Abbe Smith

Abbe Lyn Smith (born 1956) is an American criminal defense attorney and professor of law at Georgetown University Law Center. Smith is Director of the Criminal Defense and Prisoner Advocacy Clinic and Co-Director of the E. Barrett Prettyman Fellowship Program.

Before joining the faculty at Georgetown Law, Smith worked as a public defender in Philadelphia for many years and she was also on the faculty at Harvard Law School. Professor Smith regularly writes and comments on criminal defense, the criminal justice system, criminal prosecution, legal ethics, and juvenile justice. Smith wrote a memoir about her experience of helping Patsy Kelly Jarrett earn her freedom from a conviction for which Jarrett maintained her innocence.

Education

Smith earned a Bachelor of Arts from Yale College in 1978 and a law degree from the New York University School of Law in 1982. During her second year of law school at NYU—while working in the Prison Law Clinic with Professor Claudia Angelos—Smith began working on Patsy Kelly Jarrett's federal habeas corpus petition.^[1] In March 1977, a jury found Jarrett guilty of two counts of murder and two counts of robbery, but Jarrett maintained her innocence.^[2] Smith worked on Jarrett's case for the next 25 years.^[1]

From 2005-2006, Smith was a Fulbright Program scholar at the University of Melbourne School of Law in Melbourne, Australia.^[3] An article based on Smith’s research, Defending the Unpopular Down-Under, was published by the Melbourne University Law Review.^[3][4]

Legal career

Public defender

After law school, Ms. Smith began work as an assistant public defender with the Defender Association of Philadelphia.^[5] She would later work as a member of the Special Defense Unit, and a Senior Trial Attorney.^[6] In 1988, Smith represented the victim of a LGBT hate crime, but she was hesitant to do it since she was a defender at the time.^[7] She remarked on this time in her life: "In some ways, those were the happiest years of my professional life."^[8] While working as a public defender in Philadelphia, Smith began working as a law professor, teaching criminal law at City University of New York Law School.^[8]

While working as a public defender in Philadelphia, Patsy Kelly Jarrett won her habeas petition before the United States District Court for the Southern District of New York.^[1] After this, the state offered a plea that amounted to time served.^[1] Since Smith was in Philadelphia, Claudia Angelos counseled Jarrett on the plea bargain offer that she ultimately refused.^[1] Many years later, Smith said she would have gone to great lengths to convince Patsy Kelly Jarrett to accept the plea offer.^[1]

In 1984, Smith published Carried Away: The Chronicles of a Feminist Cartoonist.^[9]

Harvard Law School

In 1990, Smith moved to Harvard Law School where she was Deputy Director of the Criminal Justice Institute, a clinical instructor in HLS' criminal defense clinic, and a lecturer on law in Harvard's Trial Advocacy Workshop.^[5] The Criminal Justice Institute is the curriculum-based criminal law clinical program of Harvard Law School.^[10] While working at the Criminal Justice Institute at Harvard Law School, Ms. Smith filed a brief as Amicus Curiae in the Supreme Judicial Court of Massachusetts in Commonwealth v. Fuller that argued a defendant had a right to inspect a complainant's rape counseling records, but the Court did not find for Mr. Fuller.^[11][12] She also filed a brief arguing that a special probation condition of Katherine Power prohibiting her from profiting from her sale of her story to the news media violated the First Amendment, but the argument was ultimately rejected.^[13]

