the aftermath of the Tucson shooting continues. Accused mass shooter Jared Loughner has been assigned Judy Clarke, a San Diego attorney with federal death penalty experience. Larry Burns, a U.S. district judge based in San Diego was assigned to hear the case after Arizona judges recused themselves.
Guest
Kent Davy, editor, North County Times
Michael Smolens, government editor, San Diego Union Tribune
David Rolland, editor, San Diego City Beat
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This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.
PENNER: I'm Gloria Penner, and I'm joined by the editors at the Roundtable these days in San Diego. The aftermath of the Tucson massacre, and the San Diego connection, Governor Brown's budget proposal and its possibly local effect, and we'll interpret the message that mayor Sanders sent in his state of the city address. The editors with me today are Kent Davy, editor of the North County Times. It's good to see you, and happy new year, Kent.
DAVY: Happy new year, Gloria.
PENNER: Michael Smollens, politics editor for the UT. It's good to see your lovely face, Michael.
SMOLLENS: Thanks for inviting me.
PENNER: And David Rolland, editor of San Diego City Beat. Always exciting to have you on the panel, David.
ROLLAND: I'm happy to be here.
PENNER: And we're happy you are. Our number, if you want to join our conversation, and 1-888-895-5727, 1-888-895-5727 KPBS. Well, we're gonna start to a reaction to events in Tucson on Saturday which does -- do typeset as people look for an explanation. San Diego's becoming increasingly involved in the aftermath of the Tucson massacre. Two San Diegans have been named as the judge and the defense attorney for accused killer, Jerry Lee lover in. So Kent, before we turn to the political and societal forces that may have generated this tragedy, let's look at attorney Judy Clark and judge Larry burns. Give us some background on them.
DAVY: Well, Judy Clark once ran the federal defenders' office in San Diego. She's in private practice, she's part of the federal death penalty resource -- penalty resource counsel that helps find lawyers for federal death penalty cases. She's got a lot of experience handling these kind of high profile cases. She was involved in the union bomber case, the Olympic bomber case, from that Olympics. So sleaze pretty well positioned to take on a big case like this.
PENNER: Why was she selected as the defense attorney?
DAVY: I suspect because of the extensive big case reputation that she has, and that she's in the southwest.
THE COURT: Okay. Well, do we know anything about who some of her clients have been that would have caused her to be considered?
DAVY: Well, you know, the union bomber, that was a huge case.
PENNER: That was.
DAVY: If you remember that. That was the man from -- was it Washington or -- I've forgotten now, where exactly he was, that was kind of a hermit making and distributing bombs by mail, ended up in the federal penitentiary for the rest of his life.
PENNER: All right. Well, taking a look at Judy Clark, one wonders whether she has any kind of a reputation. Have any of her clients bye-bye acquitted or given lighter sentences than expected? What do we know about her, Michael?
SMOLLENS: Well, what we know about her, and even the judge in the case said some very nice things about her in a profile some time ago that she's an extremely capable lawyer. And she takes on what might be viewed, I don't want to say hopeless cases, but I think cases that most people believe the person is clearly guilty, and providing them the best defense. It's kind of an interesting thing, a lot of people light look at it, well, why? But I think in our system, even the more heinous crime, maybe it's important 2067 the strongest it was to make sure justice is carried out properly, and I think basically she's trying to save people's lives because she's opposed to the death penalty.
PENNER: Do we know, David, whether she tends to specialize in cases where guilty is not in doubt? I mean, we're talking about the union bomber, and it's true that lover in has been accused but --
SMOLLENS: Let me jump in. Don't confuse factual guilt or factual, did somebody do a specific act with guilt in the legal sense. She jumps into cases in which guilt is always at doubt until there's a finding of guilt. 'Cause that's a legal piece of pasta that's thrown against the wall. As opposed to the factual, did somebody do a physical act.
PENNER: Okay. So you are innocent until proven guilty.
SMOLLENS: Innocent till proven guilty.
PENNER: That's the whole point.
ROLLAND: And her task here, I believe will be to show that -- to -- you know, to help Jared lover in avoid the death penalty. And she'll do it very likely by arguing that he is so mentally capable of certain decisions that his life should be spared.
PENNER: What's your feeling, David, on why an attorney wants to take on cases where the outcome seems to be inevitable?
ROLLAND: Well, I think for a lot of attorneys, I think that's why some attorneys go into the business. To -- because they're so committed to the notion of -- you know, adequate legal council for societies allegedly worst offenders, that everybody deserves a good defense.
PENNER: Kent?
