The Death Penalty, Back in the News

by Holly Hughes

It’s been a busy week for the death penalty in American jurisprudence.  We seldom hear so much about it from simultaneous corners.  From Texas to Georgia to Connecticut, we have seen it take center stage this week. What I find fascinating are the varied reactions to each of these individuals cases.

Troy Davis was convicted nearly two decades ago for the murder of off-duty police officer Mark MacPhail.  In the ensuing twenty two years since that murder, Davis’ case has been heard by twenty eight different courts, including the Supreme Court of the United States.  His legal team sought clemency from the Georgia State Board of Pardons and Parole Board twice.  Thanks to the advent of social media Troy’s case generated enough attention to collect over 600,000 signatures calling for a stay.  There were protests staged at the Georgia State Capitol Building and the Georgia Diagnostic Classification Prison where Davis’ execution was carried out.  Former Presidents and Popes weighed in.  

A lot of the news coverage stated emphatically that there was no physical evidence.  Other media outlets briefly acknowledged that there was some, ie: the shell casings, which matched  casings from another shooting that Davis had been convicted of.  Much was made about the seven recantations, but little was mentioned about the fact that it took seventeen years for those recantations to occur.

I am not weighing in on the guilt or innocence of Troy Davis.  I have not read the transcripts, nor watched any interviews of witnesses.  I am simply commenting on the fact that most of the reporting on this particular case was inaccurate or incomplete at best.  However, it garnered a lot of attention and gave opponents of the death penalty a great deal of ammunition in their argument against the death penalty.

At the same time, in Texas, another man was scheduled to be, and ultimately was, executed.  We didn’t see this one widely reported.  In fact, it passed relatively unnoticed.  On the very same day that Georgia executed Troy Davis, the State of Texas put to death Lawrence Russell Brewer.  Brewer was convicted of the horrific murder of James Byrd, Jr. back in 1998.  Brewer, along with his two co-defendants in the case, committed unspeakable violence against Mr. Byrd simply because he was African-American.  It was a hate crime pure and simple.  But there was nothing pure or simple about the inhuman acts perpetrated against Mr. Byrd.  He was beaten unconsciousness, urinated on, tied by the ankles with a heavy chain and drug behind a truck until his arm and head were severed from his body.  

While Texas and Georgia were carrying out death sentences, Connecticut was seeking to have one handed down.  This brings us to the case of Joshua Komisarjevsky.  This is the monster who broke into the Petit family home, beat Dr. Petit unconscious and tied him up.  Once that was done, he then, along with his co-defendant, Stephen Hayes, sexually assaulted the Doctor’s wife and two daughters, the youngest of which was eleven years old.  When that was done, Komisarjevsky took Mrs. Petit to the bank and forced her to withdraw fifteen thousand dollars.  As if all of these abuses were not enough, when they returned to the house, these two monsters tied all the women to their beds and set the house on fire, burning them alive.

Prior to this case, the State of Connecticut was debating abolishing the death penalty.  These crimes put a quick stop to that.  In the face of such evil, the people decided  they needed the death penalty, they wanted the death penalty and they were going to seek the death penalty.  They got it.  Last year, co-defendant Stephen Hayes was sentenced to death.

So, the question that arises is: why did we not see 600,000 signatures calling for a stay for Lawrence Russell Brewer?  Why are there no protests outside the Connecticut courthouse where prosecutors are currently seeking the death penalty against Komisarjevsky? Now, the easy answer is “there was little to no evidence against Troy Davis.”  Well, who gets to make that decision?  A jury of his peers, yes, his peers.  Seven of the original twelve jurors were African-American.  

Twenty eight different courts reviewed this case and felt that the evidence was strong enough, even in light of the late-in-the-day recantations. From a purely pragmatic standpoint, allowing social media to dictate who gets executed and who doesn’t turns the justice system into nothing more than a version of Survivor (no pun intended).  No one should be voted off the island but people who weren’t even involved in the game.

Again, I cannot say whether or not Troy Davis was guilty.  I am simply asking the question, “what can we learn” from this past weeks’ multiple death cases.  If you believe the death penalty is wrong, then it’s wrong for everyone, including the monsters who commit unspeakable horrors against their fellow human beings, sometimes for no other reason than prejudice.

