General Feelings about the Death Penalty and Emotions
Criticism of the Death Penalty System in Texas
Questions Asked About Defending the Guilty
Fighting the System from Within the System
Recent Changes in the System and the Near Future
Rick Perry on Anthony Graves
Anger at Wrongful Convictions
The Difference Between Anthony Graves's case and DNA Exonerations
Joe Durrett's Not Guilty Verdict
The Rarity of Not Guilty Verdicts
Recognition and Being a Woman Lawyer
Getting Called "Queen of the Good Old Boys" and the Response
The Emotional Toll of Capital Trial Work
Developing Credibility with the Jury
An Example of Using Mitigation and Developing Sympathy
Individual Jury Selection in Capital Cases
Video 2 of TAVP Interview with Ms. Katherine Scardino
Gov. Rick Perry
AMBROSINI-BACON: Fifth, my God, 2011, myself Kimberly Ambrosini-Bacon is doing the interview. We're here with Ms. Katherine Scardino and Justine Rife is
doing the videography.
So to begin would you mind, Katherine, just telling us about your background and a little bit about yourself?
MS. KATHERINE SCARDINO: My name is Katherine Scardino. I have been an attorney since 1984. I was born in East Texas to very poor people. My father was a
tomato farmer and I think actually he was sixty when I was born, so I always grew up with a grandfatherly type.
And my mother worked at a hospital in Jacksonville, Texas. So I was born in a small town in East Texas with my father being a farmer, so we were very, very
And the question is how did you get to be a lawyer and it's a long road but I got married to a little, football sweetheart, high school sweetheart. He was a
football star in Jacksonville and I was the cheerleader.
We ran off and got married and had a baby and all of that. Of course my two children are now grown, so that was a very long time ago. Then I married a man
who was in law school and finished putting him through law school and we were married for like twenty-one years and divorced and during that period of time I realized that I really liked what
he did for a living.
I mean he was a criminal defense lawyer and I noticed that he didn't really seem to have to work very hard. He played golf a lot and had time for his
friends, and so I thought that's what I want to do, but the problem was I only had a high school education, so I had a long road to go.
So when I was thirty-one I started college and law school, so all my thirties was in school, and finally I was licensed to practice law in my late
And so I've been doing it ever since, and I've only worked for myself. I've never worked for anybody. I've been a sole practitioner this entire time.
And I started out here in Houston taking juvenile and criminal court appointments. Back in the time, in the early eighties when lawyers could actually do
that, when they immediately finished law school, you could take your first appointment. They can't do that now, which, since I have a son who graduated from law school a couple of years ago, or
got licensed a couple of years ago,
it's hard for me to see these young students who are not students, but who are actually young lawyers, not be able to have business because they can't take
court appointments like we did back then.
And so I worked real hard. I started getting a lot of appointments and started taking felony appointments almost immediately which was good or bad or
whatever. I'd like to think that I didn't cause too much damage to the clients that I had back in the early eighties but— and I did, I was appointed to my first capital case only two or three
years after graduating from law school, which is kind of scary if you think about it today, in today's world.
But when I started the business of representing capital defendants, the courts here in Houston would not— it was hardly any money allowed for experts. And I
remember specifically one time asking for more money than seven hundred and fifty dollars for an investigator
and getting a lot of flack from the judge because that was all that was ever given for an investigator back then, and of course now it's a lot different.
Compliments of the Supreme Court, we now have the requirement that we do all this investigation, looking into your client's background and making sure that you don't miss something, which is
one of the— it's still even after all this time, the thing that bothers me the most about representing defendants who are charged with capital murder,
because you're just so concerned that I'm gonna forget something, or I'm gonna miss something, or I'm not gonna catch an issue or I'm not gonna to be
prepared for something that comes up, or the D.A. knows something that I don't know. I mean how horrible that would be.
So it's still, even after forty something capital murder cases, and trying to a jury about fourteen of those, it still concerns me that I might do something
wrong that would create a real problem.
And I went a long time and didn't have any death penalties to my credit, or discredit perhaps, but the first one I got was very unnerving.
I did not like hearing that and I did not think he deserved it because of his background and the kind of person that I had learned that he was over the
period of time that I had represented him. But he did a terrible thing, although I really don't think he meant for the end result to occur, but this was a man who was behind a Cadillac in a
line at a—
it was like a Kentucky Fried Chicken here in Houston, and this woman was a professor at T.S.U., and she had stopped to get some chicken and whatever for her
family for dinner and she was sitting in her Cadillac and he gets out of the car and puts a gun in her face and she jumps out of the car,
which she probably never should have done, but she jumped out of the car and screamed really loud and it startled him and the gun went off and he shot her
and he killed her. Horrible, horrible thing, but I truly don't believe that he meant to do it, but that was— the jury gave him death.
