Washington Free Beacon Smears Potential SCOTUS Nominee For Fulfilling Constitutional Duty As Public Defender

The Washington Free Beacon smeared potential Supreme Court nominee Jane Kelly for previously representing criminal defendants during her tenure as a public defender. The Beacon's implication that Kelly is guilty-by-representation leaves out crucial details about the cases, and as experts have pointed out, undermines the American system of justice and the constitutional right to legal counsel.

Jane Kelly, A Former Public Defender, Is Reportedly Being Considered For Supreme Court Nomination

President Obama Reportedly Considering Jane Kelly For Supreme Court. The New York Times reported on March 2 that “President Obama is vetting Jane L. Kelly, a federal appellate judge in Iowa, as a potential nominee for the Supreme Court”:

President Obama is vetting Jane L. Kelly, a federal appellate judge in Iowa, as a potential nominee for the Supreme Court, weighing a selection that could pose an awkward dilemma for her home-state senator Charles E. Grassley, who has pledged to block the president from filling the vacancy.The F.B.I. has been conducting background interviews on Judge Kelly, 51, according to a person with knowledge of the process. The person spoke on the condition of anonymity because the White House is closely guarding details about Mr. Obama's search to fill the opening created by the death of Justice Antonin Scalia. [The New York Times3/2/16]

Kelly Was Previously A Public Defender In Iowa. Before becoming a federal judge, Kelly was an assistant federal public defender in Cedar Rapids, Iowa, helping clients who could not afford an attorney on their own. Federal public defenders are government officials appointed by courts to enforce the Sixth Amendment right to counsel. [SCOTUSBlog, 3/7/16, UScourts.gov, accessed 3/14/16]

Washington Free Beacon Seizes On Kelly's Career As A Public Defender To Smear Her For Defending Clients In Court

The Beacon Misrepresented Kelly's 2005 Defense Of A Client To Claim She Argued Her Client Was “Not A Danger To Others”

Beacon: Kelly Defended A Man Charged With Possession Of Child Pornography And Argued He Was Not A Danger To Others. The Washington Free Beacon wrote March 14 that Kelly “has a history of defending some of Iowa's most infamous criminals, including” Casey Frederiksen, who was charged with possession of child pornography. The Beacon emphasized that Kelly argued Frederiksen “was not a danger to others and should be released and allowed to live with his father,” and noted he was later “convicted of murder and sexual assault” in a separate case:

In 2005, Kelly was the appointed attorney for a 26-year-old man named Casey Frederiksen, who was charged with possession of child pornography.Although Frederiksen had previously been convicted of sexual assault involving a minor, Kelly urged the judge to grant him leniency, arguing that he was not a danger to others and should be released and allowed to live with his father. Frederiksen was sentenced to 14 years in prison in the case.A decade later, Frederiksen was convicted of murder and sexual assault in the 2005 cold case killing of 5-year-old Evelyn Celeste Miller. Evelyn, the daughter of Frederiksen's live-in girlfriend, was reported missing from her northern Iowa home on July 1, 2005. Over 1,500 people joined police to help search for the young girl. Her body was found with stab wounds on a nearby river bank two days later, and there was evidence she had been sexually assaulted.Frederiksen was long considered a suspect in the murder, but it took investigators years to build the case against him. In 2015, he was sentenced to two consecutive life terms. [Washington Free Beacon, 3/14/16]

In Fact, Kelly's Defense Cited Her Client's Psychologist Who Determined Her Client “Was Not A Danger To Others.”

Kelly Was Presenting The Opinion Of Her Client's Psychologist Who Said He “Was Not A Danger To Others.” As The Des Moines Register reported in 2005, Kelly was presenting the view of a psychologist who had been seeing her client, and that the psychologist “said that Frederiksen was not a danger to others”:

Frederiksen's attorney, Assistant Public Federal Defender Jane Kelly, argued her client was not a threat to society. She said Frederiksen had been seeing a psychologist, who said that Frederiksen was not a danger to others. [The Des Moines Register10/5/05]

The Beacon's Claim Originated With Discredited Group Judicial Crisis Network. The criticism of Kelly for her defense of Frederiksen originated with the discredited group Judicial Crisis Network and its policy director Carrie Severino, who made the misleading charge in National Review. The Judicial Crisis Network's past efforts at guilt-by-legal-representation have been widely condemned as “McCarthyist,” a “flagrant foul,” “cynical manipulation,” and “grotesquely distorting.” [Media Matters3/7/16]

The Beacon Misrepresented Kelly's Use Of An Insanity Defense For The “Midwest Pipe Bomber”

Beacon: Kelly Helped Accused Bomber Avoid Trial By Claiming Mental Incompetency. The Beacon also wrote that Kelly defended “Luke Helder, better known as the ”Midwest Pipe Bomber," who allegedly planted bombs in different states. The Beacon argued that Kelly helped him avoid trial by “mak[ing] the case that Helder was not mentally competent to stand trial”:

