Tuesday, May 26, 2009

Dead Man Walking—Next to Me. . . .

by Katherine Scardino

For the last twenty plus years, I have been involved in representing defendants who are accused of capital murder, and in most of those cases, death was an option for the jury. I have heard the death verdict three times in that period of time—not a great number, considering I practice law in Harris County, the death capital of the United States.

I have watched our Texas Court of Criminal Appeals ignore valid constitutional issues and affirm the trial court’s sentence of death. I have watched prosecutors get away with withholding exculpatory evidence. I have watched the case involving the “sleeping lawyer”—and that was on the defense side. Pretty embarrassing.

I have watched the rise in the number of death verdicts, and now I seem to be watching a fall in the number of death verdicts across the United States, and even in my state of Texas. The fall in the number of death verdicts can be attributed mainly to the passing of a statute allowing for “life without parole,” or LWOP. Texas seemed to be hesitant in adopting this law, much later than a lot of the other states in our Union. But, we have it now, and it seems to assuage many juries away from the death penalty.

I actually felt that juries were getting away from sentencing death because of the life without parole option. So, when I was called by the Federal judge in the Eastern District of Texas about two years ago to represent this man accused of murdering a fellow inmate in a Beaumont federal prison, I readily accepted, thinking that the Federal court does not generally seek the death penalty, and even if they did seek death, since we are in Texas, we would have the LWOP option.

When the discovery materials started arriving from the Assistant United States Attorney who was assigned to prosecute this case, I soon learned that this “simple” case was not so simple after all. My client had been convicted of juvenile murder at the age of 15 years in Washington, D. C.

He was sent to several juvenile detention centers across the nation, ending at a place in Brush, Colorado, which was later closed due to allegations of abuse and neglect. After being in these juvenile centers for approximately two years, he was released back to the same dysfuntional, poverty-stricken, crime-infested environment that he came from.

Given these circumstances, it is not hard to believe that at the age of 18 years, he was again accused of murder. This murder involved a dope dealer whom my client and one of his buddies believed had stolen some money from the buddy.

So, both of these young men, without a hint of morality or hesitation, found this “thief” and executed him. They were both caught, of course, and my client, at the age of 18 years, in 1999, was sentenced by a Washington, D. C. jury to 61 years to life in prison.

After a stint in prison in Lorton, Virginia, and then in Atlanta, Georgia—where he found the Muslim religion—he eventually was transferred to Beaumont.

The DC Gang in Beaumont Federal prison stuck together. Instead of an ethnic group, like the Hispanics with the Mexican Mafia or the Texas Syndicate, the DC crew consisted of young and old men who were from the DC area. They helped each other and took up for each other.

In May 2005, a man was transferred to Beaumont from Atlanta. This man had been a snitch against two of the other DC crew members. The Beaumont inmates learned he was there, with them, and conspired how and when to take him out, to “punish him.”

My client, unfortunately, became involved in this plan and was accused of putting the snitch in a headlock and holding him while another of the DC crew members stabbed him, and stabbed him, over and over—106 times. My client told me a tale that sounded believable and I actually did believe him. He seemed to be sincere. And, that was important because he was going to have to get on the stand and tell it to the jury.

The jury would know my client was in the cell after they learned about his fingerprint found inside the cell where the snitch was killed, not to mention the security videotape that shows a person identified as my client walking into the snitch’s cell along with the man who was the stabber. My client told his story to the jury; he told them he did not have any knowledge that the other guy had a shank and that he was going to kill the snitch. He tried to stop him, but could not.

Needless to say, this is a very shorthand version of this case. The reason I am relaying this to you is because a jury came back to me and said that I failed; that they did not believe any evidence I presented to them; nor did they believe my client’s testimony. The jury pronounced a death verdict for my client.

I was sitting there wondering how I was going to get over this. I wanted very much to get a life sentence for this young man. You may say, “Scardino, what is your problem? The man has now been convicted of killing three people.”