She was a very fine individual and well thought-of in the community, so I think that had a lot to do with it. And I've often wondered, what else could I
But subsequently to this conviction and his sentence of death, he had a heart attack while he was on Death Row and passed away. So he is no longer there on
Death Row, and I only have one other one.
A young man who I tried to a jury with co-counsel about five years ago received the death sentence and he was like eighteen years old. And I know that the
reason he got the death sentence was because, number one, gangs were involved, and secondly, he sat at counsel, no matter what I did he'd sit at counsel table all slouched back and really
arrogant and thuggish looking, and I kept telling him "sit up, sit up."
I mean, bought him clothes and made him comb his hair and do things you're supposed to do in respect for the courtroom and the judge and the law.
And he just absolutely would not do any of— I mean I'd be busy in trial doing whatever you're doing at the time, and look over and he's sitting next to me
slouched back in his chair like that.
And the jury I know if looking at him going "you know, if you don't care, I don't care," and so he got the death penalty and he's on Death Row now.
I did subsequently get a letter from him and he told me, he said that he was sorry, that he understood that he did not comply with anything that I asked him
to do and he felt that it was his fault that he had gotten the death penalty.
But it didn't help me because I have a client still sitting on Death Row. So I don't like it, and I don't know. I keep looking because I don't know what's
going to happen if it gets down through the appellate process and he actually does sit there in the Polunsky Unit awaiting a death sentence, I don't know whether I would go, I don't know
whether I could watch it.
I mean it would just, it would be pretty hard to do. Maybe I should do that to show respect for him, but I don't have any respect for the system, so it's
hard to— I don't know. I don't know. That case bugs me.
But the most recent case, and you mentioned this a little while ago, the most recent case that ended well is the case of Anthony Graves, and Anthony Graves
was charged in 1992 with six murders in a little town not too far from Austin called Somerville.
And the six people who were killed were stabbed, shot, and then the house was burned, set on fire and the bodies were burned terribly.
And there were inside that home was an adult woman who was the grandmother of four of the children and another older daughter.
And these six people were all killed in one transaction, where it was alleged that two people went inside the house and shot and with a blunt instrument beat
and knifed these four children and older child and this older woman to death.
And the co-defendant named Anthony Graves as being the person who was with him, and the co-defendant's name is Robert Carter, and one of the children was
Robert Carter's four-year-old son. And there were, without going into a lot of facts that you probably are not really interested in,
but the end result was that he alleged that Anthony Graves was with him and was complicit in this murder of six people and Carter was tried and convicted and
received the death sentence and Graves was tried and convicted and received the death sentence and Carter testified against Graves at his trial.
And the appellate process produced a reversal.
The Fifth Circuit totally reversed the Graves conviction, claiming that there had been prosecutorial misconduct, because the prosecutor in Burleson County
failed to divulge information that was exculpatory to the defense lawyers.
And the exculpatory information had to do with Carter's trying to tell the police that he had lied on more than one occasion about Anthony Graves being a
part of this crime. And someone asked me when we had a press conference in this room after the special prosecutor that had been retained by Burleson County and one of the investigators in
Burleson County did a thorough investigation of the facts of this case and subsequently dismissed the capital murder case against Anthony Graves.
And while we were having
a press conference here in my office the day after the dismissal, someone asked me "well how do you feel now? Aren't you happy?" And I
said, No. I'm happy that Anthony Graves is not behind bars anymore, but I'm not happy. It scares the hell out of me to think that this could happen in 2010 in my state with people
who do the same thing I do for a living. This is a fine investigation that Kelly Siegler and Otto Hanak, who was the investigator in Burleson County did, and
it was very thorough.
They did not leave any stone unturned. They talked to everybody.
They even came here and met with the defense team and asked questions and we gave them answers and suggested they do certain things, which I presume they
But my point was I was so angry because while they did a good thing in 2010, that same thing was just their job.
That should have been done in 2002, if people had done what they were supposed to have done in 2002, Anthony Graves would not have been behind bars for
That's why I said, "No, I'm angry. I'm not happy. I'm angry." And now I'm angry at the prosecutor, the District Attorney in Burleson County because he
refused to sign an amended dismissal order
that had the statutorially required language in it in order to for him, without any major trouble,
to get his state money that should be allocated to him for being incarcerated for eighteen years for a crime he didn't do.
And so now we're going to have to fight for that money, which we will, but it's just sad why he wouldn't sign a dismissal order.
