Wednesday, March 26, 2008

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. B
ut, 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.


Kathryn Casey said...

Really interesting post, Katherine. The role of the defense attorney is misunderstood by many. When we're told there's evidence that someone has committed a horrible murder, it's easy to assume guilt. Talented defense attorneys are absolutely essential to ensure justice.

And, you're right; the death-row inmates cleared by DNA should give us all pause. How horrible that we have undoubtedly executed the innocent.

Unknown said...

Interesting post, certainly... However, I think you've simply sidestepped the original question. It was was "How do you represent people you KNOW are guilty?" Your response to that is to state that the client might be innocent - if you're feeling that way, then you don't KNOW that he's guilty.

What if someone murdered a stranger without justifiable provocation in a public place in front of a dozen reliable witnesses? How do you morally justify defending that person, when there simply isn't a way to say to yourself "well they might be innocent"?

Please note - said without a snarl or raised eyebrows or whatever... It's not an issue I've thought of before, I simply read this blog. ;)

Jan C said...

Over-zealous defense attorneys who manage to get their guilty clients set free are not any better than fanatical prosecutors who put innocent people in jail.

Anonymous said...

I can relate to your question, because I often ask myself that. I think the answer is that even though there were reliable witnesses during that particular crime, they don't know what lead up to the crime. For example: Maybe the accused just found out the person they killed molested their child. Maybe the victem has been bullying or threatening the accused. Maybe the accused is not in their right mind.
If any of those were the case and they didn't have a lawyer to represent them they would be prosecuted unjustly and probably given a harsher sentence for a crime that might have some justification.

In the case of true murderers, most often a jury will see through the lies and calculations of that person even with a lawyer representing them.

Pat Brown said...

I believe their is something inherently wrong with our justice system setup. It does not aim to find the truth. It is a contest between to sides and often neither side is as concerned about finding the truth, but winning. I agree with you though, Katherine, that we must have lawyers to defend the rights of all citizens. Two of the cases I profiled in the last twelve years ended up with defendents I did not believe were guilty. I was shocked when I heard they were arrested because both times the evidence did not point to them. I later found out, in both cases, there was absolutely no solid evidence to convict them and they were fall guys. Unfortunately, neither one got much of a defense. Because they were scum of the earth anyway, the jury was happy to have to imprisoned with nothing to actually convict them. The real killers are walking the streets.

So, I believe in a solid defense for innocent men and a prosecution that doesn't railroad without evidence. On the other hand, I believe if there is ample evidence that the defendant is guilty, then the defense lawyer should not be trying to hide information or distort it. If the guy is guilty, there is no defense he deserves. All that should be seen to is that the government do their job honorably.

I think we need some major changes to our justice system so that the adversary lessens and lawyers can simply work for the truth. I think then a lawyer could be comfortable being on either side of a case because all he is doing is seeking to present the truth and prevent an injustice from happening.

stan schneider said...

Many lawyers wrestle with the question "how does a lawyer represent someone that they know is guilty". Whenever I am asked that question - I respond by saying that everytime I step into a courtroom, I represent all of the people who live in the United States for I am defending the Constitution. It is the burden of the Government to prove guilt and for a lawyer to defend to the accused. When a lawyer accepts that responsibility to defend someone accused of a crime, guilt or innocence is not a concern. The lawyer is neither the judge nor a jury but the defender of the rights of the accused that are protected. We should embrace the constitution as a wonderful living document that protects us as we sit in our homes and walk down the street from the government.

The sleepless nights occur when a lawyer believes in the actual innocence of a client. I watched Katherine during the Durrett trial and I know how much of herself she put into that endeavor. The prosecutors in Burleson County do not know what they are getting into in the Graves case with Katherine defending Graves.


Anonymous said...

The subject of actual innocence is very frightening. It's the only reason I'll consider argument against the death penalty.

The conviction of an innocent person who is guilty of other crimes would kinda sorta gratify me-but it's unjust, and the real perpetrator is left free to offend.

But-as Brian mentions, the original subject was defending someone who probably guilty. My attitude goes back and forth.

Question for Pat Brown-were you or anyone else able to do anything for the two you think are probably innocent? Are there details on the cases available?

I've recently finished reading about Bloodsworth, the guys from Ada,and many others detailed by the Innocence project, the Centurions, and others. What a hellish mess!

Just talked to a former Oregon prison guard who says everyone's innocent in jail. She knows of one guy who was abducted for purpose of rape,probably murder. He was able to get the weapon away from his abductor, shot him five times, and so was sentenced based on not just shooting once. This seems questionable.

Anonymous said...

I heard about that story. They detailed it on 48 hours hard evidence. He was very young when he did it. I think I remember them saying that the man was also shot in the back. Then the boy went to a restaurant and used the money he took off of the "offender" and bought himself dinner. I was real torn about if I beleived him or not.