Conservative Group Targets Judge Jane Kelly In Attack Ad For Serving As Criminal Defense Counsel In Notorious Case

As discussed earlier in my Washington Post column, various names have been floating around town of possible nominees to replace the late Associate Justice Antonin Scalia. One of those names is Jane Kelly, a judge on the United States Court of Appeals for the Eighth Circuit. The conservative Judicial Crisis Network has not waited for the nomination and is already running an attack ad targeting Kelly. The ad is deeply troubling because it seeks to bar Kelly’s nomination because she zealously defended a child molester, Casey Frederiksen. The ad seeks to punish an attorney for performing her duty as a criminal defense counsel — suggesting that no attorney should defend those accused of such heinous crimes. While we celebrate the courage of presidents like John Adams (who represented the British soldiers involved in the Boston Massacre), there is a rising tide of intolerance for those who step forward to fulfill the guarantees of due process and the right to counsel under our Constitution. The attack ad is the judicial version of Willie Horton ad used against Michael Dukakis by President George H. W. Bush.

The ad campaign proclaims:

“This is Jane Kelly. President Obama may appoint her to the Supreme Court. As a lawyer she argued that her client, an admitted child molester, wasn’t a threat to society. That client was found with more than 1,000 files of child pornography and later convicted for murdering and molesting a 5-year-old girl from Iowa. Not a threat to society? Tell your senator, Jane Kelly doesn’t belong on the Supreme Court.”

It is an appalling attack in my view that ignores the right to counsel for all accused persons. There are innocent people who are accused of crimes and everyone deserves the right to argue their innocence with the representation of counsel. One of the obvious components in any defense to a case of this kind is that the accused is not a danger to society. Indeed, the argument of innocence for a defendant naturally involves an argument of no danger to society. That argument is obviously made by counsel but it is the jury and the court that decide the issue after listing to both the prosecutors and the defense counsel.

Jane Kelly was a law school classmate of President Obama who received her B.A. summa cum laude from Duke and then graduated from Harvard in 1991. She also studied pediatrics for one year in New Zealand under a Fulbright Scholarship. She clerked for Donald J. Porter, chief judge of the United States District Court for the District of South Dakota in Sioux Falls, South Dakota and then clerked for David R. Hansen, a judge of the United States Court of Appeals for the Eighth Circuit. She then served as an assistant federal public defender in the Northern District of Iowa, in 1994 and served as the supervising attorney in the Cedar Rapids, Iowa office, from 1999 to 2013. She was put on the 8th Circuit in 2013 with a confirmation vote of 96-0.

Kelly’s opinions do not shed a great deal on her jurisprudential depth or vision. However, she obviously has a stellar background and would bring long needed litigation experience to the Court. Indeed, her work as a criminal defense lawyer would make her fairly unique among nominees and would add a valuable perspective on the Court. What is so troubling is the impact of campaigns like this one on young lawyers. Many become prosecutors because they feel that people will blame them for their clients. The federal bench is full for former prosecutors and the defense counsel often privately complain of a bias against criminal defendants.

50657e1b51a61.preview-699Frederiksen was living with five-year-old Evelyn Miller and her mother when he abuse the child and then stabbed her to death in July 2005. When he was convicted, he was serving a 14-year sentence in federal prison for receiving and possessing child pornography.

It is impossible to believe in the rule of law without accepting core principles of the right to counsel and due process. This ad campaign seeks to demonize lawyers for simply defending accused persons. Even in this poisonous election cycle, such an attack is disgraceful and should be denounced by liberals and conservatives alike. There are certainly arguments that have been raised against consideration of any nominee and there are no doubt grounds to question particular nominees, including Kelly. However, performing her sworn duty to zealously defend a client is not one of those good-faith grounds. Ironically, Kelly would have been the first to step forward to represent any of the people behind this attack campaign at Judicial Crisis Network if they were accused of wrongdoing. It is incredibly sad that network cannot distinguish between a lawyer fulfilling her vital function in the criminal justice system and the criminal himself.