Kelly also defended Luke Helder, better known as the “Midwest Pipe Bomber.” As a student at the University of Wisconsin, Helder planted bombs packed with nails in mailboxes in Iowa, Nebraska, Colorado, Texas, and Illinois. The devices injured six people, including an elderly couple in Iowa.Kelly helped make the case that Helder was not mentally competent to stand trial. A judge agreed in 2004, and since then Helder has been confined at a medical center in Minnesota. [Washington Free Beacon, 3/14/16

In Fact, The Judge Ruled Kelly's Client Not Mentally Fit For Trial Following Doctors' Diagnosis

The Judge “Found Helder Incompetent Based On Three Forensic Reports Prepared By Government Doctors. ”  The Associated Press reported in 2004 that that the judge's decision about Luke Helder's competency was based on the forensic conclusions of doctors, not those of Kelly:

After his arrest outside Reno, Nev., [Luke] Helder told authorities that by scattering the bombs across the country, he was trying to draw a “smiley face” on the map. [District Judge Mark] Bennett found Helder incompetent based on three forensic reports prepared by government doctors. The reports have been sealed by Bennett, who did not elaborate on Helder's diagnosis.


Helder, a former art student at the University of Wisconsin-Stout in Menominee, has pleaded not guilty to federal charges of using a pipe bomb in a crime of violence and destroying property used in interstate commerce -- mailboxes.

The charges carry a life sentence. In the months after Helder's arrest, his attorney, Jane Kelly, filed court papers declaring her intention to use an insanity defense.

If Helder is declared competent at some point, the federal charges remain and could be reinstated. [Associated Press, 4/1/04]

The Beacon Misrepresented Kelly's Representation Of A Client Who Plead Guilty To Stealing Millions From Clients

Beacon: Kelly Defended Man Who Stole Millions From Clients. The Beacon also wrote that Kelly defended “infamous” Russell Wasendorf, a corporate executive who plead guilty to “stealing over $100 million in customer funds”:

Another infamous Kelly client was Russell Wassendorf (sic), head of the Peregrine Financial Group, who in 2012 pleaded guilty to the largest financial fraud in Iowa history. Wassendorf admitted to stealing over $100 million in customer funds, and was sentenced to 50 years in prison in 2013. [Washington Free Beacon, 3/14/16]

Kelly Did Not Dispute The Facts Of The Case, But Argued For A Shorter Sentence Based On Her Client's Cooperation With Authorities

Kelly Did Not Dispute Facts Of The Case But Argued For Less Prison Time Based On Other Factors. After Wasendorf was sentenced to 50 years in prison in 2013 for fraud and embezzlement and ordered to pay over $200 million in restitution, following a guilty plea, Kelly said Wasendorf would not dispute the restitution but argued he should be given a lesser sentence due to his cooperation with authorities:

Jane Kelly, Wasendorf's attorney, said Wasendorf wasn't going to dispute the restitution amount. She did argue for less prison time based on his cooperation with the government, regulators and authorities during this investigation. Kelly said Wasendorf can't change what he did but asked to court to look at what he had done to help in this investigation. She said the scheme was “quite simple.” He took money from one account and used fake deposits to put money back in. He used a copier and a post office box to keep records from others. The repetitive conduct of his actions didn't equal complex and “sophisticated means” to commit the scheme, as the government claims to increase his prison time. Kelly said Wasendorf has done everything possible to cooperate to ensure creditors and customers get back what they are owed. He talked to agents from the moment he was conscious in the hospital after his suicide attempt. He also meet with them other times whenever they requested, which helped the case proceed and got information of the assets to the receiver. Wasendorf also answered questions from the Commodity Futures Trading Commission. “He didn't have to come forward,” Kelly said. “He didn't get a benefit but the parties benefited - FBI, CFT, the receiver and bankruptcy trustee.” [The Gazette1/31/13]

Numerous GOP Lawyers And The ABA Have Said Attacks On Lawyers For Defending The Accused Undermine The Justice System

Kenneth Starr, Top Bush Administration Lawyers Denounced “Shameful” Republican Attacks On Lawyers. In 2010, a conservative group run by Liz Cheney produced an ad that questioned the loyalties of Department of Justice attorneys appointed by President Obama who had previously represented detainees at Guantanamo Bay. Numerous conservative lawyers subsequently signed a letter stating that the attacks on the Justice Department lawyers were “shameful” and “undermine[d] the Justice system” by undermining the American tradition of providing “zealous representation of unpopular clients.” Politico reported that the signers included former independent counsel Kenneth Starr as well as:

[F]ormer Deputy Attorney General Larry Thompson, John Ashcroft's No. 2, and Peter Keisler, who served as acting attorney general during President Bush's second term. They also include several lawyers who dealt directly with detainee policy: Matthew Waxman and Charles “Cully” Stimson, who each served as deputy assistant secretary of defense for detainee affairs; Daniel Dell'Orto, who was acting general counsel for the Department of Defense; and Bradford Berenson, a prominent Washington lawyer who worked on the issues as an associate White House counsel during President Bush's first term. [Politico3/8/10]