If the problem is with the application, then how do we fix it?  Lobby legislatures?  Call for one uniform application of the death penalty, which would be forced on all states by the federal government?  I don’t pretend to have the answers.  I will leave that to minds greater than my own.  But I find it an interesting dichotomy that the folks who oppose the unequal application of the death penalty are themselves unequal in their passion of whom they choose to rally for.

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'Not Guilty'

by Katherine Scardino

I have read about all I care to read about Casey Anthony. But, it appears that the news media and every other American citizen have opinions about this woman.

The bottom line is this: Twelve members of a jury listened to every single word of the testimony and examined every single piece of evidence presented by the state of Florida in an attempt to convince each of them to render a verdict of guilty to capital murder. Each of those 12 people, plus the alternates, sat in the courtroom and listened to every single word each lawyer said to them during voir dire (jury selection).


Jury selection is the only time during a trial when the jurors and the lawyers, both for the defense and for the state, get an opportunity to have a conversation. That means that if there is any part of the conversation they do not understand, the juror can stop the lawyer and ask any question he or she wants answered. Their questions sometimes include the meaning of a legal term, or it might be a question about a hypothetical situation that a lawyer presents to the group of potential jurors in an effort to educate each juror about the facts they will be deciding, without giving the specific facts about their case.

In other words, a defense lawyer or a prosecutor is not allowed–at least in Texas–to stand in front of the jury panel and tell them the facts of their particular case. The lawyer may only present facts to them in a hypothetical situation to try and determine how that specific juror feels about a certain topic or whether that juror has had any experience with that specific topic. The easiest example would be a driving-while-intoxicated trial. The defense lawyer wants to find out the drinking habits of the juror, or whether he or she is a member of MADD (Mothers Against Drunk Driving). So, the hypothetical would contain facts close to, but not exactly the same, as the case on trial.

The Casey Anthony jury was sequestered. That means they went to a hotel each night with no televisions of any kind and no newspapers. They did not listen to all the Nancy Grace hype and the other screaming “talking heads,” nor did they read any of the newspapers relaying every opinion from every goofball who appeared in Florida to stand on the street in front of the courthouse each day.

Because of the sequestration, they were forced to make a legal decision based solely on the law given to them by the lawyers and, more importantly, by the judge without the extraneous information the rest of the world got. That is the way our rules and our Constitution are set up to prevent jurors from being influenced by outside opinions and the popular news media. The Constitution enforces our laws that state an accused person should be judged based solely on the law and the facts.

So, can we please accept the fact that Ms. Anthony’s jury acted fairly and nonprejudicially, and rendered a verdict in accordance with their instructions from the judge. You do not have to agree with it, nor do you have to like it. But, it is what it is. If you will stop for a moment and remember all the exonerations we have read about within just the last year. For a while there in Texas it seemed like we were releasing people on a weekly basis from prison after many years for a crime that person did not commit. Our system is not 100-percent perfect–ask my client, Anthony Graves, who was released after 18 years on death row once it was concluded by prosecutors after a first-time only competent investigation that he was in fact innocent. Many people have been released who have spent more years locked up than Mr. Graves.

So, if we all believe Casey Anthony is guilty but the jury believed otherwise, accept the jury’s verdict and get on with your lives. The system worked perfectly here. The 12 jurors did not believe the prosecutor proved beyond a reasonable doubt that she murdered (intentionally taking another person’s life) her baby girl. They rendered a verdict they believed was the right one.

Now the news media is all in an uproar about the fact that Ms. Anthony is having to return to Florida to complete her probationary period. That is not much for murder. But remember, this probation is not for murder; it is for theft–stealing her friend’s checkbook, or some such thing. You want her to be inconvenienced in some manner for taking the life of her baby. But I don’t believe this will do it for you.

Take a deep breath. Remember our Constitution and our rules that we all have to obey. And, leave Casey Anthony alone. It is over. The jury has rendered a true verdict. And, these jurors do not have to answer to anyone, and especially not to Nancy Grace or any of the other media. Their deliberation and their verdict is their secret. It is really none of our business now.

