Juan Martinez: A Prosecutor's Success

by Women In Crime Ink

As the jury determines in the next few days whether convicted killer Jodi Arias should serve life in prison or get the death penalty, we thought we'd take a look back at this sensational case and voice our opinions on what went right.

If you've followed the case, you know that after a four-month trial, 32-year-old Arias was convicted of killing ex-boyfriend Travis Alexander in his Phoenix townhouse. It was a particularly grizzly murder, with Arias stabbing Alexander 29 times, most of which were in the back, slitting his throat, and shooting him once in the head. Alexander, 30, didn't stand a chance.

While the final phase of the trial -- the sentencing -- winds down, this seems like the perfect time to take a look back and ask this question:

During the trial, what did Deputy District Attorney Juan Martinez do best to win a guilty verdict?

Here's what some of our WCI bloggers had to say:

Donna Pendergast: The facts in the Jodi Arias case speak for themselves. In terms of a prosecution case, it doesn't get much better than this. Her story of self defense was negated by the physical evidence, her false statements and her manipulative testimony, which came across as very calculated.

Jurors are not stupid and they don't like to be played like they are. Although we have seen a few high-profile cases in the news where the verdict seemingly was inconsistent with the evidence, in most circumstances jurors try to do the right thing. They saw right through Jodi Arias and delivered a verdict consistent with the overwhelming evidence. As a prosecutor, I think that Juan Martinez overdid the histrionics, but I can't quarrel with success.

Gina Simmons: Jurors had a chance to witness Jodi Arias lie frequently and with incredible detail over a long period of time. Psychopaths can create detailed pictures with their lies. These self-serving pictures can appear so convincing that jurors might find it hard to believe that they were completely created from imagination. Jurors got a close-up view of a pathological liar. Psychologically, this close-up view might make it difficult for some jurors to give her the death penalty. 

Robin Sax: If this case shows anything at all it's that the public (even post-OJ) has an insatiable appetite for a good crime story. This had it all: Sex, lies, photos, and a frighteningly smart narcissistic defendant. While Juan Martinez was certainly passionate, he did not make the same mistakes many high-profile prosecutors have made in the past, and that is he didn't drink his own Kool Aid. He spent the time proving each element, painting a picture, and presenting a strong case. Of course, Jodi helped with unbelievable lies, horrific evidence and narcissism that spoke volumes.

Katherine Scardino: As a defense attorney, I agree that this was a dream case for the prosecution. I would have handled her defense in a much more realistic manner. First of all, she would never have spent a minute on the stand much less 19 days. Bad lawyering for her. But seems like Guilty verdict is the right one.

Cathy Scott: The interesting thing in this case was how Martinez brought the pieces of the puzzle together for the jury in his closing. Some things he brought out didn't make sense during the trial, at least to me, until he laid it all out in the end. It was brilliant, and it worked.

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Murder in Montgomery County

by Katherine Scardino

Verna McClain is a 30 year old vocational nurse, who lived and worked in Montgomery County, located just north of Houston, Texas. She was engaged to be married and had been pregnant, until she suffered a miscarriage. Then, she set out on a search to "adopt" a baby.

Vera's mother told a Houston Chronicle reporter that she was shocked and in disbelief when she heard of the crime. Verna was not a violent person. A neighbor described her as a great mother, hard worker - even working 60 hours a week at times.

But life as Verna McClain knew it came crashing down last week when she was arrested and subsequently charged with capital murder in connection with the shooting death of Kala Golden (and the kidnapping of Kala's newborn son). This charge places her at risk for a death sentence, and the District Attorney handling her case will more likely than not seek the death penalty due to the extreme facts of this case.

Ms. Kala Golden Schugard gave birth to her baby boy, Keegan, three days prior to the incident. As Kala and Keegan left their pediatrician's office, Verna McClain was waiting for them - and she had a gun. Without much ado, Verna pulled her pistol and shot Kala several times in the chest. Kala fell to the pavement. Verna grabbed the baby, little 3 day old Keegan, out of the carriage and ran with the baby to her sister's Lexus and sped off - with Kala screaming "my baby, my baby!" Kala died there on the hot pavement, alone and the victim of one of the saddest crimes this area has seen for several years.

Verna did not care about Kala - she was on a mission. Apparently, she had been pregnant and had told her boyfriend that she had given birth to his baby. But, the first step occurred in this tragic sequence of events - Verna miscarried. Now, she needs a baby, so her mission began to locate a baby who could be pawned off to boyfriend as his own.

The facts of this tragic crime seem like those of many we have heard before. What makes this case weirdly different is that baby Keegan is white and Verna McClain is black. What in the world made her think she would be able to pass this little white baby as hers and her boyfriend's?

Enter stage right is her defense attorney. What could he say to the prosecutor to mitigate these facts and her confession at the time of her arrest? Two words - Andrea Yates ... remember her? She drowned her five children in the bathtub of their home (also just outside of Houston) back in 2001. Allegedly, unknown to her husband and family, she had been suffering from serious psychological issues that were coupled with a somewhat fanatical religious belief. During the trial jurors heard a lot of testimony both from the Defense and from the State, and from mental health experts. Her case was tried twice with the last one resulting in a verdict of insanity. Remember also that "insanity" means insane at the time of the offense.