Sen. Lindsey Graham: “This System Of Justice That We're So Proud Of In America Requires The Unpopular To Have An Advocate.” Sen. Lindsey Graham (R-SC), a former military lawyer, noted in 2010 that the “system of justice that we're so proud of in America requires the unpopular to have an advocate”:

I've been a military lawyer for almost 30 years, I represented people as a defense attorney in the military that were charged with some pretty horrific acts, and I gave them my all. This system of justice that we're so proud of in America requires the unpopular to have an advocate and every time a defense lawyer fights to make the government do their job, that defense lawyer has made us all safer. [Foreign Policy3/9/10]

Former Attorney General Michael Mukasey: “You Shouldn't Judge A Lawyer By His Clients.” Former Attorney General Michael Mukasey, in a Wall Street Journal op-ed headlined, “Why You Shouldn't Judge A Lawyer by His Clients,” wrote that it's “wrong to criticize attorneys who represent alleged terrorists” and noted that the D.C. bar's rules of conduct say representation of a client should “not be portrayed as endorsement of the client's views or behavior”:

It is plainly prudent for us to assure that no government lawyers are bringing to their public jobs any agenda driven by views other than those that would permit full-hearted enforcement of laws that fall within their responsibility-whether those laws involve prosecution of drug dealers, imposition of the death penalty, or detention of those who seek to wage holy war against the United States. It's also prudent that Congress exercise its long-established oversight responsibility to provide that assurance. But that prudence is not properly exercised by arguing that lawyers who defended drug cases, or worked on defense teams in death-penalty cases, or helped bring legal proceedings in behalf of those detained as terrorists, are automatically to be identified with their former clients and regarded as a fifth column within the Justice Department. The rules of conduct of the District of Columbia bar, for example, direct that representation of a client not be portrayed as endorsement of the client's views or behavior. If the Department of Justice comes to attract only lawyers who have spent their professional energy principally in avoiding matters of controversy, the quality of lawyers willing to serve at the department will decline, and the department will suffer, as will we all. [The Wall Street Journal3/10/10]

Former Bush Administration Official Peter D. Keisler: Acting Within “Honorable Tradition Of Lawyers Representing Controversial Clients” Does Not Make Someone “Unfit” For Service. The New York Times reported in 2010 that former Bush administration official Peter D. Keisler highlighted the “longstanding and very honorable tradition of lawyers representing unpopular or controversial clients” in response to attacks on Obama administration nominees:

Peter D. Keisler, who was assistant attorney general for the civil division in the Bush administration, said in an interview that it was “wrong” to attack lawyers who volunteered to help such lawsuits before joining the Justice Department.“There is a longstanding and very honorable tradition of lawyers representing unpopular or controversial clients,” Mr. Keisler said. “The fact that someone has acted within that tradition, as many lawyers, civilian and military, have done with respect to people who are accused of terrorism - that should never be a basis for suggesting that they are unfit in any way to serve in the Department of Justice.” [The New York Times3/4/10]

American Bar Association: “Fundamental Tenet” Of Justice System Is That Anyone Facing “Loss Of Liberty” Has The Right To Legal Counsel. The president of the American Bar Association (ABA), James R. Silkenat, in 2014 wrote a letter to the Democratic and Republican leaders of the Senate Judiciary Committee regarding attacks against Debo Adegbile, President Obama's nominee to head the Justice Department's Civil Rights Division, over his legal representation for Mumia Abu-Jamal, who had been sentenced to death for the murder of a police officer. Silkenat wrote that a “fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel,” and that attorneys “have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government - even to those accused or convicted of terrible crimes”: 

As the Senate Judiciary Committee prepares to deliberate over the nomination of Debo Adegbile to be Assistant Attorney General for the Civil Rights Division, I write to address the criticism this nominee has received regarding the legal representation he provided to a death-sentenced prisoner. A fundamental tenet of our justice system and our Constitution is that anyone who faces loss of liberty has a right to legal counsel. Lawyers have an ethical obligation to uphold that principle and provide zealous representation to people who otherwise would stand alone against the power and resources of the government - even to those accused or convicted of terrible crimes. The American people understand this obligation, and the corollary principle stated in rule 1.2(b) of the ABA Model Rules of Professional Conduct that "[a] lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social or moral views or activities.“I was alarmed to learn that there is some opposition to Mr. Adegbile's nomination based solely on his efforts to protect the fundamental rights of an unpopular client while working at the Legal Defense Fund. His work, like the work of ABA members who provide thousands of hours of pro bono legal services every year, is consistent with the finest tradition of this country's legal profession and should be commended, not condemned. [American Bar Association, 1/13/14]