Photo Credits: turtlemom4bacon; Caveman Chuck Coker; Lee Bennet

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Proof Beyond a Reasonable Doubt

by Katherine Scardino

Proof beyond a reasonable doubt is a tough burden for the State to meet. The article written by Andrea Campbell and published on Women in Crime last Friday, which discussed the many different types of evidence that may be presented in a criminal trial in the United States, within the context of the Casey Anthony trial. The State may obtain a conviction based solely on circumstantial evidence. Circumstantial evidence points to the guilt of the defendant, but is not tangible evidence to connect the defendant directly. In other words, there are no crime scene fingerprints, DNA, eyewitnesses to the crime, etc... pointing directly to the accused as the culprit. The jury may render a verdict of guilty based solely on such circumstantial evidence if the jurors believe beyond a reasonable doubt that this evidence is credible and proven. But, I do not want to write another Casey Anthony article. Let’s look at evidence another way.

I wrote an article a few weeks ago about the recent flurry of powerful men who had been accused of, to say the least, low morals - or as I wrote - acting like pigs. Along with others, I mentioned Dominique Strauss-Kahn and even violated my own rule by lumping him in with those other men, mainly politicians, who seemed to have a problem keeping their pants zipped. Mr. Strauss-Kahn was a little different in that he was actually accused of committing a sexual assault against a maid in his hotel. His position rose to a higher level of accountability and a higher level of loss. He was not looking at an angry, vengeful divorce but the possible loss of his freedom and certainly his reputation and stature in the world.

I think the circumstances surrounding Dominique Strauss-Kahn’s arrest and subsequent public disclosure in shackles are an embarrassment to the United States. We pride ourselves on the basic tenet that here, in the good old USA, a person accused of a crime is innocent until proven guilty. You hear this constantly. Is that really true? I can answer that as a resounding “No." I can stand in front of a jury and state that each juror must believe that the accused person, standing before you prior to the jury hearing all of the evidence, is an innocent person. But, the mere fact that there is a person accused of misconduct standing in the courtroom around a counsel table with prosecutors, a court reporter, a judge and now a jury, is a weight that bears on the side of the prosecutor. The accused should not be judged in the news media like Mr. Strauss-Kahn was. We should never have arrested him without having done the smallest bit of investigation to at least make the evidence appear credible. 

In Federal court, the general rule is that when a Federal Grand Jury indicts a citizen of the United States, the US Attorney’s office has already conducted an investigation sufficient to believe that the accused is actually guilty. Don’t get me wrong - that does not mean that he is truly guilty, but it should mean that the US Attorney has enough evidence to get in front of a trial jury. 

The New York prosecutor jumped the gun on Mr. Strauss- Khan. The media reported that he was hoping to run for Mayor of New York and wanted the publicity. I do not profess to know his reasons with certainty. My complaint with the manner of Mr. Strauss-Kahn’s arrest is that there appears to have been zero work done on the credibility of the State’s evidence prior to his arrest. If the district attorney had done a small amount of investigation, he would have uncovered what he now is stating publicly - that the alleged victim is not a credible person. That does not mean the act did not occur. It simply means that he cannot take his case to a jury because he does not have the right kind of evidence that he can support.

So, what will happen now? The district court judge released Mr. Strauss-Kahn from house arrest. I do not know what other bail restrictions were lowered for him, but the dismissal from the prosecution should be coming soon. Where does that leave the United States? How about red-faced?

Is this a lesson for those of us who appeared so eager to accept the maid’s story as credible? It is easy to jump immediately to a conviction in cases of sexual assault. After all, why would a woman lie about that? In this case it could be money, publicity, attention, a twisted sense of need, or a combination of all of those things. If, in fact, a dismissal of all charges against Dominique Strauss-Kahn occurs, as seems likely, we owe this man an apology.