And I refuse to file a motion for a new trial or a motion to do anything that would result in losing that dismissal that was already signed by the judge
because I don't trust him.
I don't know what they're gonna do and I wasn't going to give up that dismissal and so it would have been very simple if he had just agreed to sign an
amended dismissal order using the language "actual innocence."
But he wouldn't do it, so I don't know the result of what's gonna happen. But the feeling of— and this was my first, well actually not the first because I
dealt with a man named Martin Drawn several years ago who I worked out a deal to get him off Death Row.
He pled to twenty years on a murder, which effectively in two weeks he walked out of jail, of prison. That was really good, too.
But the feeling of having some participation in releasing and freeing a man who should have been freed was awesome. I mean it was really and truly awesome.
He was not angry.
It wasn't like you would expect somebody who had been falsely accused and lost eighteen years, the best years of a man's life.
The years that you get married and you have children and you raise your children and you go to their schools and you watch them grow up. He missed all
So he was released from prison with nothing. He had no driver's license. He had no job history. He had no identification.
He had no money. He had no clothes. He had nowhere to go other than his mother's home.
And it was just, it was really sad to see him, almost sad that he was so optimistic and so thankful.
Maybe I was expecting a much angrier person, which is, maybe I'm thinking of myself. I probably would be very angry. But he said "I'm not going to give these
people any more of my energy.
I'm not going to be angry because that requires more energy than I want to expend anymore on this experience in my life. I'm just going forward."
And all I could think of was of the studies I had read talking about how quickly a human being will decompensate after they have been placed in a box with no
nobody touching them saying "You did a good job today" or "Keep it up. Keep up the good work," or you know "You did something. You made a good grade."
No human contact other than somebody sliding a tin tray through a hole in the wall for you to eat three times a day, and one hour a day you can get out and
walk around in a box with sunshine up there,
but you're still in a box. And studies show that it doesn't take long for most humans to decompensate to where they have mental issues.
You can't maintain your integrity. You can't maintain self-confidence or your character or who you are if you have no contact with the outside world.
I don't know what we expect when we put people in a box and say, "Okay you get to live here for the rest of your life for what you did" and think that that's
not sufficient punishment.
Who are these people who think that? You know? How can you possibly say that putting a person in a box,
and by the way bring your toothbrush, you're not ever going to get out, is not sufficient punishment.
We don't have to kill people who kill people. We can solve our problem by taking them off the street without having to kill them, because the possibility is
always there that you kill the wrong person,
like we've just in Texas experienced perhaps, Cameron Todd Willingham, or there was another one recently whose name has escaped me at the moment but a
question as to whether or not he was actually innocent by the crime.
But even if there are questions about the guilt of somebody after we've already executed them is way, way more than I would ever want to be responsible
So I think that— I hope that the death penalty in Texas is going to be gone. I want it gone.
I think it's just awful, and I started this process in the early eighties, not really being against the death penalty.
I think sometimes there are people who do things that are so bad and so against our world and I think you have to judge whether you are for or against the
death penalty if you think, what would I do to that person who harmed my child, or my husband or your wife?
Can you look at that case objectively and say "Well let's just put him in a box for the rest of his life and that'll be okay with me."
Probably not. Most people would say "No. I want him dead."
And so when I started this process I thought that that was how I felt, that there are people who do things so bad that they really deserve to die. They don't
deserve to live and walk on the same earth that I walk on,
because I try to follow the law and live a good life and do things for other people, and I don't want somebody in my space who does bad things to other
But over the years I have learned that that may be the way you feel emotionally, and that's okay to feel like that.
And when I talk about this I think of that poor man up in another state whose wife and two daughters were killed by the home invasion.
It was in Michigan I believe, and they just tried the two or three men who invaded his home and raped and murdered his wife and raped and murdered his two
children and beat him to where he almost—
He came within an inch of dying, and tied him up and when he awoke from his being unconscious in a hospital,
learning that his wife and two daughters were dead by these animals who came in his home and somehow doing it in your home to me is worse than accosting
somebody on the street
and sticking a gun in their belly and saying, "Give me all your money" and oops the gun goes off.
I equate when I talk about it being an emotional thing, I think of that poor man and how many times he must have wanted those people dead,
but after the trial is over and he got his death sentences in whatever state that was—
I guess it wasn't Michigan, because I don't think Michigan has the death penalty now, but anyway, whatever state it was, I'm wondering how he feels now after
but if it had happened to me, I would have emotionally wanted those people dead,
but knowing what I know about our system, and I can only speak firsthand to the system in Texas,
and I can tell you it's a bad system. It's not fair. It's not right. And I always give this example when I'm speaking somewhere,
when you talk about fairness in executions, if somebody commits this kind of murder they ought to—
the same people who commit it ought to get the same sentence, whether it's life or death or fifty years in prison or whatever if they commit that same crime
with the same circumstances in all two hundred and fifty four counties of our state, but that's not the way it is.
