Case of a Lifetime

I contacted a high-ranking lawyer in the criminal division of the New York State Attorney General's Office, the wife of a college classmate. I felt a little uneasy exploiting that connection, but my friend was now a law professor whose scholarship focused on social justice. How could I not?

The prosecutor listened to what I had to say and agreed to look over the case file. When she called me back, she said her office had no doubt about Kelly's guilt.

No doubt? It must be nice to have no doubt, none whatsoever. Meanwhile, I'm in doubt reading a menu. I'm drenched in doubt buying a pair of shoes. But this prosecutor had no doubt about a one-witness identification case.

It is hard to say exactly what Kelly was feeling during those years. She seemed the same: alternately hopeful and discouraged. Every once in a while, she would throw up her hands and say it wasn't worth it. I ignored her and carried on.

I had my own struggles. Trial work suits me: A case usually goes to trial within a year of the arrest; it's over before you know it. Whatever the result, you move on. Kelly's case threatened to go on forever. I began to think of myself as the most devoted but least adept lawyer on Earth. If there was a category in the Guinness Book of World Records for "ineffectual lawyering," I could be a contender.

Kelly sent a card on every Jewish New Year, birthday, Thanksgiving, Hanukkah, Valentine's Day, Passover and Mother's Day. She sent away for those harder-to-find Jewish holiday cards. She signed them "Shalom." How could I not continue to fight for her? Who else did she have?

Over the years, I contacted countless writers, hoping to get a good newspaper or magazine article. I contacted public relations firms. I wrote about Kelly in law journals. Then, in the spring of 2003, documentarian Ofra Bikel, who was working on a film about guilty pleas for the PBS television show "Frontline," heard about Kelly's case. We talked about including Kelly in the film. I kept calling until Ofra said yes.

Around the same time, people suggested I get in touch with Sara Bennett, then head of the New York Legal Aid Society's fledgling Wrongful Convictions Unit. I called her that summer; she immediately signed on. We both knew that Christmas, only five months away, was clemency time.

With the help of a Legal Aid board member, we were granted a meeting with the governor's counsel. It went well, and we were elated to learn that Kelly would go before the clemency board in November. This was big. Kelly and I had never gotten this far.

Lawyers aren't allowed at clemency hearings, so Kelly would have to speak for herself. Sara and I went into high gear, preparing her in person and by telephone. We conducted practice sessions where we shot hard questions as if we were hostile board members. Kelly had a particularly good answer to the question about where she would live and work if released: at the Mount St. Francis convent in Peekskill, N.Y., where Sister Antonia lived; she would work in the convent infirmary. What could be better for a parole board -- a prisoner who wants to live in a convent!

Kelly later told me she wept through much of the clemency hearing. She said that the board members seemed kind and friendly. A couple had wiped away a few tears themselves, she told me. But on Christmas Eve 2003, we learned that her petition had been denied. It turned out that Gov. Pataki extended executive clemency in only two cases that year -- one of them to an unwitting drug mule who had served 11 years, and the other to Lenny Bruce, who had died in 1966. It felt like a cruel joke.

Under New York state law, parole was now all Kelly had left. But good things had started to happen. Ofra's film, "The Plea," aired in June 2004, and suddenly Kelly had supporters all over the world. Pataki must have gotten mail, too. Soon after, Kelly was told that she was approved for the Honors Floor. She was overjoyed.

In 2005, Sara called me to talk about the parole effort. She wanted to be clear: She would take this on only if she was lead counsel. I was taken aback; Kelly had been my client for years. I had to remind myself that this wasn't about me. Sara was based in New York and knew the institutional players. I needed to step back.

On a Thursday night that April, while I was at my son's baseball practice, I got a call. Kelly's parole petition had been granted. She'd be getting out in June. I was relieved, but not as happy as I thought I'd be. Kelly had served her full minimum sentence: 28 years and 6 months. She was among the longest-serving women in the New York prison system.

After that, the weeks passed quickly. I confess that I struggled with a feeling of anticlimax and envy. It felt like I'd been trying to open a stuck jar for years, using every ounce of determination and strength, and then someone else got it off in a single twist -- as if nothing had preceded her effort. I understood that most people convicted of violent crimes are not released at their first eligibility. But I was tormented by the idea that Kelly might have been paroled even if I had done nothing, if I had never come back into her life.

When I shared my distress with my friend Ilene, saying I wish I could let go of these feelings, she said: "You? You can't even let go of a bad sandwich." She pointed out that Kelly had been my life's work. The end was bound to be difficult.

Kelly has been free for more than three years. Upon her release, she moved into a one-bedroom apartment on the grounds of the Mount St. Francis convent. She works two jobs: caring for sick and elderly nuns in the infirmary and providing in-home nursing care around Peekskill. She has a bank account, credit card, car and cellphone. She volunteers one morning a week at a homeless shelter.

I am so proud of everything Kelly has accomplished. But I hate that she is under the supervision of the parole system. I also hate that she is too frightened to meet people. Her choice of a friend cost her 28 years, and she says she won't make that mistake again. She stays close to the convent.

Since Kelly's release, I've become increasingly aware of our differences. When I saw the film "Brokeback Mountain," a story of forbidden gay love in rural America, I urged her to see it. I thought it might resonate. Kelly saw it with a church friend; her response was tepid.

"Didn't you like it?" I asked.

"Well, it was awfully explicit, and my friend wondered if I was trying to convert her or something," she said.

"Didn't you feel for the two men who weren't allowed to love each other openly?" I asked.

"Well," she said. "I think if you're gay you should just be gay and not get married and cheat on someone."

In more than 25 years of law practice, I have represented a handful of other clients I believed to be innocent and many more who, guilty or not, did not deserve to be so harshly punished. Since Kelly's, I've not had a case like this. I am glad of that. I don't think I could bear another.

Abbe Smith is professor of law and co-director of the Criminal Justice Clinic at Georgetown Law School. She can be reached at smithal@law.georgetown.edu. This essay is adapted from her book Case of a Lifetime, scheduled to be released next month. Copyright 2008 by the author and reprinted by permission of Palgrave Macmillan.