Which brings me back, briefly, to Casey Anthony and the burden of proof. In cases where the State is trying to terminate a parent’s parental rights - the most serious case in the world of Family Law - the burden of proof is “clear and convincing evidence.” That evidence is weighed by the jury and the side who has the greater weight of evidence wins. That is a lower burden of proof than in a criminal case. Beyond a reasonable doubt is a phrase that is not defined in our Penal Code. It is not the CSI phrase that is used in error - “without a shadow of doubt." Each juror must look at the evidence and form his or her own opinion whether the evidence reaches the highest burden of proof in our country, that of beyond a reasonable doubt. It is my opinion that a capital murder trial where death is an option should not be decided on evidence that is loose or circumstantial. Apparently, the Casey Anthony jury agreed.

So, those of you who are amazed at the verdict, think again. The State decided to seek the death penalty against a woman without having evidence that rose to the highest level of proof, and these twelve individuals analyzed this evidence carefully and all twelve, unanimously, agreed that the proper verdict was not guilty. That does not mean she is innocent. It means the State could not give them enough evidence with which to convict, evidence that rose to the highest level of proof, which was their accepted burden. The jury did what they all believed was right.

Let’s put Mr. Strauss-Kahn and Ms. Anthony together. Mr. Strauss-Kahn’s case should have been investigated enough for the prosecutor to see whether he had sufficient evidence that could rise to that level of proof. The New York prosecutor has publicly admitted he has a problem with his evidence. The prosecutors in the Casey Anthony trial looked at their circumstantial case and believed that they could convince a jury that their evidence did rise to that level of proof. They just made a serious mistake because they underestimated the citizens who they helped choose to render a verdict.

photo credits: Parti socialiste, billaday

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WCI Contributors Make Their Predictions on the Casey Anthony Trial

*Blogger went offline Wednesday and apparently took our last two posts with it. They have fixed their technical difficulties and we have reposted today's blog. We apologize for any inconvenience. 

With the start of the Casey Anthony trial this week, in the death of her daughter Caylee, we’ve devoted several posts to the outcome of the trial. But none of these have the predictions of the “experts” here at Women in Crime Ink! At the end of the trial, we’ll see which one of our contributors hit the mark. Place your bets ladies: "Guilty" or "Not Guilty?"

Holly Hughes: “Casey is going down. She will be found guilty but will not receive the death penalty. The physical evidence, the circumstantial evidence and her own inexplicable behavior will be too much for a jury to ignore. However, the jury will want to parcel out the blame under the old adage, 'The apple doesn't fall far from the tree.' They won't put her to death.” 

Dr. Gina Simmons: “A jury will likely find Casey Anthony guilty because evidence of her pattern of deception and callousness seems irrefutable. Juries don't like callous liars. Since only one tenth of one percent of female murderers were death sentenced, it's likely she'll get a far more lenient sentence than a man who committed the same crime.” 

Diane Fanning: “Casey Anthony’s trail of lies will lead the jurors straight to a verdict of guilty. There is probably a small chance of a hung jury, but I think Casey’s continuous prevarication and her disinterest in the whereabouts of her missing child will not allow any panel of twelve to acquit her of the charges. Then, at last, there will be justice for little Caylee." (Diane's book, Mommy's Little Girl, was the first to be released and takes an in-depth look into this fascinating but tragic case.)

Dr. Michelle Golland: "Casey Anthony will be found guilty because she did it. I would like to see George Anthony reveal what I believe he knows about what happened to Caylee. He should clean his conscience, already. Cindy knows her daughter played a role in her granddaughter’s death, but due to her narcissism, will never expose herself." 

Donna Pendergast: “The jury will come back 'Guilty' on all counts but will not render the death penalty. The circumstantial evidence of guilt is overwhelming which will result in a conviction despite the fact that jurors will not want to believe that a young mother could do this to her child. The jury will mitigate their doubts by not rendering a death penalty verdict during the penalty phase. We are all in for some high drama; hang on to your seat.” 

Cathy Scott: “My prediction is that the jury throws the book at Casey with a guilty verdict. While it's a circumstantial case, that circumstantial evidence overwhelmingly points a finger directly at Casey, right down to the same duct tape on little Caylee's mouth that was found at the Anthony family's home, to the death odor discovered in the trunk of Casey's car. They're tough visions to shake.” 

Robin Sax: “The amount of evidence in this case is overwhelming, circumstantial or not. I mean, you don't get cases with as much 'stuff' as this one. But like most pretty girls, and since it gives the jury an out, I say no death penalty.” 