Verna McClain's neighbors, friends, family and her fiancé all expressed shock that the woman they knew could possibly commit this murder and kidnapping. There is also the distraught family of this young mother, who are now faced with an incident no one could ever imagine, least of all expect. There is a tiny infant who will never know his biological mother.

We will have to wait for the end result of this case, but regardless of what it is, it will be bad for all concerned.

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Now and Then

by Katherine Scardino

As I enjoyed a holiday this past Monday in celebration of Martin Luther King and his accomplishments in promoting racial equality, I thought back over the years to the many changes that have occurred - just in my lifetime. I wrote about this recently during the MLK Memorial dedication ceremonies, so I will not repeat myself.

My question today is, if we were living back in the 1950's and 1960's (and of course a couple of hundred years prior to that..), would you be sympathetic to people who were being discriminated against solely because of the color of their skin, or would you just be “one of the crowd” and not do anything. In other words, do you think you would be an activist against racial discrimination? Or, would you be the kind of person who sticks their head in the sand and pretends the problems do not exist - similar to what the United States and other countries did during the time Hitler was exterminating millions of Jews in Germany. 

Would I have the nerve of Rosa Parks who, as a young black woman, refused to surrender her seat on a Montgomery, Alabama bus to a white person, which subsequently spurred a citywide boycott and helped launch nationwide efforts to end segregation of public facilities? Would I risk being arrested and prosecuted for my beliefs?

Today, we have many people around the world who are making their voices heard about many different subjects. People speak out about endangered species, Wall Street, treatment of animals, democracy - or the lack of it, along with a million other subjects. But, I wonder who these people are. I do not personally know anyone who is a true activist - not in the sense of Ms. Parks. But, I do know they are there and we should all be grateful for each and every one of them.

All of my life I have admired Rosa Parks. Let me tell you a little about her. She was born on February 4, 1913, in Tuskegee, Alabama. Her grandparents were former slaves and also strong advocates for racial equality. Young Rosa and her mother lived with her grandparents in Pine Level, Alabama. It has been said that Rosa’s grandfather stood in front of their house with a shotgun while Ku Klux Klan members marched down the street. The city of Pine Level had a new school building and bus transportation for white students while African American children walked to the one room schoolhouse, which was often lacking desks and adequate school supplies.

In 1932, Rosa married a barber named Raymond Parks who was an active member of the National Association for the Advancement of Colored People (NAACP). She became actively involved in civil rights issues by joining the Montgomery chapter of the NAACP in 1943, serving as the secretary to the president.

During the time she was living in Montgomery, the city enforced a city code that required all public transportation to be segregated and that bus drivers had the power of a police officer while in actual charge of any bus. Drivers were required to provide separate but equal accommodations for white and black passengers by assigning seats. This was done by a line that was drawn in the middle of the bus separating white passengers in the front of the bus and black passengers in the back of the bus. A black passenger got on the bus at the front, paid their fare, and then get off the bus and re-board at the back door. When the seats in the front were filled up and more white passengers got on, the bus driver would move back the sign separating black and white passengers and, if necessary, ask black passengers to give up their seat.

On December 1, 1955, after a long day at work at the Montgomery Fair department store, Rosa boarded her bus for home. She sat down in a seat in one of the first rows designated for black passengers. Though the city’s bus ordinance did give drivers the authority to assign seats, it did not specifically give them the authority to demand a passenger to give up a seat to anyone regardless of color. However, the local bus drivers had started the custom of forcing black passengers to give up their seats to white passengers when no other seats were available.

The bus driver walked back to the row where Rosa was sitting, and asked four black passengers to give up their seats. Three others complied. Rosa refused and remained seated. The story goes that the driver said to her “Why don’t you stand up?” Rosa replied, “I don’t think I should have to stand up.” The driver called the police and Rosa was arrested. She later stated that she did not refuse to stand up because she was physically tired, but because she was tired of giving in.

Rosa was arrested and later tried for violating a Montgomery city code. She was fined ten dollars plus a four dollar court fee. The boycott continued with an estimated 40,000 African Americans refusing to ride buses. Some commuters walked, even as far as 20 miles to get to work. Dozens of the public buses sat idle for months, severely crippling the transit company. But, the boycott was faced with strong resistance and some violence by segregationists. The homes of the local NAACP president and a new comer preacher named Martin Luther King, Jr. were attacked.

On December 5, 1955, the black community leaders met at the Mt. Zion Church to discuss strategies and during this meeting, determined that they needed a new organization and a strong leader. They formed the Montgomery Improvement Association (MIA) and elected Dr. Martin Luther King, Jr., the minister of the Dexter Avenue Baptist Church as their leader.

The rest is history. Rosa Parks started a new era of activism resulting in new laws, a new world. It is basically, inherently wrong to discriminate or prosecute one person because of the color of his skin. It is wrong for you or I to stay silent when our beliefs are violated, regardless of the subject. I hope that I would have one ounce of the courage of Rosa Parks and speak out, loudly, when any personal, constitutional right is violated. Will you join me?