You can commit the same murder in Harris County and you'll probably get charged with capital murder and may or may not face the death penalty. You may commit
that same crime in Burleson County for instance or another small jurisdiction in Texas,
and because they don't have the money to pay for lawyers and experts and trials and everything that goes along with capital murder trials, they may not
charge him with capital murder, or they may not seek the death penalty and the reason being not that the facts of the case do not deserve the death penalty.
It may just be because of financial reasons, which is not right. That's wrong. And I think it's obvious, studies have shown that white people who have money
and can afford lawyers don't get the death penalty. That's wrong, too. So the system in Texas is flawed and it needs to be totally gone.
We don't need a death sentence in Texas. We have the life without parole and it's cheaper, it's quicker, it's easier, and it serves the purpose. And I'm
assuming that the purpose is to get this bad, horrible person off the streets so that he doesn't hurt my loved one, or my family, or me.
And that is accomplished by putting a person in prison for the rest of their life.
We don't have to strap them to a gurney and inject them with a drug concoction that even the veterinarians wouldn't use for their dogs.
So I think for that reason we ought to do away with it. Here in Houston over the last several weeks I've noticed that there have been several editorials in
our newspaper here saying just that, that we need to do away with the death penalty in Texas because it is flawed and we don't need it and we don't need to be killing people because they kill
people. How is it okay for us to kill and not okay for them to kill? Other than one reason, and that's revenge.
And that's not a good enough reason for me to want to kill somebody else.So that's what I've done for the last several years. And I've had people ask me
"Well what is it like being a woman in this field where you look at bloody pictures and you see dead babies and know that the person sitting next to you cut somebody's head off and put it on a
stake or killed a child?"
And basically it's the same question that all lawyers are asked, "How can you defend somebody who you know is guilty?
What kind of person are you? How can you do that?" And always my answer is,
Because it's my right and it's his right to have a lawyer represent him to make sure that if the State does something to a person, that they do it in the
right way, and they do it legally.
And the question then becomes "Well how do you defend him if you know he's guilty? How do you defend him?"
Because it doesn't make any difference to me whether he's guilty or not guilty, other than obviously your strategy and your tactics are different.
But if somebody tells me "Yeah I robbed that bank" or "Yeah I killed that baby and chopped it up into little pieces and fed it to the dogs,"
something terrible like that, I do want to know. I used to say I didn't care,
but I guess actually you do care because you have to know what evidence the State has got and you have to know how to rebut it and how to explain away
and if you don't know the truth of your client's circumstances then it's hard to do that.
So from that standpoint most people don't understand that explanation.
They don't understand that all these constitutional reasons that I give.
But I do believe in it and I do believe that the finest document we have ever had on this planet is our United States Constitution,
and I really don't like people jacking around with it. I like the way it is right now and I want it to stay that way,
but I want our rights to stay the same. I want them to leave the search and seizure issue alone.
I like the cases that have been handed down by the Supreme Court recently about the demands that they have placed on lawyers that we have to be good lawyers
We can't be sleeping lawyers or lackadaisical lawyers.
We have to be good, hardworking lawyers if we're going to defend people who could possibly lose their life, and that's the way it should be.
AMBROSINI-BACON: Yeah. Excuse me. I was curious because you mentioned you having, and I think Anthony Graves' story is a good example of having—
it's difficult to believe in the system, if you can believe in the system and you mentioned that.
So I'm curious how you see your role fitting in as defense attorney in this system that you don't seem to have a lot of trust in.
MS. KATHERINE SCARDINO: Well I'm fighting it. I mean the best thing, I can't just walk away because I don't think it's a good system. And I think if you do
that— and I know I've heard lawyers say "Oh no. I don't want to have anything to do with the capital litigation. It's terrible, and it keeps me up at night."
Well yeah. It should keep you up at night, and the closer I get to a trial day, the less sleep I get because you know you wake up in the middle of the night
and you remember something and I've gotten to keeping up piece of paper and pencil next to my bed so that I can sit over there and scribble something out at three o'clock in the morning that
hits me at odd hours.
But I think it's important, you have to stay in the system in order to change it.
You can't change it if you step outside the line and say, "I'm not in this. I don't really do what you do but I want to change it." It's hard to do
if you can't talk about it firsthand, it's gonna be hard for you to do a lot of changing.