ROLLAND: No matter who they are.
PENNER: You want to add something?
DAVY: We have a system in which a lawyer's obligation is to represent a client to the best of his or her ability. That's kind of all in for the client. And good lawyers understand that they are not concerned with -- so much with the nature of their client as they are with the idea of upholding their end of the bargain the justice system has made. And that is, you represent your client to the best of your ability. This is a woman who has spent a career defending in inn popular cases, particularly those involving having a death penalty component to it. She feels strongly and passionate against the death penalty. And I suppose, if I could climb into her head, which obviously I can't, that there's gotta be a piece of I don't want my client to go to the death peptide.
PENNER: Would you agree with that, Michael? That one of the reasons for taking on cases that might be considered unpopular and, and certainly the Unabomber was not a popular case, or not a popular client, and I doubt that Mr. Lover in is a kind of -- if not hidden, at least an element of being against the death penalty, you know, capital cases.
SMOLLENS: Well, I think Kent struck on it, we're rail talking about the system of justice here, and I reflect on a column that I clothing, Logan Jenkins, wrote during the Chelsea King situation, he said repeat after he, John Albert gardener deserves the best defense possible. Because the last thing you want is for the lynch crowd mentality to come into this. You want an absolutely fair trial, particularly in the worst cases, I think when people are convicted under those circumstances, it just strengthens the justice system, even though that case, of course, went to a plea bargain, but I think that it's a hard argument to make when things are so heinous, but that is the higher calling of this country, to make sure the legal system stands as it was intended to, and that means giving a strong defense for these seemingly obvious guilty cases and unpopular cases.
PENNER: Our inspect is 1-888-895-5727. 895 KPBS. I'm sure you're gonna want to join this conversation. We're talking about the local folks who are involved in the case of Jared Lee lover in, the accused killer in the Tucson massacre case. And we're talking about Judy Clark, at the moment. Sheave has been appointed the confuse attorney and we're talking about the reasons why people would take on cases with definitely unpopular clients. Again, our number is 1-888-895-5727. What is your feeling about that? Do you agreeing with the panelists at this point that this is a case of where an attorney, obviously idealistically wants to see justice served, and may also have a feeling against the death penalty? 1-888-895-5727. The federal judge who has been chosen is also from San Diego. Of the do we know why judge Larry burns of chosen, Kent Davy?
DAVY: Well, I don't know about the why. Will I can tell you about the connection to San Diego. He is considered a pretty straightforward, straight shooting kind of no nonsense center judge. He came up as a dependent in the San Diego District Attorney's Office. He worked as a prosecutor in vista, served at the U.S. attorney's office. He is -- as far as I can tell, from talking to my reporters, very well respected as a judge. The interesting thing to think about now with Smith being -- or Clark, excuse me, Clark being the defense counsel, with burns being the judge, and a case that has generated so much attention in media, where would the logical place for a change of venue be? San Diego.
PENNER: San Diego? I know that that's been thrown out as an idea. But you think that it's logical for it to be here in San Diego. Of.
DAVY: I do. Absolutely. Of.
PENNER: All right. Let's take a look at that, Michael. I mean, moving the venue to San Diego.
SMOLLENS: One thing I just wanted to get back, you said, why was the judge chosen. The first reason is because all the federal judges in Arizona accused them, because a federal judge was one of the victims in this shooting of so they had to go elsewhere, and the Southwest was an obvious choice. Another aspect of the judge here, judge burns, is that he's known for really expeditious work. He really moves through cases. Whether that was a factor or not, I don't know. He did do the duke Cunningham case and kept that on track.
PENNER: Well, he is a busy judge. He's now presiding over the case of George Jakubeck who was accused of building bombs in his Escondido house. What might his reputation, Michael, as a strict sentencing judge have on this case?
SMOLLENS: Well, before we get to that, I'd sort of like to get back to the change of venue. The defense attorney, Clark, will she likely ask for one because of the publicity. One of the questions that I have in this day and age, while certainly the heat is so much in the Tucson and Arizona area, in this overwhelming media saturation age, you know, does a change of venue really make that much of a defense in terms of people's exposure to the case? Now, the emotions may be different of the so I'll be ask interested to see if, you know, and then there also is the aspect that cases should be tried in the area in which things occurred. The but because of the San Diego people involved, that this would be a likely place for it. As far as the judge, you used the terms no nonsense, I used the term, he's known for an expeditious moving through cases and keeping them on track. All those things led to his credibility, I think, and the fact that he's chosen sort of shows that.