Georgetown Law

Smith joined the Georgetown University Law Center faculty in 1996.^[6] Professor Smith is the Director of the Criminal Defense and Prisoner Advocacy (CDPAC) Clinic.^[14] In her CDPAC role, she directs Juris Doctor students representing defendants facing misdemeanor charges in D.C. Superior Court, facing parole or supervised release revocation from the United States Parole Commission with the Public Defender Service for the District of Columbia, and prisoner advocacy projects.^[15] Smith is Co-Director of the E. Barrett Prettyman Fellowship Program.^[14] The E. Barrett Prettyman and Stuart Stiller Fellowship Program combines instruction in the Law Center's graduate school with representation of indigent clients in the local courts of the District of Columbia.^[16] It trains recent law graduates in both the academic and practical aspects of courtroom advocacy.^[16] The program aims to improve defense advocacy in the criminal justice system by providing able, devoted counsel under mature supervision for indigent defendants.^[16] The fellowships are awarded to three recent law graduates selected to participate in a two-year program leading to the LL.M. degree.^[16] Former Public Defender Service for the District of Columbia lawyer Vida Johnson works with Smith in CDPAC and the Prettyman fellowship program.^[17] In her role at Georgetown Law, she still practices as a criminal defense attorney in the Superior Court of the District of Columbia. She commented on her attorney work in a 2014 interview: "law practice and teaching go together; they inform each other. I think I am a better teacher because of my lawyering, and a better lawyer because of my teaching."

From 1994-2005, Smith was the attorney for Patsy Kelly Jarrett.^[2] Over the years, Smith contacted journalists, public relations firms and wrote about Kelly in law journals.^[18] In 2003, Smith convinced documentarian Ofra Bikel—who was working on a film about guilty pleas for the PBS television show Frontline—to include Jarrett in the documentary.^[18] The documentary aired in 2004. During a March 2005 review of the case, the members of the New York Parole Board watched Bikel's account of Jarrett's story, and she was released.^[19] Smith said: "Prison officials said there is no doubt the film had a positive affect [sic] on the way the board approached Kelly's case and in their favorable decision."^[19] In 2009, Smith published a book about her work for Jarrett entitled Case of a Lifetime: A Criminal Defense Lawyer's Story.^[20] Case of a Lifetime was a finalist in the 21st Lambda Literary Awards for best lesbian memoir/biography. In Defending the Innocent, Smith discusses representing Jarrett and defending the innocent generally.^[21]

In 2010, she was elected to the American Board of Criminal Lawyers.^[22] Smith is on the board at the Bronx defenders.^[23] Smith also serves on the board of the National Juvenile Defender Center.^[24] In 2012, Smith was the recipient of the Legal Teaching Award from New York University School of Law.^[25] In 2015, Smith eulogized her friend and colleague Monroe Freedman.^[26]

Writings & commentary

Professor Smith writes and comments on criminal defense, the criminal justice system, criminal prosecution, legal ethics, and juvenile justice.^[27][28] Her scholarship has been cited in numerous opinions. In State v. Citizen, The Supreme Court of Louisiana cited her scholarship on indigent defendants' right to appointed counsel under Gideon v. Wainwright.^[29]

Criminal defense

In The Lawyer's "Conscience" and the Limits of Persuasion, Smith notes that interviewing and counseling are at the heart of legal representation. She argues that defenders should not refrain from the most forceful persuasion when to do otherwise would be destructive. She also notes that advising innocent people to plead guilty is sometimes the wisest course.^[30]

In Too Much Heart and Not Enough Heat: The Short Life and Fractured Ego of the Empathic, Heroic Public Defender, Smith writes about how one can sustain a career in indigent criminal defense. In order to do this, Smith recommends respect for clients, passion for the professional craft of defense lawyering, and a sense of outrage about the system. Smith writes about two former Prettyman fellows who left indigent criminal defense. Smith rejects Charles Ogletree's paradigm of public defenders as empathetic heroes.^[31]

In commenting on defending in the age of mass incarceration, Smith writes, among other things: "defenders bear witness to an awful social experiment gone awry," "defenders bear witness to the damaged children and adults who never stood a chance," and defenders learn how to handle losing.^[32]

In Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, Smith introduces the article with the defense lawyer's strategy in representing Justin Volpe. Volpe was accused of brutalizing Abner Louima.^[33] Volpe's lawyer had the controversial defense theory that Louima's injuries were the result not of police brutality, but of consensual anal sex with another man.^[33] In the article, Smith discusses the challenges that arise in counseling a client to plead guilty or go to trial; and the issues raised by theories of defense that exploit racism, sexism, homophobia, or ethnic bias.^[33] Smith argues that criminal defense lawyers must represent the accused with the "utmost devotion and zeal."^[33]