I think that the changes that have been made have been the result of good lawyers working really hard and getting good results.
I think the Texas Innocence Project has been absolutely phenomenal in getting some of these people out of prison on exonerations.
I think— we have a Texas Defender Service here in Houston who does excellent work on appellate work and writs, and David Dow at the University of
All of these people who have devoted their careers to working to either fix or delete the capital litigation totally is— they're all phenomenal people.
I'm just a grunt in the ditch doing what I do. Those are the people who actually do the tough work.
They take what I do and what other lawyers do and turn it into situations and make arguments for "This is why the death penalty should be abolished. We don't
need it here."
And I know that I feel in my bones a crescendo of— Something is happening in Texas that, it's totally different than it was five or ten years ago.
I feel like there is a, I don't know how to say it, but there's something that's about to happen. I really feel like we're getting close to more and more
people believing that the death penalty is wrong.
And I think that at some point in Texas, and it may not, it's probably not going to be this year, but it won't be too long from now.
I really do believe the death penalty will be abolished in Texas.
I think first we probably have to get rid of Rick Perry, but other than that.
And speaking of him, our governor, one of the comments that he made after Anthony Graves' dismissal, was something to the effect of, paraphrasing, "See, our
criminal justice system really does work," and when somebody asked me about that, and I hadn't heard it, and I said, What? It worked?
Well why don't you ask Anthony Graves how he felt after about year five, or year ten.
It worked after eighteen years when finally somebody did what they should have done in 1992, eighteen years prior.
So no, the system didn't work. It's a prime example of the worst kind of failure.
I think it's worse than a D.N.A.— because back thirty years ago the Clarence Dupree case that we've had in the newspaper recently, the man who spent thirty
years on an aggravated sexual assault conviction that's recently been proven by D.N.A. that he did not commit, after spending thirty years in prison.
Thirty years. I think there— you can look back on cases like that and think,
well maybe there was a reason because D.N.A. wasn't finite back then.
It wasn't— at some point we didn't even have D.N.A. analysis. That just wasn't a laboratory ability back then whereas now, it is.
So the difference between those people, those horrible, terrible incidences where people spent all those years in prison, and Anthony Graves, it's
That was the difference. This prosecutor in Burleson County and all those Texas Rangers got it in their head that Anthony Graves was guilty, and they
interviewed nobody. Nobody. They did not interview anybody that he said
"Hey, this is my alibi. I was with this person, this person and this person that night.
Here's what I did. I went through the hamburger stand and I got a hamburger and two other people were in the car and talked to the person that was serving me
because I knew who that was, that employee was, and we chatted."
But nobody talked to any of those people back then. So the difference between Anthony Graves and the D.N.A. exonerations
I think is great and it is worse to have a situation like Anthony Graves as opposed to the D.N.A. Both are horrible. Don't get me wrong. I'm not saying that
Clarence Dupree's thirty years is not worth as much as Anthony's eighteen.
But Anthony's eighteen was because of negligence, not because of faulty lab work or no testing, or no D.N.A. back then.
I don't know why it took thirty years for somebody to do some D.N.A. testing on his case. I'd like to know the answer to that. I mean we've had D.N.A. for
what ten, fifteen years now,
so I don't understand the reasoning for that. But that's what is scary is when you get—
and I've had a case where I tried it to a jury, this was I think in 1997, it was a case, the defendant's name is Joe Durrett, and a jury found Joe Durrett
not guilty of capital murder, and the State was seeking the death penalty and I was told, I'd not seen any statistics,
but I was told that that was the first not guilty in a death capital jury trial in Texas in about twenty-five years.
And I'm very proud of that one because that was an absolutely hard fought battle. It concerned the bludgeoning death of two women, one being Joe Durrett's
wife and her sister, and the State—
it was a battle every single day there. A prosecutor came up with something new.
I think we had more hearings in that case and more fights in the courtroom on that case than I ever have had on any other capital murder case.
But that was a wonderful, wonderful feeling.
Defense lawyers, contrary to what a lot of people think, defense lawyers don't really hear those two words very often because usually cases that are tried
are the ones where the State feels like they've got a slam-dunk. They'll work out deals ‘cause they don't want to lose. They want that "Oh I've tried fifty cases in a row and I haven't lost a
single one." Well yeah that's because you've got the facts most of the time and you work out,
you offer reasonable pleas to those where you know you don't have enough solid,
slam-dunk type facts to go to trial with.
But the defense lawyers, who like me are down in the trenches trying these cases, we don't get many not guilty verdicts.