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Self Mutilation - The New Foreplay

Katherine Scardino

Self mutilation has been around for a long time. Why? I certainly do not have that answer. Experts say that self harmers use violence to the self as a means of coping with intense emotional trauma, pain or distress. It is a deliberate act that can result in serious damage to the skin or underlying tissues, and possibly cause infection. Sometimes there is permanent scarring. It is not a “fad” or something that only young people do. It is more likely to affect young people, but self harm is being seen in any age group, even among the elderly. One in ten teenagers are self harmers, and most do not receive counseling or medical help. Your children, if not a self harmer himself, probably knows someone at school who does.

Self harm is almost always closely associated with a traumatic event of some kind. He or she may feel depressed, confused, angry, frustrated, fearful, guilty, and the list goes on. But, the self harmer feels there is no other sensible alternative (from his point of view) other than to do violence upon himself. One person who engaged in self cutting said that her feelings were so overwhelming that the physical pain of self injury forced her to focus on something other than those debilitating emotions. This practice has been around for a very long time - remember self flagellation by the bad guy in Tom Hanks’ movie “The DaVinci Code”. The ritual of self flagellation is practiced annually by the Shi’ite, using chains and swords, during Ashura where the Shi’ite sect mourn the martyrdom of Imam Hussein. The Hebrew Bible refers to the priests of Baal “cutting themselves with blades until blood flowed”. 

Self cutting is the most prevalent form of self mutilation, but burning, head banging, deliberate poisoning, self biting, hair pulling, picking wounds so they don’t heal are all manifestations of the self harmer. The signs of self injury are not always apparent because the act itself is so secretive. Sufferers will often cover themselves up - wearing long sleeves and pants, even in the warmest weather. If anyone sees the injury and inquires, the response is usually that it was an accident.

Self harm is listed in the DSM-IV-TR as a symptom of borderline personality disorder. Depression, anxiety disorders, substance abuse, schizophrenia and other personality disorders are also associated with self harmers. Self harm is also apparent in high-functioning individuals who have no underlying clinical diagnosis. These people could be the person sitting next to you on the bus or airplane.

Or - even here in Houston, Texas. Last week a jury heard a criminal trial involving two people who were a “couple”, with children in the house, I might add, who were engaging in burning as part of their sex play. The male partner, Gregory Longoria, Jr., was accused of burning the genitals and breasts of the female partner with a Bic cigarette lighter. The prosecution initially claimed that her nipples were melted and her vagina was melted shut. The charge was later lessened from Aggravated Assault with Serious Bodily Injury to Aggravated Assault with Bodily Injury. Apparently, the medical testimony did not substantiate the “serious” part of the bodily injury. 

Nevertheless, a jury found the Mr. Longoria guilty of Aggravated Assault and sentenced him to 30 years in prison. My friend and criminal defense lawyer for Mr. Longoria, Stan Schneider, told me that consent was the defense and that these two had engaged in other types of acts such as bondage and other sorts of specialized “equipment”, if you know what I mean. Mr. Schneider indicated that this type of self-harm had been ongoing.

I have had a case where the wife admitted to self burning as a form of teenage “angst”. It was described as “no big deal”, just a few of us girls getting together and doing it. But, the question most people do not, cannot, understand is “why?” As stated above, the reason is serious and one that needs immediate psychological attention.

So, in summary - it’s a bad thing. It is harmful to the body and a bit strange, but not new. Watch your children. 

photos: ChantelBeamPhotography, escalade328s,  ChrisGoldNY

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Some Reflections on Segregation

by Katherine Scardino

I have told you before that I grew up in a small farming community in the Piney Woods of East Texas. I was up there last weekend and on Sunday I drove the three hours back to the big city listening to the radio. I tuned to CNN on my radio and learned that the Martin Luther King National Memorial dedication ceremonies were ongoing in Washington, D. C. I was a young girl during the 50's and 60's and like most young girls, I was caught up in myself and not much aware of what was going on in the world around me. Only as an adult have I thought about that period of time.

I can remember going to the movie theater in my hometown and noticing that the black boys and girls had to sit in the balcony. I remember watching them walk up the stairs as I sauntered to my cushy seat close to the screen. I remember watching them go to the water fountain marked "Black" while I used the water fountain marked "White." As a girl, I never thought twice about the meaning of all that.

As I was listening to the music and the speeches of men and women who spoke at the dedication ceremony that day, I started reflecting upon that period of time for me. I can honestly state that I never once went to any school with an African American child. Further, I can state that I cannot recall ever having known any African American child or adult during my years in this community. I was an adult before I ever had a black friend or realized the enormity of the Civil Rights movement. I wish I had known Rosa Parks. Ms. Parks is the black lady who refused to sit in the back of the bus, and was subsequently arrested. I am not sure what the crime was, but she was taken to jail because she refused to obey the bus driver and proceed to the back of the bus with all the other black men, women and children, as all the white people, you know, sit in the front of the bus. I know that I would have loved her.

Martin Luther King must have been a courageous man. He was considered not only a a peacemaker (since he won the Nobel Peace Prize) but also an agitator. Without him and other people like him, the Civil Rights movement would not have happened as it did. I believe it would have happened, because no group of people in America can be subordinated as that race was and continue without an uprising. (Remember the Revolutionary War and the Civil War?) But, the message of Martin Luther King was agitate. Speak out for your rights as an American citizen, but do it without violence.

