison, and everybody knew that the Court of Appeals was going to reverse. There is this one moment, this one opportunity to free her, and I would have done everything within my power to get her to plead guilty.

What would you have done?

I would have spent hours with her. I would have gone up day after day after day. I would have been relentless. I would have brought her brother up to Bedford Hills Prison to put pressure on her to plead. I would have brought her father, who was aging and infirm, up there to Bedford Hills Prison. If I had to drive down to North Carolina myself and put them in my car, I would have brought them up to the prison and I would have ganged up on her. I would have had them beg her. I would have had them cry. I would have had them say, "Please, you only have this one life." I would have had her father say, "I don't want to die while you're in prison." And I would have said to Kelly, "You know what? You can fight for your good name outside the prison walls. But get out first."

Kelly says nothing anyone said could have convinced her to change her mind.

I know she says she wouldn't have, and maybe it's arrogant on my part to think I could have convinced her. But one of the things that Claudia says that I think is poignant, is that is she, Claudia, thinks that the way in which she allowed Kelly to make her own judgment has been a double hardship on Kelly; because not only did Kelly refuse the plea and she's been locked up ever since, but now Kelly has only herself to blame. In Kelly's mind, Kelly made this decision. …

Maybe I would have freed her from that. She could have blamed me, and I would have told her, "You know what? You get out and you feel bad about it. You look at yourself in the mirror and you think to yourself, 'I can't believe I pled guilty to this terrible thing,' blame Abbe. Blame Abbe. Tell the world, 'My lawyer made me do it.'"

Is this your role as a defense lawyer?

I believe this is a critical part of defense lawyering. It's not our favorite part. I'd much rather go to trial. Going to trial is fun. But I'm not the one that's doing the time; my clients are doing the time, and the one thing that our clients don't have is perspective. When they've been accused of a crime, and especially a terrible crime, they can't see outside their situation. I've been doing this work for nearly 22 years now, and the only regrets I have as a lawyer are the instances in which I think I didn't lean hard enough on a client to take a plea. Those are my regrets. …

But there's a line, ethically, about how far you can push a client to take a plea?

There is a line, but unfortunately it's not a very firm line. It's a matter of individual lawyer conscience. I haven't crossed it yet and I'm pretty fierce. I believe in arm-bending; I don't believe in arm-breaking. But I will absolutely bend a client's arm to get them to plead guilty. Now maybe that's a sort of obscure difference, but I think there is a difference. I don't want to break somebody's will, but I do want to bend their will. …

I understand [Kelly's] moral dilemma. But I feel it's part of my job to relieve her of that burden. Let me take on that burden, blame me. Blame me and blame the system. I understand it's an existential question, and who am I to say that her life would be better off? Maybe I'm really narrow-minded, I'm so liberty focused. Maybe I'm not thinking about dignity enough. Maybe it would be an indignity to Kelly to live her life, having put her hand on the Bible which she holds dear and saying she did a terrible crime that she didn't do. …

I'm sorry, I just don't believe it. I don't believe that the existential angst would be so great. She has spent 27 years locked up in a cell. The cost is too great. I don't think there's any contest. I think liberty wins. … She's a really good person. She's devoted herself to taking care of people who are dying in the prison. Think of all the things she could have done out there. I just don't buy it.

You believe it's the defense lawyer's role to pressure clients to plead guilty?

It's the job of a defense lawyer to make our clients plead guilty if it's in their interest to do so. … Lawyering is all judgment. If I think that my client's going to go down at trial or in the appellate process, then absolutely it's my job to make my client plead guilty and cut their losses, even if they're innocent.

Even if they lie?

Even if they have to lie to do so. Even if they're innocent and they plead guilty. … I would make a client lie and plead guilty to something they didn't do to get out of prison, yes, I would.

So much for your belief in the system.

Good criminal defense lawyers are skeptical; you have to be. Tragedies happen every single day in the criminal justice system. If you believe in it, you're a little naïve. It's not that I don't think that justice ever prevails in the system. But you hang around the criminal justice system and you see plenty of injustice. You'd be foolish to tell a client, "Oh, you're innocent, you'll be OK." The truth is not always the best defense. [That] is the unfortunate reality. Good stories make good defenses, and sometimes the truth is not a very good story. …

I think justice is more important than truth. That's why I do the work that I do. Sometimes truth has to give way to higher values. I think innocent life is more important than the truth, and Kelly's is an innocent life. It's an innocent life lost.

Explain the dilemma Kelly is facing as she comes up for parole.

There is a dilemma for innocent people who've served their time and then appear before the parole board, because the parole board is looking for two things: an admission of wrongdoing and an expression of remorse. Of course the innocent prisoner cannot do that, because they didn't do the crime. For Kelly, it's complicated. My counsel at this point is different than what it would have been in the face of a plea offer.