So it's— especially serious cases. I'm not talking about the misdemeanors and D.W.I.'s and that kind of thing, because that does happen. I know.
But the capital cases obviously, not many, and we always consider it a win if it is a death case and we wind up getting life.
I mean I look at that as that's a total win. My client gets to live for the rest of his life.
He doesn't die. And I've had lots of life sentences and that one not guilty and I think my record probably is as good if not better as any other capital
lawyer in the State of Texas, if I can blow my horn a moment.
But the Joe Durrett case was amazing.
That was fabulous to hear those two words at the end of a really long, hard fought case.
And that was where the State was trying to do all sorts of underhanded things, like taking the evidence from the medical examiner's office without telling
just going over there and picking up the evidence, which is my evidence, too. It's not just theirs.
I mean it's mine also. Didn't tell the judge, didn't tell the defense, and just sends it up to another laboratory for testing, cause they didn't like the
result that the M.E.'s office had gotten here on D.N.A. and hair and other things. So they didn't get a different result at Cellmark either.
So in talking to the jury foreman— and I've stayed in contact, it was a woman, I've stayed in contact with her over the years and actually even,
she called me to represent her son when he got into a little jam here in Harris County.
And she— the only thing she really said to me was, "They just didn't prove it. The State just didn't prove their case,"
and they did not like the way the prosecution treated the Medical Examiner's employee,
the D.N.A. expert that we had, and so that was really cool, getting that not guilty verdict.
I'm sure, and I know it's happened since then with other lawyers, but for me as a woman and no recognition I might add.
I was a member of Texas Criminal Defense Lawyers Association and the next year I think Mike Ramsey,
who is a lawyer from Houston, tried a case here and got a not guilty on a case involving a man named Robert Angleton.
He was a bookie here in Houston accused of killing his wife in a very ritzy part of town. He was white and had a, was very wealthy, and hired Mike Ramsey and
this other lawyer, Stan Schneider I think was in the case,
but anyway they got a not guilty on that and Mike Ramsey got lawyer of the year.
And I'm sitting in the audience and he was introduced as having had the first not guilty on a death capital case in Texas in twenty five years and I'm
sitting back there going, Hello? Remember last year?
or I guess it was a year or so before that but that's what happens.
And women, even though they make up fifty percent of the lawyer population, and when I was going to school it certainly wasn't fifty percent but it wasn't
unusual for a woman to be a lawyer. Back in the seventies or sixties yeah, I mean there were maybe one or two lawyers, women lawyers graduating classes but by the time I came along there were
many women. I don't know the percentage.
But now at least fifty percent of the lawyers are women.
So it's nothing unusual to be a woman lawyer. It's just that in my opinion, women lawyers still have to work harder than men do to get any kind of
It seems to me and my world here in this county and in other counties in Texas where I've worked, that the men are the ones that get hired on the big cases
they actually can put retirement away and actually have money in their bank and that kind of thing. It's the men who get hired and not the women.
And I know there are some very fine women in Texas today who do the criminal defense work and some of the capital litigation as well.
So I'm real happy to know that, but not enough, and we don't get enough recognition.
And I'm not sour grapes, I hope it doesn't sound like it, that's not what I mean at all.
I would do the same thing no matter what. It would just be nice to have a pat on the back. But anyway, that's the way it is.
AMBROSINI-BACON: Yeah, excuse me, and even in doing a little research before this interview I came across an article with the title, I'm sure you remember
it, it was I think "Queen of the Good Old Boys" was the title,
and it just struck me as something that's very interesting to be a prominent attorney and sort of surrounded by male colleagues and what that must be
It's very interesting to hear about.
MS. KATHERINE SCARDINO: Well I was surprised that that article came out, and you wouldn't believe the comments that I had. I get a letter from a female
lawyer here in Houston that was venomous.
I mean it was terrible and I really don't know why. I mean I wanted to respond with my typical two letter, two word response, but I was told that no, I
probably shouldn't do that, so I didn't. I mean it wasn't something that was—
A lot of people said "Great, Great. It's a good thing," but I guess I was surprised that first of all, he, the reporter wanted to do that story,
and secondly I guess I was surprised at some of the response and from women. Maybe it was jealousy, I don't know. But yeah, I never felt like I was queen of
the good old boys because they don't look at me as being one of them.
You know what I mean? I mean I'm not a guy.
I'm not one of the good old boys in the criminal defense world, although we're all friends and I know them, but they don't look at me as an equal. I don't
think they do.