48 thoughts on “Conservative Group Targets Judge Jane Kelly In Attack Ad For Serving As Criminal Defense Counsel In Notorious Case”

  1. Metzger has written hundreds of comments about the Seraw trial on the internet. Also there is the excellent book by Elinor Langer “A Hundred Little Hitlers” which is commendable and easy reading. She is a Jewish liberal but Metzger has credited her with a fair retelling., Metzger has also said somewhere in his voluminous comments that he could not afford a lawyer– just as you said — because he could not afford the Fifty Thousand dollar retainer that was quoted to him. I do believe that would be a fair price for a wrongful death trial defense of him at that time, so I don’t fault the lawyers, but I do fault the SPLC for pretending that they had such a fine and laudable case against him and his son, when in fact he was not represented by counsel and they accordingly had a slam dunk of a case even though, as Langer shows in her book, the evidence of liability against them was lacking. Please note that that neither he nor his son were ever charged with any accomplice liability, and the witnesses against him were working under plea deals and so their entire testimony was self serving.

    The bottom line as it relates to this story, is that slandering lawyers who do their duty, by imputing their clients’ alleged wrongs and faults to them, is hurtful to our system of justice. Neither the Republicans nor the overly endowed and self promoting muckrakers the SPLC should be doing it.

    Applause to all lawyers who take a difficult case right on down to defending the most loathsome persons. If anyone can be denied a fair trial than any of us can be as well.

  2. A well known Texas attorney who usually won his cases was asked why his fees were so huge. Forman’s response was that SOMEBODY had to punish the crooks. That is part of the adversary system folks. Just ask Racehorse Haynes who got T Cullen Davis off an attempted murder charge even though the crime was on TAPE. He had Davis join the biggest Baptist Church in Amarillo, and give lots of money and become a born again Christian. The jurors could not believe that a good “Christian” like him could be guilty of anything. THAT was FAR worse than the OJ Simpson case. At least OJ did not have a tape recorded piece of evidence to be used against him.

    As far as the worthiness of of Kelly for the SCOTUS, since I am not a lawyer or even well versed in the law, Prof Turley is the expert in this field. So while I disagree with him on some issues since he takes an extreme position on the libertarian side, I have to say that if Turley thinks she is an excellent choice, I will have to agree with him since his judgment on these matters if FAR superior to mine.

  3. Darrel C., If you were Thomas Kennedy, Darryl Hunt, or Dewey Bozella you might have a different view.

  4. Criminal Lawyers, like Mafia Hit-Men have chosen their careers.
    Hit-Men eliminate wasteful Lawyering and Bad Guys.
    Criminal Lawyers dishonestly re-cycle them to do more mayhem with blatant lying to juries, intentionally thwarting justice.

  5. Karen, I meant to respond to your comment regarding civil proceedings. There is an ongoing controversy as to whether we should follow the example in some other countries which routinely have the loser pay the winner’s fees. We already permit the prevailing party to recover fees and costs in some kinds of litigation. Unfortunately, that doesn’t really solve the problem in that the availability of funds for the fight can determine who ultimately wins. There are many organizations and individual attorneys who provide pro bono or lower cost services in civil matters, but whether a particular party will be lucky enough to get such representation is a lottery–the odds are not in one’s favor. It is a problem with our system, which relies on civil litigation to resolve such a wide range of disputes and to penalize misconduct. The outcome of litigation can be affected by financial disparities between the parties even when it involves a legitimate dispute and parties acting in good faith. Someone willing to abuse it can do untold damage to those who are targeted. That’s part of why I find the statement by a presidential candidate that he filed a legal action knowing it lacked merit, but also knowing that he could make the defendant’s life miserable by pursuing the litigation, so repulsive.