How brave these people had to be to speak out. Mr. King was called every name imaginable; he was stabbed, had rocks thrown at him, his house was bombed, and then, finally James Earl Ray happened along and put a bullet or two in him. But, during this period of uprising and demand for equality, Mr. King never wavered. He never said OK, let's stop now. We can live with what we have. After all, the Supreme Court decided Brown v. Board of Education and directed that education in America must be equal. But, I can attest to the fact that during my early school years, that was not the case. And, in my business as an attorney now, from what I can tell, that is still not the case. Our children are not educated equally. We have a long way to go.

It was interesting to me that I even began to listen intently to the MLK dedication ceremonies after my weekend in east Texas. Because, this weekend, I heard the word "nigger" for the first time in years. It was embarrassing and startling to hear someone I know use that term. Of course, as someone who has never learned to hold the tongue and be silent, I did speak out and made it clear that while I cannot demand that she never use that word again, I can demand that it not be used in my presence.

As I drove down the highway, listening to the radio last Sunday, I think I learned something. I learned that every aspect of our childhood does not have to follow you into adulthood. We can learn better ways to do things and better ways to think about our society. We can learn that because of courageous people like Mr. King and Ms. Parks and many others, the African American society in the United States of America can overcome hatred, racism and ignorance. And, we can learn - and remember - what those brave men and women did in the mid-1700's who produced this document called the Constitution of the United States of America that states "all men are created equal" and it is imperative that we uphold that document. It takes time to change, as Mr. King knew, and as our first black president is learning now. We can hope, but change takes longer. We are still changing, but this time around, let's all hope that it is for the good of our country and benefits all of us. What benefits one segment of our society will ultimately benefit all of us.

photo credits (flickr.com): Trevor.Huxham; caboindex; Elvert Barnes; Elvert Barnes 2

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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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It Really Was Weiner’s Weiner

by Katherine Scardino

In May I wrote about the seemingly overload of male "pigs” - defined as men who had too much power and not enough common sense. I asked you at the end of that post in Women in Crime to “stay tuned. I’m sure there’s more!” And, sure enough, along comes this weirdo Congressman from New York, Anthony Weiner. I admit that I did look at the tweeted photo of his covered weiner and was totally unimpressed. But, what makes Mr. Weiner interesting to me now is that he was sexting, which I also wrote about last February, asking how did we, as a nation, get to the point that having sex via satellite was, well, sexy?

Early on, when the scandal first became news for almost all breathing Americans over the last several weeks, I felt that he should stick it out (no pun intended...) and keep his job. He was elected to Congress by the citizens of New York, and I did not see that anything he had done was really any of my business - taking into account that sexting has become somewhat routine for a large portion of the population of the United States. I believed that if the citizens of New York wanted him out of office, they should do so by their vote.

Then, things got a little more serious. As I understand there were several tweets to various women that were more than a little suggestive. I have not read them, but I would love to read the words and form my own judgment as to whether they are truly offensive to the general public, and really, whether the general public has any business reading them or, for that matter, looking at any private photograph that he has tweeted to “friends." Do these stupid, irresponsible, personal acts interfere with his job? Did we all think the tweets were so offensive because he is a married man? And, married less than a year to a very beautiful, successful woman. Does that fact change anything for us?

I noted that his wife was not “standing by her man” in any of his comments to the press, and especially during Mr. Weiner’s press conference when he officially resigned his position. I read in an article recently that women today are not like the women of ten years ago or longer. Women no longer feel the need to suffer embarrassment and ridicule just because they are the “loyal wife.” Strong, successful women today look at these men and can actually make individual judgments about the stupidity of their husbands and decide they do not wish to play the game. I give you Maria Schriver Schwarzenegger as a perfect example. Granted, her husband, the Governator, committed acts that were a bit more serious than Mr. Weiner and his weiner. But, nevertheless, she did not even make an attempt at excusing him or standing with him at any public announcement. I, personally, commend these women. Sometimes, spouses do such irresponsible, illogical and basically dumb things that it overcomes any thought of loyalty.

But, I want to talk a little more about sexting. Would someone out there please tell me why sexting is a happening thing now and especially why is it occurring among our young people? Can they not find a bed? Or the back seat of a car, as I recall... (no more about that!) But, at least my transgression with a high school football star was in person and not via satellite. Is it because the younger generation has grown up with social media: emails, text messaging, IM’s, Facebook, Twitter and now Skype, and that all emotions in any kind of relationship are relayed via these non-personal methods? Is there anyone out there who still believes that a personal conversation is better when  it is actually personal? That sex is really better when it is done in a prone position of some kind on some sort of flat surface - and in the privacy of someone’s home, car, kitchen, back yard, pool, hot tub, floor, etc...

If we are all involved in the computer relationships, how much do you learn about being social and about interacting in society with another student, teacher, parent, employer? Can these kids even talk? I know a young man, now age 25, who grew up in his room in front of a computer. And no, it is not one of my sons! For years, he could not speak in person except for an occasional grunt. We had to learn which sound was a positive sound and which was a negative sound. Over the last few years, he has matured and gotten a little better, but it is still definitely troublesome for him to speak aloud to another human.