Anne Bremner: “I wouldn't want to be an attorney for the already damned. But I think there may be a creative defense about which we will hear in the first minute of the defense opening statement. Stay tuned. And fasten your seatbelts. It is going to be a bumpy, interesting and ultimately tragic--guilty verdict or not--ride.” 

Pat Brown: “Guilty, but I think they won’t give her the death penalty because of her psychological problems and all that 'physical and sex abuse' she suffered in her family. If nothing else, they will think they can’t blame her entirely for her viciousness because 'Cindy AKA The Devil made her do it.' ” 

Stacy Dittrich: “I’m giving it a 60/40 in favor of a guilty verdict. The 40 percent is reserved that 'one' juror who may or may not hold out for a myriad of reasons. It is always a possibility. Definitely no death penalty.”

What is your prediction? Let us know.

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Seeking Justice

by Katherine Scardino 

Anthony Graves is now 46 years old. He was sentenced in 1994 by a jury to die for committing capital murder in Texas and has been incarcerated since August 1992. In 2006, his conviction was overturned by the appellate court for prosecutorial misconduct. The misconduct was the state’s failure to tell the defense that the co-defendant had been trying to tell the prosecution for a long time that he lied on Anthony, saying that Anthony Graves had nothing to do with this case. The co-defendant was also tried by a jury and sentenced to death. In 2000, he was executed. While lying on the gurney, waiting for his lethal injection, he turned to the people watching this killing, and announced, again, that Anthony Graves had nothing to do with this crime. That is about as powerful a statement as you can get.

One week ago, I received a call from the prosecutor. She told me she was dismissing the case against my client, Anthony Graves. I lost my breath. It was an astonishing statement to hear in a case like this. Anthony’s defense team has been fighting for his innocence for years. I have been on this case only three years, and there have been other lawyers before me. My co-counsel, Jimmy Phillips, Jr., and each and every one of those dedicated, smart lawyers told me that we were representing an innocent man. And, I do not mean “technically” innocent, or “not proven,” or that the evidence was lost, stolen or somehow dissipated over the years. I mean really purely innocent. He did not commit this crime.

So, what happened to make a newly appointed, seasoned, tough prosecutor make such a pronouncement? Especially knowing that it would be one she would have to defend. It is very simple. She and her investigator actually investigated. One would assume that in 1992, when he was accused of this crime, there would have been an investigation. There was, but the investigation was skewed by unethical, dishonest law enforcement and prosecutors who heard what the co-defendant said and believed that the case was over. Nothing would stand in the way of finalizing a serious case in this small county--not even an alibi by the accused.

But, then, there was Anthony’s trial in 1994. Was there some investigation done in that year? No. How about in 2006 after the judges sitting on the Fifth Circuit Court of Appeals in New Orleans reversed this case for a totally new trial? One would think the powers that be in this particular county would do some re-thinking about their position. Sadly, it was not done then either.

Only now, with a jury trial looming in the not-so-distant future, did the prosecution think that perhaps a serious investigation needed to be done. This time it was--and it was done right. This prosecutor and her investigator talked to every person involved in this case. They turned over every stone and looked at every piece of paper. In the end, there was no other conclusion but that Anthony Graves was innocent.

I have been asking myself how I really feel about the awesome experience of seeing this man walk free in the sunshine, wearing a sports jacket and slacks, hugging his mother for the first time in 18 years. I think I am angry. I am angry because people were lazy and ignorant. Anthony is black, he was in a small community and it was 1992. I do not need to say anymore. No one cared. No one wanted to go out of their way to be absolutely certain that all the proper work had been done. And, it wasn’t.

Someone asked me last week, "Does this dismissal reinforce your belief in the criminal justice system?" My response was, “No, it scares the hell out of me.” If one mean-spirited prosecutor, who had the power to make life and death decisions, could do this to my client, he or someone like him could do it to your son or daughter, husband or wife. Then, we had our Governor make a statement like “this shows that our criminal justice system worked.” I tracked down the reporter who published that story and I told him that Gov. Rick Perry had to be joking. How could he say that the system worked, after an innocent person spent 18 years incarcerated for a crime he did not commit? Not to mention that 14 of those years were spent on death row, where Anthony lived in a box and was fed through a slit in the door, with one hour a day alone in an alley-like place where he was exposed to the sunshine.