I do understand that, but this young man epitomized everything that I think is wrong with our social makeup today. He had a family who failed him; after dropping out of school in the 9th grade, no one came to his home and picked him up and made him go to school. There was no one from Child Protective Services to knock on his door and offer some type of assistance to the family, or to this child personally.

The juvenile courts took one look at him, and without more, sentenced him to juvenile life, which was supposed to mean locked up until 21 years of age. But, that did not happen. He was released at the age of 17 and some few months. After being at home and on the streets for only four or five months, he was back in trouble and the same type of trouble as before, only this time he was an adult. The sentence is a bit lengthier—like Life.

There is no parole in the Federal system. So, by getting a sentence of 61 years to Life, that meant he would serve 61 years or close to it, before he would even be considered for release.

So, even though people like the "Unabomber," Ted Kaczynski, or Oklahoma City bomber Terry Nichols, and other hardened criminals received life sentences—which are being served at the famed ultra-security Supermax facility in Florence, Colorado—this jury in Beaumont, Texas did not think this young man was deserving to live at all. Spending a lifetime in a facility like Supermax would not be a walk in the park.

During this jury trial, my expert witness told the jury what it would be like to live in a high security facility. He would stay in his cell, alone, 23 out of 24 hours a day. When he was allowed to see the sunlight for one hour a day, it would be in a very small wired cage about 16 feet tall but the top was open so that some sunlight could hit his white body. One hour a day of Vitamin D was about all the nutrients he would ever get.

What I do not understand is why we feel that we have to kill. Is it revenge? Why can’t the defendant be placed in a box for the rest of his life. God knows that he will be punished. No human contact for years would be enough to make me nuts. Sensory deprivation would be a big punishment. And, studies show that it costs a lot more to execute an individual than to place him in this box for the rest of his life. Don’t ask me to explain that statistic to you. I can’t. I just know that it is there. I would think that the cost of minimal care, minimal food, minimal needs all around, would not be as expensive as appellate lawyers, briefs, retrials, more appellate briefs, more lawyers, more appellate courts, etc. for years.

Here I am, one week after hearing that death verdict, and I cannot shake the sadness. Sometimes I just break out in tears. I have been told that I get too personal with my cases; that I care too much. And, this was a criticism, not a compliment.

Frankly, I do not see how lawyers can practice death penalty work unless they do get “involved.” The lawyer has to know every aspect of this person’s life, and frequently, that is not a pleasant duty. If the lawyer does not want to win, then how can he or she send a message to the jury that this client of mine is a human being—he deserves to live? He will grow out of his dangerous years and statistics show that inmates with lengthy sentences actually help the other inmates. As the inmate ages, his desire to cause trouble decreases.

But, no, that is not to be for my young client. He will be sent to Death Row. He will be appointed some hotshot appellate lawyer who will begin the appellate process that will take years. In the meantime, he will sit, alone, and have his memories. He will remember seeing his “family” during the trial after eight long years and the shame of it all was unbearable. He will remember not being able to look at his aunt—not that she did anything to help many years ago—in another lifetime—but she was his aunt and someone he cared about when he was a child. And, more shame. And, more loneliness and more hopelessness, and more waiting. And, for no reason other than 12 people said he should die, but another set of 12 people said other criminals get to live.

Dead man walking. . . . When will this insanity stop?


Rose said...

That is terrible. But nicely written. I never felt as though I was for the death penalty but couldn't tell you why, but you put it nicely.

Anonymous said...

I agree with Rose. The article was very well written. I work with children and families. Many foster kids and abused kids go off in the wrong direction and end up as criminals. I hate to see it. And... with some of the kids you can almost predict it.

I also do a journaling group with disabled/seniors. I just found out that one of my clients has a past. Right now I am not privy to their private info so I am not sure what he did. I see them as people and for who they are right now.

I like what she said about the Unabomber and other hard core criminals-they get life. On the other hand, someone who may have the chance to get an education and counseling in prison might be able to learn something;yet they get the death penalty. It is sad. .

katherine scardino said...