AMBROSINI-BACON: I'm curious to ask you, in some of the other interviews that I've done what I've learned is that if you're doing difficult work and trying
difficult cases and having your clients executed and that sort of emotional toll it takes, community is something I've noticed people say is important.
MS. KATHERINE SCARDINO: Community?
AMBROSINI-BACON: Having colleagues that you can go to and commiserate with and share your feelings.
MS. KATHERINE SCARDINO: You mean me as a lawyer commiserating with—? Well I've never had anybody yet executed, so I don't have a personal experience as far
as that feeling,
although I used to office with a lawyer who did. He did a lot of writ and appellate work and he has had several of his clients executed, and he moped around
for a week.
It is hard. I can't even imagine what it's gonna feel like for me if one of my clients is strapped to that gurney and executed.
I can't— I mean the responsibility for a lawyer in a capital murder case is more than awesome.
It deserves sleepless nights and a lot of concern and worry and hope that you do the right thing and constantly looking at your evidence and your exhibits
and what else can I do?
Who else? And mitigation, and you don't want to forget punishment, because in some cases, in capital cases, that's the most important part of the capital
trial. And that's kind of my weak point because I really am more of a let me get my teeth into the guilt part of the trial, and my second chair, okay you do the punishment part. But now I've
kind of done an about face on my opinion about that.
I think now that the punishment hearing is absolutely as important as the guilt in most capital cases.
In the Anthony Graves case, for instance, if we had had to try that case that would not have been so, because he's been in prison for eighteen years.
We don't have a lot of mitigation other than the fact that in that eighteen-year period, and I subpoenaed his disciplinary record, it was about one sheet
where he got in a little spat with somebody over a fork, or I don't know, some little silly thing like that.
But there would have been, other than family coming in and talking about the way he was before,
and how all of this has affected him over the last eighteen years, there wasn't a lot.
It wasn't like he's been out and he's done all these good things to other people and so let's put all these witnesses on who can say what a great person he
That wasn't there. Anthony Graves' would have been all guilt, and I would have—
they would have had to drag him out in handcuffs if the jury had found him guilty with me clinging to his legs,
‘cause it was just not gonna happen. I was not gonna let that happen.
I've been told that I take my cases personally and the person who has made that comment to me, it wasn't a compliment. I mean I think he said that to tell me
that I need to lighten up a little bit and my response was, I can't, there's no way.
And I don't think anybody who does this kind of work, if you don't take it personally how in the world are you ever gonna convince a jury that you mean what
you say if they don't believe you?
The first thing that a lawyer has to do is to develop credibility with the jury and they start that with the first word that comes out of their mouth in jury
selection. And I try to talk to them just like I would talk to a neighbor or somebody that I know or my family in East Texas, or just anybody on the street.
I don't, try not to confuse them with legal terminology because you don't need to use those kinds of words in order to get across what you're trying to
And I think that if you have a personal connection with your client that the jury will feel that and they will see it and understand that this person is
really working hard and if they like me,
they will give me more credibility than they'll give that stiff, arrogant prosecutor.
And that's happened in cases before.
So, I remember another case here in Harris County. I represented a young kid. He was twenty-years-old, had robbed and killed in a, wasn't Blockbuster Video,
what's the other one? Anyway it was one of those video stores here in Houston and he had killed two young students at the University of Houston who were working there as clerks. Horrible,
terrible. I mean their families, they had good families, and good kids and grades and students and just, executed,
laid down on the floor [makes gun sounds]. Just awful.
And taking I don't know, what, sixty bucks out of the cash register and run out of the door, he and another guy.
But you mentioned earlier about learning about an individual and when you hear about those facts, you go "Oh my God, let's kill that person.
That's a terrible crime. Two young lives lost."
But what I did in that case is show this jury that this kid had, first of all, a terrible, terrible home life.
His mother moved the family to Freeport, Texas, which was just the absolute— she couldn't have pinpointed or picked a worse place to raise a child during
that period of time than Freeport, Texas;
drugs, gangs, just awful, awful place, and of course if you're poor you live in the worst part of any town.
And we developed that really well to the point where, in the first trial the jury found him guilty and then hung on punishment. And so we had to come back,
let's see, no, no, they found him—
they hung on guilt, so we had to do the whole trial all over again, so we did it again.
And the jury, one of the guys, good old country boy on the jury said after we put on all this evidence about—
the second time, he said "There was never any way that I was gonna kill that boy."
And I thought that exemplified the best possible scenario for a defense lawyer, because first of all he called him a boy.
And he just, he was, "I'm never gonna— I would never kill that boy.
I would never participate in the killing of that boy." And I love that statement,
and so the second trial resulted in life. Prosecutors were aghast.
