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His defense never rests

Criminal defense attorney Jay Carney takes on the gruesome cases that no one else will

By Bella English
Globe Staff / December 7, 2005

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It was the last day of 1994, and attorney Jay Carney and his colleagues were crowded around a TV in a conference room, watching the arrest of John Salvi, who had shot up two Brookline abortion clinics, killing two workers and injuring others. Salvi had just been caught in Virginia after spraying dozens of rounds at a Norfolk clinic. In the middle of the breathless newscast, Carney took a telephone call, then came back in to finish watching.

''I wonder what idiot will represent Salvi," mused one of Carney's law partners, shooting him a knowing look. Yep, Carney had just gotten the call from the public defender's office.

Chances are, if it's a particularly gruesome, high-profile case in the Boston area, J.W. Carney Jr. will be the defense counsel. His clients have been charged with stabbing their children to death, and bludgeoning and poisoning their wives. He once defended a doctor charged with killing his estranged wife's lover as both men visited the woman in a hospital room. He is currently representing a woman charged with first-degree murder for allegedly shaking to death a baby at her home day-care center.

And today, Carney will be in Middlesex Superior Court in a pretrial hearing for his latest headliner: James Keown, the talk-show host charged with slowly poisoning his wife with antifreeze-laced Gatorade.

Carney, 53, has been called the patron saint of hopeless cases, and causes. ''I prefer to see it as, I get to meet the most interesting people," says Carney, who has sat next to a motley assortment of killers, rapists, and stalkers at the defense table in the 20-plus years he has practiced criminal law. He grins. ''My mother still occasionally asks me if I ever give any thought to real estate law."

But Carney has known since he was a teenager that he wanted to be a defense attorney. ''I'm someone who had a dream and am living it," he says. In his third year at Boston College Law School, he worked three days a week as a public defender in Boston courts and a fourth as a student prosecutor in Lowell. After graduation, he joined the Massachusetts Defenders Committee and five years later switched to the Middlesex district attorney's office, where he prosecuted felonies.

It was during that time, from 1983-1988, that Carney tried a case that still haunts him. Dennis Maher was 23 years old when he went to prison for raping two women and assaulting a third. He was released in April 2003 after serving 19 years when DNA evidence proved what he'd said all along: He was innocent.

Carney was the prosecutor who put him away. He was also in the courtroom when a judge set Maher free. ''He came right up to me and said he was sorry and asked for my forgiveness. He was in tears," says Maher, who is a diesel engine mechanic from Tewksbury. ''I think he's a stand-up person. If he believes he's done something wrong, he takes responsibility, no excuses." Maher says he blames the police who presented the district attorney's office with the faulty evidence. In the years after the verdict, he says, Carney actually tried to help him.

Carney went to the public defender's office and asked it to appoint a top lawyer for Maher's appeal. ''I said I had no reason to believe he was not guilty, but I was convinced that he was represented by the worst lawyer ever seen," says Carney. Still, he remains amazed at Maher's attitude. ''Dennis Maher could have devastated me . . . and instead, he literally embraced me."

For richer and poorer
In 1989, Carney founded his own law firm with a partner, Janice Bassil. He has defended multimillionaires and homeless people, including a bag lady charged with disturbing the peace. ''It was July. She showed up wearing three overcoats and pulling her carriage," he recalls. His next client was an executive charged in federal court with a pornography offense. ''As we walked to my office, he jokingly asked me if she was also a client, and then asked how she could afford me. I said, 'With what I charge you, I can represent her for free.' "

''Actually," Carney says, ''I liked her a lot better than I liked him."

Carney gets his indigent clients by being on what is known as ''the murder list," a list of lawyers deemed qualified to take homicide cases. For years, they made $54 an hour. (They recently got a raise and now make $100 an hour.) His private practice, he says, charges eight times that. In addition, he does pro bono work, including his current representation of a mother of five charged in a drug case.

Carney, who lives in Newton, drives a BMW and sits on the governor's judicial nominating committee. But he grew up in modest circumstances, the oldest of four, sharing a bedroom with his two brothers: ''three single beds right in a row." His father worked for the phone company, his mother stayed home, and Carney credits them with instilling in their children an appreciation for the underdog. In high school and at Holy Cross College, Carney was influenced by the Vietnam War and the Watergate scandal. ''I got the feeling that government can abuse the enormous power it has over citizens," he says. He went on to law school, intending to become a public defender.

His clients are often the ones the public loves to hate, including juveniles charged with violent crimes, and as their attorney, Carney has been the target of threats and verbal abuse. He shrugs it off. ''People hate what I do until they need me, and then I become a godsend." He stresses that most of his clients are people the public has never heard of. ''My typical client is a suburban individual who has never been in trouble before."

A formidable adversary
Kenneth Seguin of Holliston was a suburbanite who had never been in trouble. Then in 1992 he stabbed his two young children to death and dumped their bodies in a pond before bludgeoning his wife as she slept. ''I don't think I have ever represented a client who was more beloved and admired for his dedication and love for his family," says Carney, whose client is serving three life sentences.