But, back to Anthony Weiner. For people in public office, I would imagine that satellite communications of all kinds are a godsend to politicians. Think how many people they can reach via email and other methods of communication - all without leaving their desk. The idea of sending a photograph of a private part was not envisioned by the creators of these new methods of communication, but it became too easy.

So now, ex-Congressman Weiner, you have lost your job and perhaps your pregnant wife as well. But, why was he railed on so hard? Dare I even mention John Kennedy? He had sex with any person with the appropriate equipment, and some even in the White House, his home where Jackie and the children also lived. No one said anything about any of that activity until after his death. Or, Franklin Roosevelt, whose true love was not really Eleanor, but instead her one time social secretary Lucy Mercer, with whom he carried on a 30 plus year affair. The list goes on and on: Bill Clinton, John Edwards, Rudy Giuliani, Newt Gengrich, Eliot Spitzer.  And, I have not heard any news reports for weeks now about Arnold Schwarzenegger. And, who - or where - is Mark Sanford these days? So, why the big deal about Anthony Weiner? What do you think?

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The Defense Takes the Floor

by Kathryn Casey

In our ongoing series of WCI interviews, we last talked with Donna Pendergast about the ins and outs of being a prosecutor. Today, the tables have turned, and the defense takes over the courtroom, or, perhaps I should have said, our blog. WCI contributor, renown defense attorney Katherine Scardino has agreed to answer our queries. It's always been my view that there are a lot of people who misunderstand the role of a defense attorney and, perhaps, underestimate or even dismiss all they do for our system of justice. So this is our turn to hear from an insider what it's like sitting in the courtroom next to a client on trial for murder, knowing that if you lose, that person may die.

KC: Why did you become a criminal defense lawyer?

KS: I was so excited to finally get my college degree (in 1979) at a “more mature” age than most college graduates, that frankly, I wanted to go further. I was aware that I could not do much with a degree in political science. My husband at the time was a defense lawyer, and I had gone to court to watch him in trial. Not only was I influenced by Robert, but there was also a female lawyer named Jan Fox, who I idolized at the time. She was a lawyer representing a co-defendant in a federal case my husband tried, and I went to federal court to watch some of the proceedings. I saw her as well organized (more so than the male lawyers), well spoken, smart--and a female yet! So, she became my “goal,” so to speak. I wanted to help people--which is the standard answer to this question--but I also wanted to be a woman doing a job well that had generally been done by men.

KC: What do you think is the most common misconception about your profession?

KS: I think the most common misconception about what I do for a living is the idea that defense lawyers are doing something immoral by representing guilty people. People feel that those who are charged with heinous crimes--murder, robbery or, even worse, crimes against children of any type--should not have due process. These people, it is felt by most, do not deserve any consideration. Just find them guilty and put them in prison and what does it matter that they are not afforded the generally accepted ideals of constitutional rights.

KC: Do you think most people really understand the importance of a criminal defense attorney’s role in our justice system?

KS: Some people do, but most do not. The perception that criminal defense attorneys are protecting “your” rights as well as the rights of the defendant is just not something citizens grasp until I tell them in voir dire (jury selection).

KC: If people would look at you today, polished, a highly educated and successful woman, would they understand, do you think, the poverty you came from?

KS: No, I do not think it would be something that would come to mind today. I do not discuss it, nor is it a subject that anyone else asks about. There have been articles about me that have discussed those environmental issues while I was growing up, but most people do not think about that. A person hiring me only wants to know what I can do for them. Remember, these are people who are in crisis. They do not care about me or my background--only if I am able to help them get out of this crisis situation.

KC: I know that you’ve said that you were a victim of sexual abuse as a child. That seems like something more likely to make one a prosecutor than a defense attorney. Does it impact the way you see those charged with similar crimes? How about the way you see victims? In what way?

KS: Oddly enough, I never remembered anything about being sexually abused as a child until I was about 40 years old and already a lawyer. I remember the day. I was at home in the early morning hours watching the Today Show, and the subject was child sexual abuse. The guest was a mental health expert talking about how such abuse affects the victims.

I felt like someone had punched me in the abdomen. It hit me like a ton of bricks. That was me! I had repressed all those bad memories as a child, but then I remembered everything and it was amazing. I began to cry, then stopped and wondered if wallowing around in self-pity was what I really wanted to do. From that point forward, I have believed that people who have suffered some kind of abuse or injustice during their formative years can do one of two things - they can wallow around in self pity and play the victim game or set it aside and rise above it. No one wants to hear anyone else complaining about something that happened 20, 30 or 40 years before. It just should not be relevant. That is not to say that the abused person does not have feelings about what happened, but people must deal with it in their own way without being a “whiner” in other’s eyes. Most unattractive.

Those are my thoughts about the abuse itself and how I chose to handle it. You ask whether, based on what happened to me, I should have been a prosecutor. I think under other circumstances, I might have been. But, I was married to a criminal defense attorney (since age 26), so my leaning was toward criminal defense.

Does my experience impact on the way I handle child abuse cases now? In a word, no. I understand fully that my job is not to make moral decisions. I represent people who wish to hire me to help them in the most critical times of their lives. The victims of child abuse are not victims until a jury says so. And, regardless of general opinion, there have been many cases of false allegations. So, both the state prosecution and the defense attorney should take a cold, hard look at the evidence and accusations in each case.


