The Defense Takes the Floor

by Kathryn Casey

In our ongoing series of WCI interviews, we last talked with Donna Pendergast about the ins and outs of being a prosecutor. Today, the tables have turned, and the defense takes over the courtroom, or, perhaps I should have said, our blog. WCI contributor, renown defense attorney Katherine Scardino has agreed to answer our queries. It's always been my view that there are a lot of people who misunderstand the role of a defense attorney and, perhaps, underestimate or even dismiss all they do for our system of justice. So this is our turn to hear from an insider what it's like sitting in the courtroom next to a client on trial for murder, knowing that if you lose, that person may die.

KC: Why did you become a criminal defense lawyer?

KS: I was so excited to finally get my college degree (in 1979) at a “more mature” age than most college graduates, that frankly, I wanted to go further. I was aware that I could not do much with a degree in political science. My husband at the time was a defense lawyer, and I had gone to court to watch him in trial. Not only was I influenced by Robert, but there was also a female lawyer named Jan Fox, who I idolized at the time. She was a lawyer representing a co-defendant in a federal case my husband tried, and I went to federal court to watch some of the proceedings. I saw her as well organized (more so than the male lawyers), well spoken, smart--and a female yet! So, she became my “goal,” so to speak. I wanted to help people--which is the standard answer to this question--but I also wanted to be a woman doing a job well that had generally been done by men.

KC: What do you think is the most common misconception about your profession?

KS: I think the most common misconception about what I do for a living is the idea that defense lawyers are doing something immoral by representing guilty people. People feel that those who are charged with heinous crimes--murder, robbery or, even worse, crimes against children of any type--should not have due process. These people, it is felt by most, do not deserve any consideration. Just find them guilty and put them in prison and what does it matter that they are not afforded the generally accepted ideals of constitutional rights.

KC: Do you think most people really understand the importance of a criminal defense attorney’s role in our justice system?

KS: Some people do, but most do not. The perception that criminal defense attorneys are protecting “your” rights as well as the rights of the defendant is just not something citizens grasp until I tell them in voir dire (jury selection).

KC: If people would look at you today, polished, a highly educated and successful woman, would they understand, do you think, the poverty you came from?

KS: No, I do not think it would be something that would come to mind today. I do not discuss it, nor is it a subject that anyone else asks about. There have been articles about me that have discussed those environmental issues while I was growing up, but most people do not think about that. A person hiring me only wants to know what I can do for them. Remember, these are people who are in crisis. They do not care about me or my background--only if I am able to help them get out of this crisis situation.

KC: I know that you’ve said that you were a victim of sexual abuse as a child. That seems like something more likely to make one a prosecutor than a defense attorney. Does it impact the way you see those charged with similar crimes? How about the way you see victims? In what way?

KS: Oddly enough, I never remembered anything about being sexually abused as a child until I was about 40 years old and already a lawyer. I remember the day. I was at home in the early morning hours watching the Today Show, and the subject was child sexual abuse. The guest was a mental health expert talking about how such abuse affects the victims.

I felt like someone had punched me in the abdomen. It hit me like a ton of bricks. That was me! I had repressed all those bad memories as a child, but then I remembered everything and it was amazing. I began to cry, then stopped and wondered if wallowing around in self-pity was what I really wanted to do. From that point forward, I have believed that people who have suffered some kind of abuse or injustice during their formative years can do one of two things - they can wallow around in self pity and play the victim game or set it aside and rise above it. No one wants to hear anyone else complaining about something that happened 20, 30 or 40 years before. It just should not be relevant. That is not to say that the abused person does not have feelings about what happened, but people must deal with it in their own way without being a “whiner” in other’s eyes. Most unattractive.

Those are my thoughts about the abuse itself and how I chose to handle it. You ask whether, based on what happened to me, I should have been a prosecutor. I think under other circumstances, I might have been. But, I was married to a criminal defense attorney (since age 26), so my leaning was toward criminal defense.