PENNER: All right. Let's turn to our callers who'd like to get in on the conversation. We'll start with Gerald in San Diego. Gerald, you're on with the editors.
NEW SPEAKER: Good morning. I've been listening and I just want to comment that I believe Judy Clark deeply believes in the United States constitution. And it is the constitution that guarantees the right to a vigorous defense, and a thorough defense in every case, even the Nuremberg war crimes trial proved that we can take the most heinous among us and give them a fair trial. And it's more the belief in the United States constitution than it is the belief or disbelief in the death appellant or any given aspect of the law that drives somebody like Judy Clark to provide an excellent, excellent defense to her client.
PENNER: Well, Gerald thank you very much for that. That's really helpful. And you know, I'm convinced you're accurate, that there is this deep belief in the constitution. Of I mean --
ROLLAND: Certainly hope so.
PENNER: What were you do going to say? I'm sorry, David.
ROLLAND: No, I was just chiming in that I certainly hope she is deeply committed to the constitution or she shouldn't be doing what she's doing.
THE COURT: All right, we have time for another caller before we did to the break. Let's hear from norm in imperial beach, and I want to thank Gerald for his comment. Norm? Yes. Of.
NEW SPEAKER: Hello?
PENNER: Yes, please go ahead.
NEW SPEAKER: Yeah, I wanted to bring up a really wonderful lawyer that I will reflects also on this lady, and I'm sure that maybe she, you know, had some -- what is the word? Inspiration from William Kunstler, you know. Who made an entering statement about lawyer in general, which was the Nazis had laws. And everybody went along with them, and all the rest of that. Now, in the case of this obvious absolute maniac, I think that where we fall apart is not having decent mental health facilities to recognize when you have all the symptoms and red flags coming up on an individual like this particular fellow who decided to become God.
PENNER: I understand what you're saying, Mr. Kunstler. And certainly, the mental health aspect of this conversation and the dialogue around the tragedy has taken off in a very vigorous way, and I'm sure we'll address it as we go along in this program. Thanks for your comment. Before we take more comments and we listen to the editors on other aspects of the case, we're gonna take a short break. This is the Editors Roundtable. I'm Gloria Penner.
This is the Editors Roundtable. I'm Gloria Penner, I'm at the round table today with Michael Smollens from the UT, and David Rolland from San Diego City beat, Kent Davy from enormous. And we are talking about the -- some people call it the Giffords case, it's certainly the case of the massacre in Tucson where many people were killed, and many more were injured. Of and the speculation has been that because there is a confuse attorney now assigned who is from San Diego and also a presiding judge from San Diego that the venue might actually move to San Diego. And so we're about to start talking the last few minutes of this segment about the implications for San Diego. And we actually have a caller on the line who is probably already touching on that. So let's start out with Denny in Encinitas, Denny you're on with the editors.
NEW SPEAKER: Yes, hi, good morning, Gloria. Thank you so much for taking my call.
PENNER: Good morning. You're welcome.
NEW SPEAKER: And good morning, gentlemen. My question is my concern is where are we going to find 12 people during the voir dire system to even find someone that will give, despite the best efforts of the judge and counsel this individual a fair trial? Timothy McVeigh was moved far enough away from Oklahoma city. And as much as I know our system may not be perfect, it's the only one we have. And San Diego is obviously one of the better courthouses. I speak from personal experience. This is almost insidious to think that we're going to find 12 people that haven't heard of this, being only 400, 500 miles away from Tucson.
PENNER: Okay, we'll start off with Kent Davy on this. Thank you for your question, Denny, and maybe you should explain voir dire.
DAVY: Okay. Voir dire is the process by which the Court working with the attorneys selects from a jury public the people who will actually sit on the jury by asking them lots of questions about who they are, what they think. The standard, generally, is not that you haven't heard about the case. The standard is that have you given what you have heard about the case, if you've heard something about it, can you set that aside and make a fair unbiassed, independent judgment based only on the facts are as inside the courtroom? In a world that as Michael -- or David pointed out earlier, in which media so saturates this, yeah, this story rockets all the way across the United States.
PENNER: And the world.
DAVY: And the world. So there are always to be difficulties in finding people that have never heard about the case, although you might be surprised. There are people walking around probably on the streets of San Diego that have paid no attention, whatsoever.
PENNER: Michael?
SMOLLENS: Well, you know, and Denny, I think her name was, she brought up the McVeigh case where there were concerns that the jury was not fair. I mean, clearly they heard about the, you know, the bombing as I'm sure, I bet all 12 jurors ultimately who sit elected here in Tucson will have heard that. But it's trying to find the impartial jury, and there will be facts laid out there, and despite their impartiality, they will rule one way or another, and I think most people it will come down to a death penalty or not, but let's hear what defense attorney Clark presents in terms of this fellow's situation.