In Defense-Oriented Judges, Smith argues in favor of "defense-oriented judges."^[34] Smith notes that increasingly prosecution-oriented judicial aspirants ascend to the bench. Moreover, she notes some of these judges then are nothing more than rubber-stamps for prosecutors, "deferring to prosecutors at every step because they believe most defendants are in fact guilty,' or because they dislike defense lawyers."^[34] Smith believes the justice system needs more judges who care about protecting the rights of the accused, keep the government to their burden, and judges who have some compassion for those who come before them.^[34]

In The Bounds of Zeal in Criminal Defense: Some Thoughts on Lynne Stewart, Smith discusses the conduct that led to Lynne Stewart's prosecution and her approach to lawyering generally. Smith examines whether Stewart's view of zeal and devotion is at odds with the prevailing ethics and ethos of defense lawyering.^[35] Smith finds it troubling when the government criminally prosecutes members of the defense bar, especially when it goes after lawyers who represent unpopular clients.^[35]

Representing unpopular clients

Professor Smith writes about representing unpopular clients. She wrote an opinion article in the Washington Post titled, "What motivates a lawyer to defend a Tsarnaev, a Castro or a Zimmerman?"^[36] Smith co-edited How Can You Represent Those People? with Monroe Freedman.^[37] In the book—a collection of essays—criminal defense lawyers and others share stories about how it feels to defend people accused of crimes ranging from the ordinary to the horrific.^[37] In a piece on Judy Clarke and representing unpopular clients, she remarked: "Criminal defense is kind of a unique calling — not to sound pretentious — it takes a peculiar heart-set, mind-set to do the work for a career.” She continued, “We stand behind people who are often the most reviled.”^[38] She discussed why lawyers defend monsters on MSNBC.^[39] Smith wrote a column in Slate defending Hillary Clinton's representation of a man accused of raping a child.^[40] Smith went on the Diane Rehm Show to discuss sex offender registries.^[41]

Criminal justice system

During an interview with Frontline—responding to whether Smith believes in the criminal justice system—she said: "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."^[1] In The Burdens of Representing the Accused in an Age of Harsh Punishment, Smith describes how sentences lengths increased dramatically over the course of her twenty year criminal defense career.^[32]

Smith wrote an essay called In Praise of the Guilty Project that focuses on innocence projects in the context of the criminal justice system as a whole.^[42] In that piece—while she praises the work of innocence projects—she argues that getting innocents out of prison has done nothing to change America's misguided approach to criminal justice.^[42] Smith points out that America is the most punitive country in the world, prison conditions are brutal and points to the impact of mass incarceration on nonwhite communities.^[42]

Prosecutors

Smith often writes about prosecutors. In Are Prosecutors Born or Made?, Smith writes about her encounters with prosecutors and countless conversations during the course of her thirty year criminal law practice.^[43] In Can You Be a Good Person and a Good Prosecutor?, Smith examines the morality of prosecution.^[44] First, she explores the context of criminal lawyering at the millennium and what it means to prosecute under current conditions.^[44] Then, she discusses whether it is possible to do "good" in this context—that is, whether a well-intentioned prosecutor can temper the harsh reality of the criminal justice system—in view of the institutional and cultural pressures of prosecutor offices.^[44] Smith concludes by answering the question posed: she hopes so, but thinks not.^[44]

In A Call to Abolish Peremptory Challenges by Prosecutors, Smith argues that courts should acknowledge the unenforceability of Batson v. Kentucky, the landmark United States Supreme Court case prohibiting prosecutors from excluding jurors in criminal cases based solely on race, and admit that the only way to end this insidious practice that leads to less diverse juries is to abolish peremptory challenges by prosecutors.^[45]