Thanks to Rose and to Anonymous for their kind comments. I know it is hard for most people to have sympathy for others who commit crimes. But, if you stop a moment and look at the baseline of this person's life, there was never much chance he would be anything other than bad. It is sad that sometimes our institutions who are supposed to help do not.

Pat Brown said...

If you stop and look at the fact the victim has already received a death penalty and the victim's family has received a life sentence, it is not nearly so hard.

pamela said...


I understand and agree with you completely. There is no reason premised in logic for the death penalty. Killing a man to prove that killing is wrong is moronic. A life sentence without parole suffices to keep society safe, make a point, and allow redemption.

The only purpose of the death penalty is to satisfy the hunger for vengeance.

I am a criminal defense attorney and I live in a state without the death penalty. We have a very low homicide rate. I had one federal death penalty case, which settled in a non-death plea agreement. However, I found the matter extremely unsettling. The fact that my client could be killed in cold blood by the federal government distressed me in a profound way. I won't take any more death penalty cases, and I don't know how you continue to do so.

Pat Brown, you are wrong. It's plenty hard. And to me, application of the death penalty when you could have life without parole is unconscionable.

katherine scardino said...

Pamela: Thank you for writing. Of course, I agree with your thinking. You questioned how I could continue to do this kind of work. If someone like me does not continue to fight against the death penalty, then all we wiil have are people who believe like Pat Brown - which is understandable, but it is not an opinion that I could adopt, ever. I agree that killing someone because they killed someone is moronic thinking. We are better than that.

Roci said...

I understand you emotions in this, but the fact is that your client was removed from the general population of the United States because he was too dangerous to law abiding citizens. Then he proved himself too dangerous to even be around other hardened criminals. Certainly they don't all deserve death at his hands. The criminal justice system has an obligation to the other criminals to provide for their safety, since they have no option to flee from a dangerous situation. What do you do with someone who is too dangerous to be around anyone? What do you do when such a person learns that by law they are bullet proof and can do anything they want, because all you will do is add time to their life sentence?

You don't like it, but your client is the poster child for why there ought to be a death penalty.

Soobs said...

Your client ALREADY was "placed in a box" and he, again, killed someone. When would you suggest we stop giving chances to murderers? Who is going to protect the other criminals, from him? It's very obvious has has not ONE scintilla of a care for the rights of others, just to live. When does he start taking responsibility for HIS choices? Why must you make this a "societal" problem, instead of focusing the blame where it should be...on HIS head?

Anonymous said...


"Killing a man to prove that killing is wrong is moronic. A life sentence without parole suffices to keep society safe, make a point, and allow redemption." I'm not sure I agree with the death penalty anymore but to suggest it is moronic is quite simplistic.

If you take a murderer off the streets he can no longer murder. This suffices to keep society safe only to the extent that this person remain behind bars and actually serves the sentence he was dealt. "Murdering" a murderer assures he cannot EVER murder again. It's impossible to determine how many lives are saved. This is always conveniently ignored. Further, while there is some truth to lifers improving with age, lifers have nothing to lose and they still pose a great threat to correctional officers (and medical staff etc.) like my father, who has been attacked before, and his fellow guards who have been murdered. Most people don't value people who murder our citizens, just like people who murder generally don't value their life or the lives of others. They pose a fatal threat and, as such, redemption is not an issue here.

Were capital punishment applied swiftly and not bogged down for years and years on end then the death penalty may prove to be an effective deterrent. That's the basis of the "moronic" argument, in addition to the aforementioned. It may not sit with you right, but it is logical. Engaging with opposition in the manner you have is unproductive and inappropriate for an adult discussion.

As it stands, the punishment is not uniformly enforced and varies so much from state to state. And, cases like Cory Maye's are a fine example of the justice system gone wrong, and why the death penalty is debatable. Opposition to capital punishment would be wise to focus on cases like these to influence people against the death penalty, rather than focusing on thugs who had tragic childhoods. By all accounts my grandparents should be backstabbing murderers because of their terrible pasts. Instead, they are productive citizens who fought their way out poverty and crime ridden areas. It is unfortunate that people aren't given the chance that a lot of us are, but that should never mitigate murder.