KC: What is the most important quality for a criminal defense attorney?

KS: Unlike most other attorneys, I feel that the most important quality for me is my passion for the case. I have been criticized that I take each case personally, and that is certainly true. If I feel that a person has been wrongly charged, I will not rest until I have done everything possible to prove his innocence or to get the case dismissed by the prosecution. If I feel that the police or some other agency has committed unconstitutional acts against my client, I will fight for the suppression of that evidence. For example, if the police coerced a defendant to make a statement; if there is evidence of the state withholding exculpatory evidence, then that is fodder for my passion against injustice. I cannot understand how a lawyer can represent another individual without knowing everything about that person so that he can feel how that person felt under certain circumstances and, most importantly, get that feeling across to the jury.

KC: I’ve had some attorneys tell me that they never ask if their client is guilty. They don’t want to know. Others that they have to know to mount a defense, with today’s forensic evidence. Do you ask? Why or why not?

KS: I think defense lawyers say they don’t need to know because that sounded good years ago. However, you are correct - in today’s world with DNA and other forensic sciences, the defense lawyer has to know what to expect in a trial--and how to rebut it. If there is a possibility of DNA on the victim’s clothes, then the lawyer must know how and why.

KC: If you have a client who is obviously guilty, who has committed a horrendous act, does it change the way you view your role? Does it change the way you try the case?

KS: Of course it does. If the evidence is strong against my client, then I have to either find a way to explain the evidence to convince a jury that the evidence does not rise to the level of “beyond a reasonable doubt," the standard in Texas in a criminal case, or considering whether to attempt to work out a plea bargain with the state. If that becomes impossible, then it may be that the only chance my client has of a lesser sentence (sometimes other than death or life without parole) is in the punishment hearing, where the defense lawyer can present evidence to the jury regarding a client’s background, mental health or medical history, etc. - called “mitigation.”

KC: You won the first acquittal in a capital murder case in Harris County in over 20 years, with the Joe Durrett case. This in a county that at the time had what some called a “death machine.” How do you view the death penalty? I’ve read that you once believed in it but that you aren’t so sure any longer. Is that true? What do you see as alternatives?

KS: Years ago, I did believe that sometimes a person did something so heinous that I could personally pull the switch on the electric chair, or in today’s environment, inject the lethal concoction to stop his or her heartbeat. Those people just did not deserve to live in our world where the rest of us followed the law, worked and provided for our families, had a belief and moral system that made up a structured world where we all could live together.

But, over the years and after handling around 45 capital murder cases, I have come to the conclusion that while the death penalty may be appropriate in some cases, my state, Texas, should not have a death penalty under the current system. It just is not administered fairly. We have 254 counties in the State of Texas and 254 different systems of whether a prosecutor decides to seek the death penalty.

For example, a person could kill someone in Harris County (Houston) and be charged with capital murder. If he commits the same crime in one of the other 253 counties, that same person may--or may not--be charged with capital murder. The decision rests solely with the district attorney in that particular county - and money. Can the county afford to pay for a capital murder trial? They have to pay for defense lawyers, experts, prosecutors, judge, court reporter and a myriad of other costs associated with trials. In some cases, a capital murder trial can cost around $1 million. Some smaller counties simply cannot afford it. Is that fair?

KC: The Durrett case was an amazing accomplishment. I wonder if you got the attention from it that you would have had had you been a man? Sometimes, it seems, women’s victories are diminished. Did this happen in this case?

KS: Only a woman would ask this question. The answer is a resounding “yes.” The Durrett case was tried in 1997, and as a member of the Texas Criminal Defense Lawyers Association, an association that recognizes outstanding accomplishments by its members, I felt that they would do something. In 1998, Mike Ramsey, another defense lawyer in Houston, won an acquittal in the Robert Angleton case here in Houston. Angleton was accused of hiring his brother to kill his wife in his River Oaks home, the wealthiest neighborhood in Houston. TCDLA, awarded Mike Ramsey “Lawyer of the Year”--and to top it off, he accepted the award as having had the “first acquittal in a death capital in Texas in 25 years.” I sat in the audience amazed that no one said anything to correct this - or maybe no one cared. Unfortunately, I still believe that women today do not get the same recognition - or pay - that men get for the same job. For me, the glass ceiling is not broken.

KC: Most of those who follow the headlines would agree that it’s obvious there are innocent men and women in our prisons. A year or more ago, you and I were out together, and you told me about a case of yours, Anthony Graves (photo right), who’d been convicted of participating in the horrific murders of an entire family. On Texas’ death row, Graves won an appeal, and you were going to represent him in a new trial, one that could either result in his freedom or his execution. That night you told me repeatedly that you knew your client was innocent. What’s it like when you believe your client is unfairly charged and his very life is in your hands?

KS: It is an awesome responsibility. The closer to a capital trial, the less sleep I get. I keep asking myself if I have done everything I should have done; what else can I do? Am I really ready to go to trial? Maybe we should get a reset again? It goes back to that passion I mentioned earlier in another question. By the trial day, I am truly a basket case--but after 26-plus years, I now realize that once the jury is seated, and I actually start, everything smooths out and I go to work. There is no more time for the luxury of being nervous. And, I have convinced myself that when I speak to the jury, I am actually just talking to people. They are just people who have their own life’s experiences, just like all of us do. So, I have to ferret out what those experiences are that might impact how they would look at my client and the facts of this specific case.