Sexual orientation

In The Complex Uses of Sexual Orientation in Criminal Court, Smith praised the rise in high-profile prosecutions of LGBT hate crimes, such as the Matthew Shepard case.^[7] Smith noted, however, that the LGBT accused were badly treated throughout the criminal justice system: "police are nasty to them; marshals, court officers and other court personnel often mock them; it is the rare judge or magistrate who treats these defendants with dignity or respect."^[7] Smith also considers the complex use of sexual orientation at trial.^[7]

Victim to perpetrator

In The "Monster" in All of Us: When Victims Become Perpetrators, Smith focuses on the case of Aileen Wournos; arguing that “people to whom terrible things are done and people who do terrible things … are often the same people”; and asserting that “among those who have committed serious crime, it is the rare perpetrator who has not also suffered. It is the rare death row inmate whose life does not read like a case study of extreme deprivation and abuse. It is the rare juvenile incarcerated in an adult prison for rape or murder who has had anything other than the cruelest of childhoods … [I]t is well documented that [abused and neglected] girls grow up to become the vast majority of women in prison.”^[46]

Juvenile justice

Smith believes there is no more important work than defending juveniles, but she mostly represents adult criminal defendants.^[47] Smith wrote "I Ain't Taking' No Plea": The Challenges in Counseling Young People Facing Serious Time. In that piece, she argues: where it is clear that a young client is going to serve much more time for no good reason—when refusing a favorable plea offer is ill-considered and irrational—Smith believes that lawyers should do almost anything to change that young client’s mind.^[48] In Defending and Despairing: The Agony of Juvenile Defense, Smith tells of representing a fifteen-year-old young man from Washington D.C. who was accused of committing two rapes.^[47] She writes about the personal struggle of counseling this client to take a plea offer, which he ultimately refuses to do.^[47] His case is ultimately transferred to adult criminal court, and his life seems over for both Smith and the client.^[47]

Books

• How Can You Represent Those People? (Abbe Smith & Monroe Freedman eds., New York: Palgrave Macmillan 2013).^[49][50]
• Abbe Smith & Monroe Freedman, Understanding Lawyers' Ethics (New Providence, N.J.: LexisNexis 4th ed. 2010).
• Case of a Lifetime: A Criminal Defense Lawyer's Story (New York: Palgrave MacMillan 2008).^[51][52]