It is these kind of robust comments that have riled public sentiment. During the Seguin trial, Carney told the jury that Seguin did not want to ''hurt" his sleeping wife, so he killed her with a single blow from an ax. And instead of dumping the children's bodies in the pond, he ''buried them in water." Carney argued that Seguin was not responsible because he was mentally ill and managed to get a second-degree murder conviction instead of first-degree. Still, he believes ''that was a grave injustice."

David Meier prosecuted Seguin and has known Carney for years. ''I think Jay is as formidable a courtroom adversary as there is," he says. ''He's thoroughly prepared. His passion for his cause, his belief in his client come across loud and clear."

Judge Robert Barton, now retired from Superior Court, presided over the Seguin case, and the Maher case, watching Carney in action on both sides of the bar. ''He's one of the top five criminal defense lawyers in the state," he says. ''He does a heck of a job for his clients." But doesn't Carney lose a lot of cases? ''Unfortunately, maybe these people are guilty," says Barton. ''The only lawyers who win all the time are the ones who cherry-pick their cases, and he doesn't do that. He takes the toughest cases."

In fact, Carney says he has turned down only one case, that of an alleged commandant of a concentration camp during World War II. ''My wife's parents are Jewish, and it would have been emotionally difficult for them, especially where my father-in-law was a soldier who liberated Jewish prisoners," he says.

Carney has long held an interest in mental health, volunteering at state mental hospitals when he was in high school and in college. A cousin his age suffered from mental illness. Despite family attempts to help, she was in and out of homeless shelters for years. After she died in 1994, Carney found his way to the Women's Lunch Place for homeless women.

For years, he went in to wash dishes on Friday mornings before heading to court. ''I felt washing dishes for homeless women would put the blessings of my life in perspective," he says. ''Plus, I had felt I was getting a little too highfalutin. I'd had some high-profile cases and I was thinking I was better than I was." He now serves on the board of directors and occasionally still does dishes: The day after Thanksgiving, he ran into his buddy Ralph Martin, the former Suffolk district attorney, who had also signed up for sink duty.

By reason of insanity
Mental illness plays a large role in Carney's legal work; the Salvi abortion clinic case quickly became a public referendum on the insanity plea. Carney argued that Salvi was delusional and therefore not guilty. But he was convicted of first-degree murder and was serving two life sentences when he killed himself in prison.

Nicki Nichols Gamble was president of Planned Parenthood and sat in on the Salvi trial daily. ''I had not the slightest sympathy for John Salvi; I really profoundly hated him," she says. ''But I would not have wanted him not to be well represented, and I think Jay Carney aggressively represented him. He wasn't successful, but it's hard to get people off on insanity, and it ought to be."

When he represented Salvi, Carney was a member of Mass Choice; he's a current member of the National Abortion and Reproductive Rights Action League. His family and most of his friends are prochoice. ''They were horrified that I was representing Salvi," he says.

A healthy ego
For the past 25 years, Carney and his wife, Joy Rosen, have spent New Year's Eve with Bob Gittens, a former top law enforcement official in Massachusetts, and his wife, Donna, and Ralph Martin and his wife, Debbie. ''You have to admire someone who can look at these folks who nobody else wants to take on," says Donna Gittens. ''Jay believes everybody deserves legal counsel regardless of what they might have done. Sometimes, it's tough to swallow and we do argue with him. But he really believes in it. He is a fierce defender."

He's also a fierce competitor, and those who have seen him in action have commented on his healthy ego. ''Anybody who's in that business has a big ego," says Barton. ''It's show business, you're in front of people."

Carney acknowledges being competitive and confident; there's a bull's skull hanging in his office that he bought at a roadside stand in Texas. ''Criminal defense lawyers are considered cowboys," he says. Whenever he walks into court, he ''absolutely, positively" believes he'll win the case. He adds, laughing: ''With some of my cases, I'm delusional, given the evidence against my client."

Does it give him pause when he gets a guilty client off? He gives the question a lawyerly dodge. ''My goal is simple. I want to see justice done. If that means my client is acquitted because the government can't prove its case, then that's justice. If a fair sentence follows a guilty plea, then that's justice." He says he has never had a client who told him he was guilty be acquitted; more often, the ones he believes are guilty turn out innocent.

It has been nearly 10 years since the Salvi case, and Carney still laments the verdict. But he finally scored a victory, of sorts, in the case. Recently, the Boston Battle of the Lawyers charity fund-raiser pitted five prominent attorneys against one another as they re-created their most famous closing arguments. There was Jan Schlichtmann of ''A Civil Action" fame, and now-Judge Nancy Gertner, who used the first successful battered women's defense in a murder case. Carney reprised his closing argument for Salvi.

The ''celebrity jury" chose Carney as the winner. ''The jurors said my closing was the most compelling," he says. ''And yet it was the only one among the five that was unsuccessful at trial." He sighs. ''It's a tough, tough business."