PENNER: All right. You know what? I found it interesting that the leader of the prosecution team is Wallace Kleindienst. He is an assistant U.S. attorney, and he has quite a pedigree because his father, I believe, was the attorney general, was it under Nixon?
DAVY: Yes, Richard Kleindienst.
PENNER: Richard Kleindienst under Nixon. And if I recall, during the Watergate scandal, he resigned.
DAVY: Yes, and he eventually plead guilty to a misdemeanor charge of misleading Congress.
PENNER: So that's the leader of the prosecution team. David, I want to ask you something, if the case is moved to San Diego, can we expect the arguments over inflammatory political speech, the concerns about weak gun laws, mental instability, and the absence of civility stir up our community? Will our community get engaged in something like that?
ROLLAND: I don't think it has anything to do with San Diego. I think San Diego would be no different than any place else in the country in talking about those issues. I mean, that's what we're talking about now, and I don't know that the venue will have any bearing on that.
DAVY: We already -- in some respects, that conversation is going on already about the civility of --
ROLLAND: It's going on everywhere.
DAVY: Particularly here though because of the immigration issues.
PENNER: Had okay, well, we have time for another call, let's hear from Jim in La Jolla. Jim, you're on with the editors.
NEW SPEAKER: Oh, yeah, thank you very much for taking my call. And I just want to say I'm very sorry for the victims and all that, and I really am. And on the subject of lawyers, I think a lot of them do it for a notoriety and sometimes for the money, to become famous. I know that the guy that wrote the book for the helter-skelter, Charles Manson defense, and I think the lady wrote a book for the OJ defense, and stuff like that. And you know, there's nothing wrong with that. I mean, you know, if you write a book and become famous, you know, that's -- make a lot of money and stuff.
PENNER: Well, that's certainly one motivation, I would think. What do you think, Michael?
SMOLLENS: Well, just in this case, defense attorney Clark has a reputation of being extremely low profile for somebody thrust into the middle of these hugely intensive cases that are covered by the media, she thought does not speak publicly. She hasn't done the things that this per caller had mentioned. So who knows what she would do ever this? But I don't think you can ascribe that kind of motivation to her. This has been her life's work for many, many years.
PENNER: Yes, go ahead.
DAVY: And when you start thinking about how -- what kind of defense may be presented and what this -- the issues the jury ultimately are gonna face, while it may ultimately be a death penalty case, I suspect I would guess from everything that I've read about the defendant, the real issue in this case is gonna be whether or not he is guilty by reason of insanity and a mentality illness defense imposed in front. Clark had a case, if you remember, Susan Smith in 19 nor, she was the young mother who put her car -- her kids in a car and pushed the car into gear and off into a lake and drowned her kids. She was involved in that defense. And again, that was a mental illness defense that was imposed prior to getting to a death penalty question.
PENNER: Okay, I'm gonna ask you one other really kind of brief question on this, are and then we're gonna move on. What is the danger of having a tragedy spur bide someone, we'll say with a mental illness, forge public policy, such as making it tougher to buy a gun or making it illegal to carry a fireman within a thousand feet of lawmakers?
DAVY: I'm not sure I understand your question.
PENNER: My question is, we have changes in public policy all the time. What is the danger of having a horrible case such as this spur that public policy? Or change that public policy?
DAVY: In -- among the legal scholars there is an old notion that tough cases make bad law. And it's kind of the same kind of situation where you have a very emotional event and the emotional reaction pushes legislation that may not necessarily be the wisest course of action in dealing -- remediating whatever the problem is.
PENNER: Final comment David?
ROLLAND: Yeah, in this case it's a little bit different because one of the main laws that some lawmakers are trying to get past was already in place up until 2004 when it lapsed. And that was the assault weapons ban which would have made it very much more difficult that Jared Loughner could not have bought the same kind of clip that allows him to shoot off 33 -- 33 bullets. He could have bought a new one that would allowed him to shoot ten bullets but that might have spared some people's lives. It could have been a nine-year-old girl, it could have been a federal judge, it could have been any of three senior citizens who were killed so much that's not -- that would, in my opinion, would not be a -- you know, a dangerous situation where we're going running around with our hair on fire over something. That was a sensible law that simply lapsed.
PENNER: Okay. Thank you very much, David. And thank you gentlemen for the good discussion on that. Let's move on.