Contributions to law reviews and scholarly journals

• A Call to Abolish Peremptory Challenges by Prosecutors, 27 Geo. J. Legal Ethics 1163 (2014).^[53]
• Gideon Was a Prisoner: On Criminal Defense in a Time of Mass Incarceration, 70 Wash. & Lee L. Rev. 1363-1391 (2013).^[54]
• Are Prosecutors Born or Made?, 25 Geo. J. Legal Ethics 943-960 (2012).^[43]
• Defending Those People, 10 Ohio St. J. Crim. L. 277-301 (2012).^[55]
• "No Older 'n Seventeen": Defending in Dylan Country, 38 Fordham Urb. L.J. 1471-1493 (2011).^[56]
• Misunderstanding Lawyers' Ethics, 108 Mich. L. Rev. 925-938 (2010) (reviewing Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (2008)).
• "In Praise of the Guilty Project: A Criminal Defense Lawyer's Growing Anxiety About Innocence Projects." U. Pa. JL & Soc. Change 13 (2009)^[42]
• "I Ain't Taking' No Plea": The Challenges in Counseling Young People Facing Serious Time, 60 Rutgers L. Rev. 11-31 (2007).^[48]
• The Lawyer's "Conscience" and the Limits of Persuasion, 36 Hofstra L. Rev. 479-496 (2007).^[30]
• Defending and Despairing: The Agony of Juvenile Defense, 6 Nev. L.J. 1127-1136 (2006).^[47]
• Defending the Unpopular Down-Under, 30 Melb. U. L. Rev. 495-553 (2006).^[4]
• Telling Stories and Keeping Secrets, 8 UDC/DCSL L. Rev. 255-268 (2005).^[57]
• The "Monster" in All of Us: When Victims Become Perpetrators, 38 Suffolk U. L. Rev. 367-394 (2005).^[58]
• The Dignity and Humanity of Bruce Springsteen's Criminals, 14 Widener L.J. 787-835 (2005).^[59]
• The Burdens of Representing the Accused in an Age of Harsh Punishment, 18 Notre Dame J.L. Ethics & Pol'y 451-463 (2004).^[32]
• Defense-Oriented Judges, 32 Hofstra L. Rev. 1483-1505 (2004).^[34]
• Too Much Heart and Not Enough Heat: The Short Life and Fractured Ego of the Empathic, Heroic Public Defender, 37 U.C. Davis L. Rev. 1203-1265 (2004).^[31]
• The Bounds of Zeal in Criminal Defense: Some Thoughts on Lynne Stewart, 44 S. Tex. L. Rev. 31-52 (2002).^[35]
• The Difference in Criminal Defense and the Difference It Makes, 11 Wash. U. J.L. & Pol'y 83-140 (2003).^[60]
• The Complex Uses of Sexual Orientation in Criminal Court, 11 Am. U.J. Gender Soc. Pol'y & L. 101-115 (2002).^[7]
• The Innocent and Not So Innocent Alike, Hum. Rts., SPRING 2002, at 14.^[61]
• Can You Be a Good Person and a Good Prosecutor?, 14 Geo. J. Legal Ethics 355-400 (2001).^[62]
• Lawyers for the Abused and Lawyers for the Accused: An Interfaith Marriage, 47 Loy. L. Rev. 415-455 (2001).^[63]
• Defending Defending: The Case for Unmitigated Zeal on Behalf of People Who Do Terrible Things, 28 Hofstra L. Rev. 925-961 (2000).^[33]
• Defending the Innocent, 32 Conn. L. Rev. 485-522 (2000).^[21]
• Burdening the Least of Us: "Race-Conscious" Ethics in Criminal Defense, 77 Tex. L. Rev. 1585 (1999).
• "Nice Work If You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523 (1998).^[64]
• For Tom Joad and Tom Robinson: The Moral Obligation to Defend the Poor, 1997 Ann. Surv. Am. L. 869, 869 (1997).
• They Dream of Growing Older: On Kids and Crime, 36 B.C. L. Rev. 953, 953 (1995).^[65]
• Carrying on in Criminal Court: When Criminal Defense Is Not So Sexy and Other Grievances, 1 Clinical L. Rev. 723 (1995).
• Criminal Responsibility, Social Responsibility, and Angry Young Men: Reflections of A Feminist Criminal Defense Lawyer, 21 N.Y.U. Rev. L. & Soc. Change 433 (1995).
• Rosie O'neill Goes to Law School: The Clinical Education of the Sensitive New Age Public Defender, 28 Harv. C.R.-C.L. L. Rev. 1 (1993)

Further reading

• Smith, Abbe (July 25, 2013) What motivates a lawyer to defend a Tsarnaev, a Castro or a Zimmerman?
• Smith, Abbe (March 29, 2013) Undue Process: ‘Kids for Cash’ and ‘The Injustice System’ for the New York Times' Sunday Book Review
• Smith, Abbe (June 26, 2006) Lawyers Have an Obligation to Those who Need Them Most
• Reviewed by Abbe Smith, Prosecuting Sex Crimes in the 90's: A Defense Perspective, 17 Harv. Women's L.J. 227 (1994)
• Reviewed by Abbe Smith, The Public Defender: The Practice of Law in the Shadows of Repute. by Lisa J. Macintyre. Chicago, Illinois: University of Chicago Press, 1987. 199 Pages., 62 Temp. L. Rev. 651 (1989).

References

External links

• Appearances on C-SPAN
• 'How To Get Away With Murder,' meet law Students for the Defense
• Abbe Smith on Amazon
• Interview of Abbe Smith for Frontline's The Plea
• A distinguished panel of criminal defense lawyers, including Smith, discuss: How Can You Represent Those People?
• Smith discussing her article for a symposium on Gideon v. Wainwright