But, enough about me and my feelings--what about Anthony Graves? How is he doing? Absolutely amazing! This man never gave up hope. He always believed that he would win his freedom one day; he just did not know when that day would come. He maintained his dignity and integrity throughout, which is obvious to anyone who has a conversation with him now. Anthony says he does not want to give those people any more of his energy. No bad feelings from Anthony. He wants to get on with what is ahead of him now during the last half of his life. They took away his best years. You know, those years where you get married, raise children, play baseball with your son. He missed all that. But, he is not angry. One reporter asked him, “What now? Are you going to sue the county? Are you going to try and get your compensation from the state?” Anthony said all he wanted to do was “seek justice.” Personally, I hope that this justice involves compensation from the state.

I think justice would be best served if the prosecutor who failed to investigate this case during his tenure, which caused Anthony’s conviction, would spend 18 years of his life in prison. I suppose I have all the anger that Anthony refuses to acknowledge. That is probably good. Anger at ignorant, arrogant people is a dead-end street. But, in this case, it will be a while before I can say that I am no longer furious at the people responsible for this travesty.

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Money and Murder

by Katherine Scardino

Did you know it costs more than $2 million, give or take a few hundred thousand, to prosecute a capital-murder defendant from the moment of arrest until the jury returns a verdict? That's without the continuing costs of a decade or so of appeals of every death sentence.

Killing a citizen for killing another citizen to prevent the killer from killing again is costly -- and frankly, embarrassing. Many studies find there is absolutely no evidence that executing the “worst of the worst” deters anyone from committing any kind of crime, especially murder. In 1995, a poll by Hart Research Associates found that the majority of police chiefs did not believe the death penalty significantly reduces the number of homicides. In fact, these police chiefs ranked it as the least effective way to reduce crime. The only thing Texas has gotten from all its many executions is a bad reputation and the distinction of killing more people than any other state in the United States, as well as some entire countries.

After 33 years of executions (since the U.S. Supreme Court allowed restoration of the death penalty in 1976), some states are looking at the bottom line: What are we getting in return for executing violent criminals? New Mexico recently backed away from capital punishment. The cost is too great for the return; worse, several prisoners have been exonerated, which can scare even the most steadfast death-penalty supporter. No one can stomach the execution of an innocent person.

Texas is currently in turmoil over the 2004 execution of Cameron Todd Willingham, who was convicted of setting a fire that killed his three young daughters in 1991. The evidence used to declare the fire arson in 1991 has been found flawed and unreliable by Texas' arson commission in 2009.

It appears that Texas did, in fact, execute a man for a crime he did not commit. Oops! My bad! What else can we say? Well, according to Gov. Rick Perry, right after he replaced three members of the arson commission, Cameron Todd Willingham (photo below) was a “bad man” who deserved to die, right? No, Gov. Perry, you are wrong. Whether Mr. Willingham was a “bad man” wasn't the point. The point is that Texas spent the money to have a jury trial, and presented bad, incompetent, allegedly “expert” evidence about arson -- and that this evidence led a jury to find Willingham guilty of capital murder and sentence him to death.

There are so many flaws in the U.S. capital-punishment system that it's hard to pick just one. It would be nice if capital punishment were eliminated in the United States so we could join the company of the rest of the world's civilized nations. But more likely, it will be because of money, money, money.

Let’s look briefly at the money issue. In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone in a single cell at the highest security level for 40 years -- and that's from a Dallas Morning News report back in 1992! Obviously, as of 2009, the cost is even higher. In California, the death-penalty system costs taxpayers $114 million each year, above and beyond the costs of keeping convicts locked up for life. (L.A. Times, March 6, 2005).

The cost of a capital crime -- a crime for which a person may be sentenced to death -- can be too much for some jurisdictions, such as Austin County, Texas. In August in a small, bucolic community halfway between Austin and Houston, four men, all relatives, were arrested, jailed and charged with capital murder in the death of a Houston doctor visiting his summer home there. Austin County hasn't had a capital-murder prosecution in 15 years. The cost of prosecuting these four men for capital murder will be prohibitive. Each of the four defendants is entitled to two defense lawyers, defense experts, and a multitude of other defense expenses.