  6. Karen; To a certain extent, the world of legal proceedings is an artificial construct. We have determined as a society that the best way of reaching the best result in the most cases is through adversary proceedings taking place according to certain rules. The idea is that the prosecution presents its best arguments and evidence and the defense does the same–all within the rules of what is permitted. Then the judge or other factfinder is responsible for making the determination as to legal guilt or responsibility. If an attorney stops representing the client’s interests zealously, and instead takes on the role of fact-finder, the defendant no longer has someone presenting his side in that adversary proceeding. Either we believe in the adversary system, and take on the responsibility for making it work, or we need to find another way of conducting legal proceedings. That is why I say that guilt or innocence really doesn’t come into it as far as the attorney’s duty to the client. That doesn’t mean that duty never conflicts with human feeling, and the hypothetical you suggest would be hard to live with for most people. On the other hand, defending someone you believe is innocent only to see his life utterly destroyed by a contrary finding by the court would be equally hard to live with. Many attorneys are being faced with that issue as DNA testing has utterly exonerated people who served decades in prison for horrendous crimes they did not commit.

    One thing to keep in mind, is that most prosecutors do not determine the viability of charges based on whether or not they believe a particular defendant is guilty of a particular criminal act, though they do have ethical duties in that regard Rather, the charges (and the prosecutor’s willing to plea bargain) is dependent on what the prosecutor believes he can get a conviction on or the extent he can leverage the fear of conviction into a plea bargain. We also know of many case where the prosecutor has been complicit in the manufacture of evidence, or failure to disclose exculpatory evidence. Defense attorneys have no special ability to see into the hearts and minds of defendants, and can as easily develop a false belief that a client is guilty as he can develop a false belief that a client is innocent.

  7. I think any nominee should be a felon and ineligible thereby to own or posess a firearm. Afterall the avearge american committs three felonies per day. Therefore if a nominee has a squeaky clean record…..its because of prosecutorial and police discretion….only if a “felon” as nominee or appointed will the fundamental right of voting or self defense be restored….never mind check the box initiatives. Thomas spoke cuz it matters. It matters half the kids raised in america have a parent with a criminal record. It matters half the crap wasn’t a crime….when the law barring gun posession was passed. To bar all felons….then without constitutional convention on the second…..we just make every other person a “felon”. Instead. Later. After the fact. Two million kids a year a born in america. One million fresh felons a year are born in america. Just a couple decades before half america cant own guns….then again they cant vote either. Then again too easy to disarm the remaining. Any stats class will show how the second amend is dead. In the future. This criminal might have used force. 97 percent of “felons” havent. And don’t scare me personally. Sure they got to do their time. Then what….their time is never over….that’s cruel and modernly since brady unusual.

  8. Richard:

    Thank you for your reply. I appreciate your insight. Surgeons are generally known to have terrible bedside manner, calloused, and regard their patients in the best light when they are unconscious. Many have to get this tough coating as a defense mechanism, and I imagine defense law is the same.

    I agree with you that a vigorous defense is necessary to the justice system. It troubles me, however, that a client’s guilt or innocence plays no part for the attorney, because that does not seem just to me, a lay person on the outside. Can you imagine this hypothetical situation: right after a lawyer celebrates on getting his client off, whom he knows was guilty of raping a child, he reads in the paper that his best friend’s child was raped and murdered by his client. His client was offered a plea deal, which was just and fair and would have kept him off the street, but the lawyer advised him against it and was able to sow enough doubt with the jury as to get him off. This seems neither ethical nor just to me. I greatly respect defense attorneys who defend clients whom they believe to be innocent with everything they’ve got. But I think there are a lot of people like me who find it unethical for an attorney to work to free a guilty man who is a danger to society, especially to children. It seems more like a game than than the justice system. Perhaps my perspective on justice is naive.

    Speaking of the law, there is another aspect of the law which troubles me. Although criminal defendants are means tested for a public defender, civil cases do not seem to afford that option. A lawsuit is so expensive, even without a trial, that it appears that civil justice is reserved for those of means. If you’re poor, you can be taken advantage of and have no recourse beyond small claims.

  9. Of course, we both meant, Kindergarden of Eden, not Evil. Although I think Kindergarten of Evil would make for a great horror movie title.

