Case of a Lifetime

The process of writing and filing the petition was painstaking and slow. It wasn't finished when I graduated from law school and joined the public defender's office in Philadelphia. I became engrossed in my new life and career. I kept in touch with Kelly, but our contact was sporadic.

To get into federal court, you need plain legal error. Mistaken identification cases are always about factual, not legal, errors. Once convicted, their victims are all but doomed. Claudia used the only argument she had: that the trial judge erred in allowing unreliable identification testimony.

I had been a defender for three years when Claudia called to say Kelly's habeas petition had been granted, overturning her conviction. This was an amazing, against-the-odds victory. Kelly had served 10 years; I couldn't believe that she had prevailed after all this time.

Claudia was pleased but worried about the future. The state will appeal, she said. And the federal appeals court was known to be a much tougher forum. Claudia was right. The state appealed. But before the case was heard, the state made an offer: If Kelly pleaded guilty, she would receive a sentence of time served. This meant that she would be released from prison and could go home.

The question of how hard a lawyer should lean on a client to take a plea is a difficult one. Sometimes effective counseling -- getting through to a client about the reality of his or her situation -- means leaning very, very hard.

Kelly's time behind bars had not been easy. Early on, horrified at the prospect of spending her life incarcerated, she escaped, walking out of a low-security prison. Apprehended, she was transferred to Bedford Hills, where she was not allowed to go anywhere without being searched, often a full-body strip search. Certain jobs were off-limits to her, as was the possibility of living on the Honors Floor, the destination of most well-behaved long-term prisoners. Now, Kelly was doing the hardest kind of time.

Claudia advised Kelly to take the plea, told her that she was lucky to win in the district court, warned her that she would likely lose in the appeals court. She said that if she were in Kelly's shoes, she would take the plea. But, to this day, Claudia blames herself for not exerting enough pressure.

Kelly refused. She was innocent; she wanted vindication. Six months later, the court of appeals reversed and reinstated her conviction. She was now serving a life sentence with no legal remedy.

As the years passed, I went from being a public defender to a law teacher to a combination: a clinical law teacher running a criminal defense clinic at Harvard Law School. I thought of Kelly from time to time, but it was painful to do so. Then, in 1993, I helped organize a conference about women in prison. The keynote speaker was Jean Harris, the former headmistress of McLean's exclusive Madeira School. She had recently been released from Bedford Hills after serving 12 years for the murder of her lover, Herman Tarnower, the author of The Complete Scarsdale Medical Diet. I told her I'd seen her at the prison while visiting Kelly.

"Oh, Kelly," she said immediately. "Everyone knows she's innocent."

At Harris's urging, I contacted Kelly. I apologized for being out of touch, told her what I'd been doing since we had last corresponded, asked about her health and her case. She wrote back saying that a friend -- a former prisoner who wasn't a lawyer but believed in her innocence -- was helping put together a clemency petition.

There was something about Kelly that threatened my usual equilibrium. I knew that if I took up her case again, her innocence would be on my shoulders. I resisted, then caved. Recruiting a couple of law students, I set out to do what I could. There was a strange symmetry to this. I was poring through Kelly's papers again, years later, only this time as the clinical professor, supervising my own students.