Does my experience impact on the way I handle child abuse cases now? In a word, no. I understand fully that my job is not to make moral decisions. I represent people who wish to hire me to help them in the most critical times of their lives. The victims of child abuse are not victims until a jury says so. And, regardless of general opinion, there have been many cases of false allegations. So, both the state prosecution and the defense attorney should take a cold, hard look at the evidence and accusations in each case.


KC: What is the most important quality for a criminal defense attorney?

KS: Unlike most other attorneys, I feel that the most important quality for me is my passion for the case. I have been criticized that I take each case personally, and that is certainly true. If I feel that a person has been wrongly charged, I will not rest until I have done everything possible to prove his innocence or to get the case dismissed by the prosecution. If I feel that the police or some other agency has committed unconstitutional acts against my client, I will fight for the suppression of that evidence. For example, if the police coerced a defendant to make a statement; if there is evidence of the state withholding exculpatory evidence, then that is fodder for my passion against injustice. I cannot understand how a lawyer can represent another individual without knowing everything about that person so that he can feel how that person felt under certain circumstances and, most importantly, get that feeling across to the jury.

KC: I’ve had some attorneys tell me that they never ask if their client is guilty. They don’t want to know. Others that they have to know to mount a defense, with today’s forensic evidence. Do you ask? Why or why not?

KS: I think defense lawyers say they don’t need to know because that sounded good years ago. However, you are correct - in today’s world with DNA and other forensic sciences, the defense lawyer has to know what to expect in a trial--and how to rebut it. If there is a possibility of DNA on the victim’s clothes, then the lawyer must know how and why.

KC: If you have a client who is obviously guilty, who has committed a horrendous act, does it change the way you view your role? Does it change the way you try the case?

KS: Of course it does. If the evidence is strong against my client, then I have to either find a way to explain the evidence to convince a jury that the evidence does not rise to the level of “beyond a reasonable doubt," the standard in Texas in a criminal case, or considering whether to attempt to work out a plea bargain with the state. If that becomes impossible, then it may be that the only chance my client has of a lesser sentence (sometimes other than death or life without parole) is in the punishment hearing, where the defense lawyer can present evidence to the jury regarding a client’s background, mental health or medical history, etc. - called “mitigation.”

KC: You won the first acquittal in a capital murder case in Harris County in over 20 years, with the Joe Durrett case. This in a county that at the time had what some called a “death machine.” How do you view the death penalty? I’ve read that you once believed in it but that you aren’t so sure any longer. Is that true? What do you see as alternatives?

KS: Years ago, I did believe that sometimes a person did something so heinous that I could personally pull the switch on the electric chair, or in today’s environment, inject the lethal concoction to stop his or her heartbeat. Those people just did not deserve to live in our world where the rest of us followed the law, worked and provided for our families, had a belief and moral system that made up a structured world where we all could live together.

But, over the years and after handling around 45 capital murder cases, I have come to the conclusion that while the death penalty may be appropriate in some cases, my state, Texas, should not have a death penalty under the current system. It just is not administered fairly. We have 254 counties in the State of Texas and 254 different systems of whether a prosecutor decides to seek the death penalty.

For example, a person could kill someone in Harris County (Houston) and be charged with capital murder. If he commits the same crime in one of the other 253 counties, that same person may--or may not--be charged with capital murder. The decision rests solely with the district attorney in that particular county - and money. Can the county afford to pay for a capital murder trial? They have to pay for defense lawyers, experts, prosecutors, judge, court reporter and a myriad of other costs associated with trials. In some cases, a capital murder trial can cost around $1 million. Some smaller counties simply cannot afford it. Is that fair?

KC: The Durrett case was an amazing accomplishment. I wonder if you got the attention from it that you would have had had you been a man? Sometimes, it seems, women’s victories are diminished. Did this happen in this case?