Now, this is how Kelly has lived her life, as an innocent person wrongfully convicted. She will maintain that posture before the parole board, and I think probably she should at this point. That's her identity. But what Kelly will do before the parole board is she will express a kind of generalized remorse, which she genuinely feels, oddly enough. She feels like she could weep for the parents and family of Paul Hatch. … She says she feels remorse that she spent any time at all with Billy Ronald Kelly, who turns out to be a brutal killer, and that perhaps her car was used to help commit this terrible crime; and that to the extent she had any association with him, she has regret and remorse. I think that's how she'll handle it.

But it's a terrible irony. The innocent people who spend years and years in prison, then routinely get sent back to spend more time in prison when they face the parole board because they're not sufficiently remorseful or penitent -- … I'm hoping that some of the work that we've done to sort of make Kelly's case, some of our efforts to get clemency for her -- Maybe she's come to the attention of some of the higher-ups in the criminal justice system.

She had a clemency hearing. I'm hoping that she made a favorable impression. I believe she probably did, and that maybe in view of the time that she has served and her good work in the prison, maybe they won't hold it to that standard. But they could very well give her two more years and say she wasn't remorseful or she didn't accept responsibility.

Tell me about the Kelly's appeals for clemency.

Over the past eight or nine years, we've filed several petitions for clemency -- first, before Governor Cuomo, and then before Governor Pataki to try to get Kelly released on the grounds that she's innocent. The last time we came closer than we'd ever come before; Kelly actually had a hearing before the clemency board. One of only a small handful of people to have a hearing, and she was denied.

Lenny Bruce received clemency. As my grandmother would say, "He should rest in peace, but I don't think he's up there in heaven saying that it was good that he got clemency. He's probably saying, 'She should have gotten it. Give it to her.'"…

I think probably there is some fear that once a governor acknowledges that there are innocent people imprisoned in their state that that there's a big problem, and that everything will unravel. Well, things did unravel, in Illinois. I mean Governor Ryan found that there were cases of innocent people wrongly convicted, wrongly imprisoned. I was hopeful that Governor Pataki, who at least professes to be the same sort of moderate Republican as George Ryan, would be moved by this case.

It wasn't a hard case. It's not like anybody could say she was getting away with anything. She spent 27 years. She's basically served her sentence, and there's always been a strong case of innocence.

The fact that the U.S. District Court found in her favor is really significant. Those cases are not easily won in the courts. There's enormous deference to jury verdicts in identification cases. That a United States district court found that there were enough problems with that one witness identification case, I think is significant.

Maintaining her innocence hurt Kelly?

It did end up hurting her, yes. Kelly maintaining her innocence has caused her to serve 17 more years than she would have had to have served had she taken that plea offer when she won in the federal District Court. She'd served 10 years. She could have gotten out.

You don't believe in the system?

I'm deeply skeptical of the system. I believe in it enough to be a lawyer in it. I actually believe in juries, I do. … The problem with the criminal justice system is that poor people routinely get poor counsel in very serious cases. Kelly had barely adequate counsel, is what I would say. We're looking at a life sentence. You can't have barely adequate counsel in a capital case, which happens all over the country. I have some belief in some aspects of the system, but she was not well served by the system.

She believed in the system.

She believed way too much in the system. Her story's tragic, because she believed she'd be found not guilty by the jury. She was shocked. She took the stand, she testified, she told 12 ordinary people, "I didn't do it, I would never do such a thing." She had no prior record of any kind, not so much as a parking ticket. She believed she'd be acquitted, and then she's found guilty. She was shocked. Here's the difference between her and me -- I'm not shocked. I've been around the block enough to know that tragic injustices happen routinely. …

What's most important now for Kelly?

The most important thing for Kelly is to get out. That's always been the most important thing. … She is afraid she'll die there, and there's reason to fear -- she's seen people die there. She's held people in her arms as they've died. … I don't want her to die in prison. I don't want her to get any older than she is in prison, I want her to come out and have a life.

At any price?

No matter at what price. She's probably the strongest person I know. I couldn't have served that time. So I believe that if she gets out, she'll be OK. If she survived this ordeal, then she can survive anything. It won't be easy for her, getting out. Being locked up for this many years is crippling. It's going to be terribly frightening for her to sort of reorient herself to the world as it is now.

But she's a very strong person, and she's a very resilient person, and I think she'll do OK. I would just like to see her happy and free. … I'd like to see her walking on a beach. I'd like to see her riding a horse again. I'd like to see her with her brother. I'd like to see her among the rest of us.


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posted june 17, 2004

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