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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