KS: Only a woman would ask this question. The answer is a resounding “yes.” The Durrett case was tried in 1997, and as a member of the Texas Criminal Defense Lawyers Association, an association that recognizes outstanding accomplishments by its members, I felt that they would do something. In 1998, Mike Ramsey, another defense lawyer in Houston, won an acquittal in the Robert Angleton case here in Houston. Angleton was accused of hiring his brother to kill his wife in his River Oaks home, the wealthiest neighborhood in Houston. TCDLA, awarded Mike Ramsey “Lawyer of the Year”--and to top it off, he accepted the award as having had the “first acquittal in a death capital in Texas in 25 years.” I sat in the audience amazed that no one said anything to correct this - or maybe no one cared. Unfortunately, I still believe that women today do not get the same recognition - or pay - that men get for the same job. For me, the glass ceiling is not broken.

KC: Most of those who follow the headlines would agree that it’s obvious there are innocent men and women in our prisons. A year or more ago, you and I were out together, and you told me about a case of yours, Anthony Graves (photo right), who’d been convicted of participating in the horrific murders of an entire family. On Texas’ death row, Graves won an appeal, and you were going to represent him in a new trial, one that could either result in his freedom or his execution. That night you told me repeatedly that you knew your client was innocent. What’s it like when you believe your client is unfairly charged and his very life is in your hands?

KS: It is an awesome responsibility. The closer to a capital trial, the less sleep I get. I keep asking myself if I have done everything I should have done; what else can I do? Am I really ready to go to trial? Maybe we should get a reset again? It goes back to that passion I mentioned earlier in another question. By the trial day, I am truly a basket case--but after 26-plus years, I now realize that once the jury is seated, and I actually start, everything smooths out and I go to work. There is no more time for the luxury of being nervous. And, I have convinced myself that when I speak to the jury, I am actually just talking to people. They are just people who have their own life’s experiences, just like all of us do. So, I have to ferret out what those experiences are that might impact how they would look at my client and the facts of this specific case.


But, you mentioned Anthony Graves. I was convinced early that Anthony Graves was an innocent man. It really did not take much. All it required was a thorough, competent investigation of the case. My team had a wonderful investigator who could answer all questions. We all were convinced he was innocent. But, that conviction within each of us was a torment. How to convince the prosecutors to dismiss? It did not take long for us to realize that was not going to happen. Or how to convince a jury to find a death row inmate innocent of a crime that occurred 18 years ago? If we had a trial, it would have been an enormous hill to climb, and frankly, I am not sure the jury would have found him not guilty.

Remember, “not guilty” simply means “not proven” beyond a reasonable doubt, but it would have been difficult for any jury to let him go. After all, six people were brutally murdered. But there was NO evidence Anthony Graves had anything at all to do with the crime, plus the prosecutor in his trial withheld evidence and intimidated witnesses not to testify on his behalf. Combined it seems that it should have been enough to convince even the most hardened prosecutor in Texas that he was actually innocent, which it eventually did.

KC: After 18 years behind bars, this past October Graves was set free. Due to your hard work, that of the rest of his defense team, and the conviction of a former WCI contributor, prosecutor Kelly Siegler, who looked at the case as she prepared it for trial, and came to the same conclusion you had, that Graves was an innocent man. As you've said above, there was, in fact, never any evidence connecting Graves to the crime. What should be done with prosecutors who ignored the truth or manufactured evidence where there isn’t any?

KS: This question is easy. Prosecutors take an oath to see that justice is done. They do not swear to get a conviction in every case. I believe that when prosecutors sway off course, away from their oath of office, they should be prosecuted - just as a defense lawyer would be if that defense lawyer committed intentional illegal acts to see that a person was freed. The State Bar of Texas refused to accept a complaint against the prosecutor who did all those things to Anthony Graves in 1992 through 1994. Charles Sebesta probably thinks he is home free with the absolute immunity that he has now. But, he does not understand the tenacity of the lawyers representing Anthony Graves. That will be something to watch in the future.

KC: Admittedly, many of those who commit crimes have endured difficult lives, often of poverty, and sometimes terrible abuse. How do you think this should be considered in a trial? At what point does it become relevant?

