Between a Rock and a Hard Place

by Katherine Scardino

At times during my legal career, I have faced really tough decisions -- and most of them have been similar to the one that is nagging me now. I am representing a 20-year-old Hispanic man who is accused of capital murder. He was 18 when he killed another human being. We have a trial date, and the State is hoping a jury will convict him of capital murder. If the jury does, there will be no punishment hearing, because the prosecution chose not to seek the death penalty. Instead, the judge will immediately sentence him to life in prison without the possibility of parole -- ever. It also means the defense has no opportunity to tell about any mitigating circumstances that might sway the jury toward mercy or sympathy for this young man.

Life without possibility of parole is second only to the death penalty in our American scheme of punishment options. I call life without parole “death in the penitentiary from natural causes”. That is what it means. A life without hope; a long life in a box with a hole in the door through which he is fed three times a day. Many years with no human touch.

But this young man has a defense. He told me a story about what happened at his cousin’s house that balmy summer morning about two years ago, and I believe him. I believe him because the story makes sense. The basic facts of his story are irrelevant to my dilemma, but suffice it to say that he killed a man in self defense. You may ask: So what is the problem? You have a defense to murder. All you have to do is get it out in front of a jury. The jury will believe it -- because it is true -- and they will understand the legal ramifications of self defense. They will know that a not-guilty verdict is proper under the circumstances. Yeah, right. And pigs can fly.

Defense attorneys are well aware that not-guilty verdicts are very few and far between, regardless of the client's guilt or innocence, regardless of whether he has a defense for an otherwise criminal act.

As most people know from experience or news reports, the prosecutor will generally make a plea-agreement offer some time before the trial starts. The prosecutor will offer to trade a certain number of years in prison for a guilty verdict. But in my case, where there are only two possible punishments -- life or death -- the prosecutor must get approval from the boss to reduce the charge from capital murder to murder. That's the only way the prosecutor can offer a set number of years in prison. For example, the prosecutor offers to reduce the charge, and the defendant agrees to spend thirty years in prison.

A thirty-year sentence means he would spend approximately fifteen years in prison before he could be considered for parole -- a long time. But the big deal here is the possibility of parole at some point, years in the future. Without a plea bargain, the defendant has to face a jury on a capital murder charge, a jury that could convict but not make no punishment decision.

So here is the choice: my client has a defense and facts that might, just might, cause the jury to return a verdict of not guilty. Under our laws, this is the right thing to do. But the reality of this situation is not so clear. The defendant takes a risk that is hard to fathom. He risks losing his life forever. Or, he can agree to a plea bargain and spend many, many years in prison. But he'll still have a chance at a life someday. He won't die of old age in prison. At my client’s age, he might even be be able to get married and have children after he has served his sentence.

The last time I tried a capital case without a potential death sentence, the result was a not-guilty verdict. Can that possibly happen again? Can I choose a jury who will actually follow the law if they believe the young man acted in self defense?

Lawyers understand how difficult it is for a jury to overlook the fact that a person has been accused of committing a crime by the powerful State. Why would that person be sitting here if prosecutors had no evidence of guilt? How could the case have gotten so far otherwise? The physical set-up of the courtroom itself is serious and intimidating. There's a judge sitting up high wearing a black robe, a court reporter, lawyers on both sides of the table with stacks of paper and files; people in the gallery, and twelve people who are supposed to be “jurors of the defendant’s peers."

As I noted, not-guilty verdicts are few. The prosecutor will likely suggest to the jurors that when the trial is over, the defendant may ride down in the elevator with them if they haven't convicted -- meaning it'll be their fault if he's allowed to continue his alleged murdering, raping, robbing ways. As a lawyer, I was trained to believe that the law is the rule of life; that everyone would follow the law; that our constitution was what separates us from less-civilized countries. I still believe in our legal system, but I no longer believe that juries follow the law when deliberating on the fate of a defendant.

My young client turns to me. “Miss Katherine, what do you think I should do?” I will let you know next time....

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Life in Prison

By Katherine Scardino

I stood next to a man today who was about to start a journey - not a pleasant one, but a very, very long one. He was sentenced to life in a Texas prison for murdering a man during a store robbery.

He was originally charged with capital murder. But after defense attorneys and other experts investigated his personal history and the facts of the case, and after he agreed to stipulate that this crime was committed with his co-defendant, prosecutors agreed to a plea bargain. They reduced the charge from capital murder to murder. This means that some time in the far, far distant future, the convict may be eligible for parole. Had he received a life sentence on a capital murder charge, he would never, I repeat - never - be eligible for parole. There would never be a time in his life when he could walk up to the parole board and ask to be released. Every day for the rest of his life, he would be stuck behind bars.

Instead, this defendant will spend at least 30 years in prison. He is now 20 years old. Add 30 years to his current age, and he will be 50 before he is even eligible for parole - and I say “eligible” because there is no assurance that he will ever make parole.

Some citizens of our country retch at the sound of the word parole. They can't stand the idea that someone could commit such a despicable crime and even think of a time when he might walk around a free man. Today, I stood next to my client and listened while the sobbing wife of the victim told the courtroom what a good man her husband was. She said he was a fine, responsible husband and father, a hard worker, a considerate and sensitive man. She told my client that if he had just asked her husband for money, he would have given it to him. My client hung his head and cried. He told the widow how sorry he was: Sorry he ignored his common sense; sorry he was at the store in the first place; sorry, way too late, that he couldn't give his life for her husband's. There was not a dry eye in the courtroom. It was impossible not to be touched by such an open display of emotion between the two people forever affected and connected by the events of about 10 minutes one night in the hot summer month of June.

No one can bring the store owner back to life. His wife and his children will live the rest of their lives remembering that night and this day. They will never forget the day their father's killer was sentenced to life for the lesser offense of murder. One day, as a much, much older person, this killer may walk free.

But what is the right thing to do with a 20-year-old offender? He is far from being a man. He was stupid, and his stupidity created a hole in the lives of many people.

What can we do to change this society we have created? In this society, boys and girls, like my 20-year old client, are on the streets at all hours of the night. Boys can get their hands on guns of all sizes and calibers. Boys drive looking for enemies to attack. Boys think nothing of robbing a store to get what they want.

Why in the world can't we fix this? Why don't our leaders see that we have a broken society that can't be overlooked much longer? We are becoming a generation of mean, evil people with no regard for human life.

It is not this boy's fault. I defy you to say it is. The root cause is not this 20-year-old’s fault. We, as adults, as parents, as teachers, as lawyers, mayors, judges, all have a role in these young lives and we, I repeat WE, are responsible. We did not physically and actually place a gun in this boy's hands, but WE are responsible for the lifestyle, the lack of education, the lack of teaching that creates a mind that says it is OK to steal in order to get what he wants. And, as a result of all this laxity in our society, we have a situation that happened in 10 minutes one hot night last June - a situation that will be forever remembered by this wife and her small children.

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