  10. @RalphAdamo

    It is a short book, but the guy nails the liberal mindset dead on in non-esoteric language. The I’m A Victim chapter explains the process behind the identity politics meme. “it can’t be my choices, because there are no good or bad choices, sooo if I am having problems, it must be because of discrimination against me i.e. racism, sexism, etc.”

    Here is a good review:

    Squeeky Fromm
    Girl Reporter

  11. Squeeky, I haven’t read Kindergarden of Evil by Evan Sayet yet. But I will. Thanks for the tip!

  12. John Smith: Metzger didn’t have an attorney because he asserted he couldn’t pay one. Defendants often go unrepresented in civil actions because of a lack of funds unless there is insurance coverage at play.

  13. Karen S, I would like to respond to some of your comments from the view of an attorney. First, the role of private criminal defense counsel is absolutely essential to maintaining the right to a fair trial. An individual who can pay for an attorney is not entitled to appointed counsel, and so in some regions would not have legal representation if private attorneys failed to step forward to provide it. Second, an attorney’s duty to his client is to represent that client’s interests in the legal proceeding. The client’s guilt or innocence doesn’t come into it. It would be utterly unethical for an attorney to recommend a plea agreement to a client because the attorney believes in the guilt of the client. It is also unethical to use the power of the attorney/client relationship to coerce a client into taking a particular action. Abandoning a client because he won’t take a particular action is generally condemned. Certainly there are times when the attorney/client relationship breaks down to such an extent that the attorney is no longer able to provide representation, but you can mostly avoid that situation by vetting the cases you take. An attorney who is unable to provide such representation to a person he comes to see as guilty of a crime should generally avoid criminal defense work. One final comment is that every profession has its “shop talk” and gallows humor. Such things inevitably include discussions of professional activities in a way detached from the real life implications for the individuals personally involved in the situation. Obviously, someone who has any tact or professionalism limits where such talk takes place. Just as medical professionals may discuss a medical problem or procedure in a way which appears to utterly disregard the real effects or risks of that medical problem or procedure to the patient and his family, attorneys discuss strategy and trials in the same way.

  14. Republicans should not smear lawyers for doing their jobs I agree.

    Democrats do this all the time.

    IN particular: SPLC/ Morris Dees.

    The leftist SPLC (misnamed, “southern poversty law center”) which is supposedly a public interest law firm, and yet only works a handful of cases a year– amazing for a “nonprofit” known to have a $350 MILLION dollar endowment…………. anyways, SPLC smears lawyers who provide representation to socalled white nationalists, nativists, kluckers etc. on a regular basis. Just as they seek to smear flag wavers, republicans, heterosexuals, catholics, black muslims, etc. They make lawyers who represent these “undesirables” into bad guys in a way that is very much McCarthyite.

    The purpose however is probably not to smear the lawyers, just scare their donors into coughing up more millions! .

    Anybody who wants to read up a liberal viewpoint on what a charlatan Morris Dees is google Ken Silverstein, Harper’s Magazine, “Church of Morris Dees” November 2000.

    Or if you are really into what a fraud SPLC is you can read “A Hundred Little HItlers” about the Portland Skinhead wrongful death case where they represented family of a Somali beaten to death against a TV repairman who could not get a lawyer because they were all afraid of Dees. Dees got a multimillion dollar verdict against the TV repairman and has been using it ever since. I wonder if the victim’s family ever saw much at all?

  15. Judge Kelly would be a good nominee to embarrass the RepubliCons who want to put a nomination in the freezer. Chuck Grassley will be hard pressed to explain denying her a hearing. So will every Senator who voted for her before. But I think Obama has narrowed the field to three others. Time will tell. It is time for him to name the nominee. And when the lame duck Senate goes on vacation for weeks at a time Obama should name the nominee as a recess appointee.