But, you mentioned Anthony Graves. I was convinced early that Anthony Graves was an innocent man. It really did not take much. All it required was a thorough, competent investigation of the case. My team had a wonderful investigator who could answer all questions. We all were convinced he was innocent. But, that conviction within each of us was a torment. How to convince the prosecutors to dismiss? It did not take long for us to realize that was not going to happen. Or how to convince a jury to find a death row inmate innocent of a crime that occurred 18 years ago? If we had a trial, it would have been an enormous hill to climb, and frankly, I am not sure the jury would have found him not guilty.

Remember, “not guilty” simply means “not proven” beyond a reasonable doubt, but it would have been difficult for any jury to let him go. After all, six people were brutally murdered. But there was NO evidence Anthony Graves had anything at all to do with the crime, plus the prosecutor in his trial withheld evidence and intimidated witnesses not to testify on his behalf. Combined it seems that it should have been enough to convince even the most hardened prosecutor in Texas that he was actually innocent, which it eventually did.

KC: After 18 years behind bars, this past October Graves was set free. Due to your hard work, that of the rest of his defense team, and the conviction of a former WCI contributor, prosecutor Kelly Siegler, who looked at the case as she prepared it for trial, and came to the same conclusion you had, that Graves was an innocent man. As you've said above, there was, in fact, never any evidence connecting Graves to the crime. What should be done with prosecutors who ignored the truth or manufactured evidence where there isn’t any?

KS: This question is easy. Prosecutors take an oath to see that justice is done. They do not swear to get a conviction in every case. I believe that when prosecutors sway off course, away from their oath of office, they should be prosecuted - just as a defense lawyer would be if that defense lawyer committed intentional illegal acts to see that a person was freed. The State Bar of Texas refused to accept a complaint against the prosecutor who did all those things to Anthony Graves in 1992 through 1994. Charles Sebesta probably thinks he is home free with the absolute immunity that he has now. But, he does not understand the tenacity of the lawyers representing Anthony Graves. That will be something to watch in the future.

KC: Admittedly, many of those who commit crimes have endured difficult lives, often of poverty, and sometimes terrible abuse. How do you think this should be considered in a trial? At what point does it become relevant?

KS: Our law provides that only in the punishment hearing does evidence of a defendant’s background, mental health, abuse, etc. become relevant. Defense lawyers are required, according to the U.S. Supreme Court, to competently and thoroughly investigate the client’s background and to produce mitigation evidence. If we do not do that, we may be found to have provided ineffective assistance of counsel. Mitigation evidence can mean the difference between death and life without parole.

KC: In the Calvin McGee case, you had a client who’d clearly committed a horrendous murder, shooting a woman through the head as she sat in her car. McGee was convicted, and in sentencing his life was on the line. You addressed the jury, explaining that your client had suffered emotional, physical, and sexual abuse while growing up in abject poverty. At one point you asked, “How can you expect someone to crawl out of that environment?” Despite your pleading for his life, McGee was sentenced to death. What do you think that says about our society?

KS: This was my first death sentence, and I was very upset about this verdict. I had spent enough time with Calvin to know exactly what happened in the incident. I knew his family; I had been to their home. It was hard to hear those words after a heartfelt plea for him to be able to live in a box in a Texas prison for the rest of his life. What would it have hurt to let him live? It would have been cheaper on the taxpayers for him to live. What is wrong with having this person be alive, living in a 10-foot by 10-foot space, with a slot in the door where a guard pushes a tin plate through it during your three meals a day. And, there is no human contact. There have been many articles written about the results of having no human contact. It does not take long for a person to decompensate to the point of being mentally ill after a total withdrawal of all contact with other people. Do jurors think they would be doing him a favor by letting him live like that? I have never understood the need to kill. We kill people who kill people. Amazing!

KC: Katherine, should we routinely consider childhood abuse and poverty when assessing punishment for crimes, especially murder? Don’t many people go through similar experiences and live good lives? In fact, haven’t you done what you said McGee couldn’t be expected to do?

KS: Yes, we must routinely consider all the client’s experiences when the jury considers the appropriate punishment. How else can you do it if you do not know this person? Every person - every crime - is different. There is no set punishment for murder, robbery - there is a range of punishment - and the proper number of years in prison, or a probation possibly, depends on the specific person. So, the jury must consider every angle of a person’s life. It has been my experience that most, not all, but most juries try very hard not to hand out a death sentence, especially in today’s world after so many people have been found to be innocent after spending years and years in prison.

You asked why I am not a criminal after having experienced some of the same - I was a white girl growing up in the '50s and '60s. I was sent to school and believe it or not, some of that schooling and my father’s Church of Christ teaching must have sunk in. Most of these young black men, and yes, most are young black males, do not have even what I had. Every person is different and responds differently to the same circumstances.

KC: If someone is charged with a crime, what’s the first thing you’d advise them to do? What do most people do wrong?