KS: Our law provides that only in the punishment hearing does evidence of a defendant’s background, mental health, abuse, etc. become relevant. Defense lawyers are required, according to the U.S. Supreme Court, to competently and thoroughly investigate the client’s background and to produce mitigation evidence. If we do not do that, we may be found to have provided ineffective assistance of counsel. Mitigation evidence can mean the difference between death and life without parole.

KC: In the Calvin McGee case, you had a client who’d clearly committed a horrendous murder, shooting a woman through the head as she sat in her car. McGee was convicted, and in sentencing his life was on the line. You addressed the jury, explaining that your client had suffered emotional, physical, and sexual abuse while growing up in abject poverty. At one point you asked, “How can you expect someone to crawl out of that environment?” Despite your pleading for his life, McGee was sentenced to death. What do you think that says about our society?

KS: This was my first death sentence, and I was very upset about this verdict. I had spent enough time with Calvin to know exactly what happened in the incident. I knew his family; I had been to their home. It was hard to hear those words after a heartfelt plea for him to be able to live in a box in a Texas prison for the rest of his life. What would it have hurt to let him live? It would have been cheaper on the taxpayers for him to live. What is wrong with having this person be alive, living in a 10-foot by 10-foot space, with a slot in the door where a guard pushes a tin plate through it during your three meals a day. And, there is no human contact. There have been many articles written about the results of having no human contact. It does not take long for a person to decompensate to the point of being mentally ill after a total withdrawal of all contact with other people. Do jurors think they would be doing him a favor by letting him live like that? I have never understood the need to kill. We kill people who kill people. Amazing!

KC: Katherine, should we routinely consider childhood abuse and poverty when assessing punishment for crimes, especially murder? Don’t many people go through similar experiences and live good lives? In fact, haven’t you done what you said McGee couldn’t be expected to do?

KS: Yes, we must routinely consider all the client’s experiences when the jury considers the appropriate punishment. How else can you do it if you do not know this person? Every person - every crime - is different. There is no set punishment for murder, robbery - there is a range of punishment - and the proper number of years in prison, or a probation possibly, depends on the specific person. So, the jury must consider every angle of a person’s life. It has been my experience that most, not all, but most juries try very hard not to hand out a death sentence, especially in today’s world after so many people have been found to be innocent after spending years and years in prison.

You asked why I am not a criminal after having experienced some of the same - I was a white girl growing up in the '50s and '60s. I was sent to school and believe it or not, some of that schooling and my father’s Church of Christ teaching must have sunk in. Most of these young black men, and yes, most are young black males, do not have even what I had. Every person is different and responds differently to the same circumstances.

KC: If someone is charged with a crime, what’s the first thing you’d advise them to do? What do most people do wrong?

KS: This is a good question. The first thing I tell all my clients is to shut up. Many defendants are convicted because they gave a confession. And yes, it is their constitutional right not to say anything. Why help the prosecution convict them? Would you want your son to immediately tell the police if he committed a crime, or would you prefer to hire some criminal defense lawyer to defend him - which can be done a lot easier without a confession. The police are not your friends when you are arrested. They want you to think they are, but they are not.

KC: Is there one thing you’d like WCI to understand about the justice system? What is it?

KS: I have noticed that many of our contributors are people who are attempting to gather evidence to convict the accused. I understand that it is hard for people in those fields to remember that all citizens of the United States have certain rights that are afforded them under our wonderful Constitution. Those rights should not be violated, under any circumstances. And, we all must fight to protect those rights, even for the most guilty.

It is easy to forget those rights until it is our son or daughter, husband or wife, who finds him/herself caught up in the criminal justice system. Then, we scream for a defense lawyer and for our rights. You know, as I do, that our criminal justice system is flawed and that it may be your son, daughter, husband or wife who is accused, found guilty when actually innocent and sentenced to a term in prison. So, I want everyone to remember to be careful. Be careful when you are judging another person that you have an open mind, that you do not pre-judge unfairly.

Tweet