So: What if smaller counties “Just Say No”? Their resources could be channeled into better schools, more police officers, solving old crimes, building new libraries, etc.

That would leave only the larger jurisdictions prosecuting capital cases. And how could that be acceptable? That would mean if someone committed a capital murder in Harris County, for example, they could be sentenced to death. If the same person committed the same crime in a small county, he wouldn't be charged with capital murder -- so punishment would be determined by where a crime was committed.

That is exactly what is happening in various counties across Texas, making the death penalty even more flawed and inequitable.

The cost of prosecuting a capital case is enormous. The return is small -- so small that all you get back is one executed person unable to commit any more crimes -- and a lot of invoices. Let’s ALL just say no.

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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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Is Rover Reliable?

by Katherine Scardino

I have recently been reviewing some material having to do with some evidence that the State of Texas wants to introduce in a death penalty trial scheduled to begin in October 2009. I am truly astounded that the prosecutors would even consider this evidence as appropriate for a case where a man can lose his life.

I have always heard of dogs sniffing cars, purses or other belongings of citizens to see if they are “holding” drugs. Dog scent evidence is pretty commonplace around the courthouses where I practice law. Lawyers are always trying to figure out a way to outsmart these drug-sniffing dogs who have been trained to find controlled substances - and they usually do. I once had a dog alert on me at the Houston international airport, because I had an apple in my purse that I had purchased in Mexico but “smuggled” into the United States.

My client was accused of capital murder in 1992. He was tried in 1994, and because of other circumstances that we do not need to discuss in this article, his case was overturned by the Fifth Circuit and remanded for a new trial in 2006. From 1994 until 2006, this man lived on Texas’ Death Row. Now, he is in the county jail where the offense occurred awaiting trial.

So, we are working on his case; things going along pretty normally. About a month or so ago, I received an email from the prosecutor advising me that he has obtained a search warrant from some magistrate (not the district court judge who will hear this case) to go to that county jail and obtain scent evidence from my client through swabs of certain areas of his body. That all sounds like it might be OK - except that the prosecutor plans on having a dog smell my client’s scent and then attempt to connect my client’s scent to the scent of this 1992 evidence that has been stored in cans in an abandoned jail since 1994. In case your math is about like mine - that is 15 years ago. So, the bottom line is this: can a dog small your scent and then sniff the 15 year old evidence and make a valid connection between your scent and the evidence? And, if one assumes that this is legitimate science and credible, then it is proof that the defendant is connected to the crime.

The defense team is obviously not going to take this lying down - right? So, we do some research. One of the interesting articles we found is from Florida and from the Orlando Sentinel newspaper today. The article discusses three men who spent twenty-something years in prison for crimes that DNA now proves they did not commit. Each of these three men was convicted by the prosecution using a German shepherd named “Harrass”. The articles indicates that the only way the owner of Harrass was discredited was by the judge testing the dog himself. Is that what it really takes? Does a judge have to step down off the bench, take the dog by its leash, and see if the dog actually alerts to a valid scent without his owner/trainer. Apparently, the dog did not alert to anything when the judge was testing him.

We have in our jurisdiction an owner/trainer of three dogs who are just as wrong as Harrass was in Florida. We have a situation where my client could be sentenced to death and part of the State’s case will rely on the dog sniffing lineup of 15 year old evidence. Do you think a dog can connect a scent to evidence that is this old?

What about the legal “reliability” of scientific evidence? Is it really scientific evidence - or is it just junk science? And, if it is just junk science, why are we using it to possibly execute a citizen?

But, the real problem has to do with the mindset of the prosecutors who are willing to use this evidence to convict a man of capital murder and possibly obtain a death sentence. Am I the only one who is scared to death about people in our world who would be willing to present this evidence to a jury and argue to this jury that the evidence is valid and reliable?

I need a judge who is willing to step off the bench and get his hands dirty - like the judge in Florida.....

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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?

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