KS: This is a good question. The first thing I tell all my clients is to shut up. Many defendants are convicted because they gave a confession. And yes, it is their constitutional right not to say anything. Why help the prosecution convict them? Would you want your son to immediately tell the police if he committed a crime, or would you prefer to hire some criminal defense lawyer to defend him - which can be done a lot easier without a confession. The police are not your friends when you are arrested. They want you to think they are, but they are not.

KC: Is there one thing you’d like WCI to understand about the justice system? What is it?

KS: I have noticed that many of our contributors are people who are attempting to gather evidence to convict the accused. I understand that it is hard for people in those fields to remember that all citizens of the United States have certain rights that are afforded them under our wonderful Constitution. Those rights should not be violated, under any circumstances. And, we all must fight to protect those rights, even for the most guilty.

It is easy to forget those rights until it is our son or daughter, husband or wife, who finds him/herself caught up in the criminal justice system. Then, we scream for a defense lawyer and for our rights. You know, as I do, that our criminal justice system is flawed and that it may be your son, daughter, husband or wife who is accused, found guilty when actually innocent and sentenced to a term in prison. So, I want everyone to remember to be careful. Be careful when you are judging another person that you have an open mind, that you do not pre-judge unfairly.

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Desperation: The Story of an Abused Woman

by Katherine Scardino

I have a client who is accused of murder -- the murder of her husband. She is one of those women who really has no defense. She has been beaten, abused, insulted, threatened, and generally derided to the point of having no backbone. She is a woman who has no self confidence, no belief that her life is worth a copper penny. She believed that her husband had all the control. There is no “but” after that statement; it is absolute and final.

One day he went too far. He called her names. He threatened her with death. He called her a “f---ing b---h” and said that he was going to kill her. He said it over and over ... yelling in her face, holding a gun in his hand. Unfortunately for this abusive, overbearing man, this woman now had a gun of her own. She shot him, not just once, but twice.

Shooting two times is a bit more troubling for a defense lawyer than just one time. Why is there a need to shoot two times? Maybe she shot two times to be absolutely sure that she would never have to endure this overbearing, arrogant piece-of-crap husband again -- ever! And because of this second shot, she won’t. He is now dead.

If a prosecutor said, "So, show me the evidence that all this abuse happened," how would this woman do that? There was no other person around, just herself and her husband. No one else. Who would believe her? His family thought he was a wonderful man, a wonderful husband. She knew differently. But she never told anyone because she felt no one would believe her.

What does this woman do now? She is charged with murdering her husband. She could go to prison for the rest of her life, or a major part of it. She certainly would be an old woman when she was eventually released.

She gets an attorney -- either hired or appointed. If she has to have an appointed lawyer, she has to pray with all her heart that he or she is an attorney who will find some sympathy for her life story. She prays that this lawyer will understand her story, stand by her and take up for her.

I am relating this to you because this is where I enter the story. I was appointed to represent this woman. She has never been involved in the criminal justice system before, ever in her life. She was married to this man for several years, and each year was worse than the year before.

I came into the story after the husband was dead. How am I to defend this woman? She is a worker, a person who has always had a job -- and not just any job, but a job that requires hard labor. She does that for a living. Her hands are rough and calloused. Her face is weathered and beginning to get some early wrinkles. She is thin, and when she has to dress for court, either in a skirt or a dress with some sort of heels, she looks out of place and obviously uncomfortable ... as if she would feel better in a pair of Levi's, work boots and gloves. I sense that, and I almost wish that it would be acceptable for her to show up in court in her usual, comfortable attire. Would the jury have more empathy, or identify more closely with her? I cannot help but feel that they would. But for now, it is better that she conform with society. Let’s not rock the boat.

Trial has not yet started. I am trying to put her in a position of power, or at least at a place where she can give me an opinion about what she wants out of this trial. Does she want me to work out a plea? (I am hoping she does not want that option.) It is difficult for her to make a decision about her own well-being since she has had no position of power in all of her married years.

I want her to help me with her defense in this case. It is hard to talk to her because she speaks in a whisper. Her voice is almost nonexistent. How did that happen? How can another human being get to the point where she has no voice, no power, no idea that her feelings can have any impact on anyone, especially on anyone in any authority.

Women like this one have been used and abused all their lives. Often, they have been sexually or physically abused during childhood and early adolescence. No one has ever asked their opinion about anything. They have never been of any value to anyone.

You, who are reading this are probably thinking, “Well, this is just impossible. There are no women today who are really like that.” I beg to differ with you. Yes, there are many women like the one I just described. They are good people. They may have been raised in a good family, with good parents and had a normal family life. But, somewhere along the road to adulthood, they ran into a man who was not normal. Is there a gene in these women's makeup that allows them to fall under the control of this man? I do not have a background in this field to tell you the answer. I can only say that it happens and it is scary to know that women like this are floundering - there is not much hope for them because they do not know how to fix the problem. Many of them do not even know they have a problem.

So, what will happen to my client? She could possibly spend most of the rest of her life in prison. We are awaiting trial right now. I am hoping that the trial will end with a not guilty verdict. But, I cannot guarantee that verdict to her. I can only assure her that I will work very hard in her defense. For now, this woman has some hope -- enough for her to hang on to and believe that her lawyer is working for her. What else does she have?

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