Lawyers and Innocent Clients

by Katherine Scardino

One question criminal defense lawyers get asked almost daily is: "How can you represent a person you know or think may be guilty?" That question is usually asked with a snarl on the person’s face. By "snarl," I mean the lip is curled up, eyes are narrowed, and a judgmental and totally disgusted expression is on his or her face. It’s the kind of facial expression that provokes most of us Type A personalities to start screaming and hitting. But, over the years, I have learned to calmly respond to this question this way: Because it is the right thing to do.

I tell my juries that when their son is stopped by a police officer for a traffic offense, after he has had a beer on the way home with one of his buddies, then the lawyer is not such a bad guy (or girl) after all. The officer, of course, smells that one beer and then begins the usual "side of the road" routine - fingers to the nose test, walk and turn, lift your leg, etc. and if you dare to refuse, off to the Station your son will go. Or, even if you don’t refuse, the officer most likely will take your son to the police station and offer him the chance of performing these same tests in front of a video camera and then the grand opportunity to prove his innocence - the intoxylizer. When you, the parent, get that dreaded phone call saying, "Come get me, HELP!" . . . what is the very next thing you will do? Call a lawyer.

But let’s analyze that. Why is it OK to call a lawyer for a child who has been arrested (and you know he is not guilty) but not OK for a lawyer to represent some unfortunate, indigent person accused of murder, rape, or robbery? Not everyone is guilty, believe it or not, and everyone is deserving of a lawyer. Even Atticus Finch knew that - and he lived (on the stage and movie screen) 40 years ago.

In 1997, I tried a capital murder case where the man was accused of murdering his wife and her sister by bludgeoning the two women to death. There were many holes in the story on both sides. The State began a series of shenanigans, ending with Chuck Rosenthal, who was a prosecutor at that time, telling the lab doing the DNA testing not to talk to me. He believed that the lab had "his" evidence and they were not to let me know the results. That was only one in a long line of incidents involving withholding evidence, manipulating the evidence, and generally making every attempt to get an innocent man convicted. He failed. The jury saw through the attempts at "smoke and mirrors" and totally acquitted this man.

I was told that this was the first "not guilty" from a jury in a death capital case in Harris County, Texas in 25 years. While I am not surprised at this statistic, I am morally appalled. Do you really think it is possible to go 25 years and every person accused of capital murder for that length of time is guilty? There is not even one little innocent person in the bunch? I do not believe that, and I cringe to think of the number of people who died at the hands of moralistic, "guilty at all costs" prosecutors.

We now hear of inmates being released from prison because DNA has proven them innocent - and I mean "actually" innocent - not some quirk occurring in the procedure of the trial. That should make every honest, law-abiding citizen shiver with dread. How would you like to be sitting on a jury having to decide whether a person lives or dies - and you make the wrong decision?

I am now representing a man named Anthony Graves (pictured right). Anthony and a co-defendant, Robert Carter, were charged with capital murder of six people in 1992. In 1994, Anthony was tried in Brazoria County, Texas, on a change of venue from Burleson County after Carter had already been convicted and sentenced to death. Anthony had two lawyers appointed to represent him. Anthony is a soft-spoken, clear headed, fairly smart man. He was about 27 or 28 years old in 1992. He was convicted and sentenced to death after Carter testified against him and told the jury that he committed the killings along with Anthony Graves.

What the defense lawyers did not know was that Carter had told the State’s investigator, a Texas Ranger, and ultimately, the Assistant District Attorney handling the case, that Anthony Graves did not have anything to do with these killings.The night before Carter was to testify in Graves’ trial, the Assistant DA, his investigator, Carter’s lawyer, and one or two Texas Rangers visited Carter in his jail cell. They wanted to know what Carter was going to say about Graves.

Carter immediately stated that Anthony did not have anything to do with the murders. The Assistant DA told Carter that if he did not testify, he was going to charge his wife with capital murder, because he suspected at that time that she had something to do with the killings. So Carter recanted and told the Graves jury that the two went on this killing spree together.

They neglected to tell the defense lawyers that Carter made an exculpatory statement about Graves’ innocence, which they are required to do under our rules of procedure. Ultimately, Graves’ case was reversed for prosecutorial misconduct by the Fifth Circuit, which then ordered a retrial.

During Graves’ appellate process, Robert Carter was executed, but the astounding thing is that on the gurney - about five minutes away from meeting his Maker - he once again said, "Anthony Graves had nothing to do with it." How powerful can that be? But the powers that be in Burleson County still do not believe Carter’s retractions about Graves, and Graves will stand trial again in July 2008.

This is the type of case that defense lawyers lose sleep over! It is a lot easier on the brain and the emotions to represent someone you know or feel fairly sure is guilty. Your work is the same - the intensity is not. So, now, after 24 years of practicing law, when I hear that question "How do you represent people you know are guilty?" I tell them it is easy because there may be that one truly innocent person sitting next to me at counsel table, and I welcome the opportunity to be his lawyer.

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