  16. I am not an attorney, so perhaps my view is more reflective of the general public.

    I view a public defender, who gives everyone their Constitutional right to a fair trail, negotiating for them the best plea where appropriate, quite differently than I do the cliched sleazy private criminal defense lawyer, bragging about how she got off a pedophile whom she knew was guilty as heck. Even if the evidence was insufficient to convict, I would have a problem with her ethics and character if she was gleeful about getting a child rapist off.

    Now, I have no idea which category Ms Kelly fits in to, and that matters to me. I especially want to know if the evidence in her hand did not support an opinion of his being a threat to the public, or if she negligently ignored red flags. What comes to mind, actually, was the audio of a young Hillary Clinton laughing about how she got a child rapist off whom she knew was guilty. In fact, she says, laughing, that she never trusted a polygraph again because he passed it. She volunteered to take his case, so it was not her job to do so. Now, on the one hand, the evidence may very well have been insufficient to convict him. On the other, it speaks to someone’s character if they remain on a defense case once they know their defendant is guilty, but most tellingly, if they are gleeful, smug, and celebratory if they keep said rapist out of prison.

    Since I am not a lawyer, I do not know what the law requires if a defense lawyer becomes convinced his client is guilty, but wants to plead not guilty. From my safe vantage point of a non lawyer, I would hope I would drop the case like a hot potato, for ethical reasons, if he would not allow me to strike a plea bargain. And I would definitely hope I wouldn’t be gleeful if I got him off completely, if I knew he was guilty of raping a child.

    The general public, myself included, have this prejudice against defense lawyers as being immoral, and enabling the guilty to go free. We do not typically assume they are justice warriors defending the innocent from wrongful accusations. Perhaps that’s why people get into criminal law, and then they become jaded. Who knows? I acknowledge that this is a bias, and that it is unfair to those lawyers who are defending clients they firmly believe are innocent, or defending the Constitutional right to a fair trail, both of which are a great service to society. That said, I greatly enjoy hearing former defense attorney Arthur Aidala’s opinions, which has made me a bit more charitable and open minded towards his breed of law.

    So, perhaps what would be helpful in getting criminal defense lawyers on the bench in greater numbers, is differentiating which camp they belong to.

  17. In my opinion, this is a prosecutors problem. If the prosecutor cannot produce genuine evidence of guilt, then the defense attorney has done their job of protecting the people. Let me add that if there was not enough evidence, the Grand Jury should not have indicted in the case. There are too many innocent people in jails & prisons.

  18. @PaulCS

    And you know, after thinking about this article some, my opinion is now—to hell with fairness! Conservatives have been putting up with this stupid demonization crap for decades. Maybe some turnabout is fair play. It is not “right or logical” play, but maybe it’s “fair’ play. What was that St. Ted Kennedy said about Bork, that he was a Nazi??? And all the bullsh!t demonzation of Trump and hiis supporters???

    Well that is the same thing as the treatment Kelly is getting. So maybe what conservatives are doing to Kelly is wrong, but so friggin’ what! You push people enough, they start to push back. You just get tired of the crap always seeming to run in just one direction, so Liberal America, you started this crap, now STFU! I don’t wanna hear your whining!

    Squeeky Fromm
    Girl Reporter

  19. Yes, Her CV is just like her buddy Obama. I’m not spending any time on this. She has as much a chance of confirmation as I do and this ad is not the reason why.

    1. Nick, spend a little time. Although they both have similar academic backgrounds, her CV is as a litigator, otherwise. Obama was not a litigator. Did he ever set foot in a courtroom? (Maybe he needs her on the Court for his or Hillary’s upcoming defense?)

  20. It’s the end of the slippery slope. Well, one end, anyway. And the profession doesn’t do enough to counter the trend. Or maybe much of anything, though I certainly appreciate the blog post here.

    The temptation to disparage defense lawyers for doing their job has always been there but as a society we didn’t give in to it. People felt it emotionally but were too embarrassed to argue the position because it was so intellectually repugnant.

    Now, with the rampant Kardashianization of culture people are proud of taking the position.


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