They are always expecting to win. Prosecutors are supposed to win.
That's what they do. They win. We lose. But they don't, a lot of times,
in capital cases with me and I'm very happy about that.
AMBROSINI-BACON: Would you mind talking a little bit more about what it's like to be in front of a jury during the trial and what that's like?
MS. KATHERINE SCARDINO: Sure. Oh my goodness. I don't care if you've practiced, been a lawyer for a hundred and fifty years. When you first start a capital,
and I'm presuming you want me to talk about capital cases, right?
MS. KATHERINE SCARDINO: Because then you have individual voir dire, which really isn't as scary as, in my mind at least, in my own feelings, as standing up
in front of a room of sixty or eighty people, because I don't get that one on one experience. And that's what I want. I want the one on one experience with the potential juror. But in capital
cases, where the State is seeking the death penalty,
we get to talk to each individual juror by himself.
And generally, in Harris County at least, we get about thirty minutes a side.
The State goes first, and so they ask questions of this juror for thirty minutes, and then the defense lawyer get to do the same thing.
And the rules are a little slack during that period of time because—
and when I say that what I mean is we can get up and kind of walk around the room and talk to the juror and write on the blackboard or show slides or
whatever you have to do. Some lawyers these days have Powerpoint presentations. I hate those things.
I'm sorry but I do. But to talk to them, it's actually, it's very challenging, because these people, you know first of all that they're going to lie to
And you're trying to figure out exactly what it is that they're gonna lie about.
They're gonna tell you they can be fair of course. I hate that question, "Can you be fair?" well what're you going to say? "No. I'm the most unfair jerkhead
that's ever walked the face of the earth."
So, but it's easier to do it in a capital case than it is when you have a room full of people.
And when I say that, what I mean is it's easier to develop a connection with these people. And I try very hard to talk in the usual tone of voice and I want
to use normal words and want them to like me.
That's what I'm trying to do, is to make the juror like me as a person, not me as a lawyer.
I want them to understand I have a job to do, and this is what my job is, and this is what I feel. But you also have to follow the law, and here I've got to
tell you what these legal issues are
and you've got to agree to them if you do.
If you don't it's okay. And I always tell a juror that I don't want some wimpy person back there who can't stand up to another juror.
I want strong jurors. I don't want somebody whose gonna fold if there's ten people looking at them in the face going
"You're an idiot. How can you think this?" Like that. I don't want a juror whose gonna go "Oh I'm so sorry. I made a mistake, let me rethink this."
I want, and I make sure, and I tell them why I want somebody who's got the nerve and the guts to say,
"You all go do whatever you want to do. I have listened to you. I have deliberated with you.
I have done what the court ordered me to do, but in the long run, at the end of the day, my verdict,
my belief is different from yours, and I stand by what I feel, not the way you feel."
That's what I want, and I have to, I talk a lot to a juror about that because in my mind this is, first of all the only opportunity I ever get to say what I
think to a juror, and them to me.
And I believe in capital cases I want very smart people, and I usually try to choose jurors who have a college education or higher. I want people who are
outspoken. I love engineers, I know a long time ago people said "No Engineers are terrible." I like engineers on capital trials because they have that analytical mind, mathematical type people
who can say
"But wait a minute, that doesn't really fit. The judge is saying this is what we've got to do, here are the facts that we were told by the prosecutor that
fits this, but I don't think it really does." That's the kind of mind that I want in a capital trial. I don't really,
I can't really say whether I care about race or not.
I know that race isn't an issue, but you'd be blind dumb and ignorant to not think about it when you're looking at a jury and trying to decide who to pick
for your typically Black defendant
sitting here next to you and it just depends on what they say but I think the most important thing is you've got to sell yourself
and you have to pick strong, smart, engineering type minds,
I think, in capital cases. People who have the nerve to look at the prosecutor and go
"I know you're representing the State of Texas, but that doesn't sway me. You have to prove something to me, and you haven't yet, and so you lose." That's
what I like.
Katherine Scardino, a criminal defense attorney in Houston, Texas, has defended roughly forty clients charged with capital crimes. She was appointed to represent Anthony Graves in 2006, before prosecutors dropped all charges against him and he was exonerated in 2010. In Video 1, Scardino discusses her background and journey to becoming a lawyer; Anthony Graves' case, her general feelings about the death penalty system in Texas and her place within it; and her strategies for jury selection. In Video 2, she continues to discuss jury selection; and then goes on to share her thoughts on cross-examination; on interacting with her clients; and on assembling a team to work on the various facets of a capital case. She concludes with a brief discussion of mental illness and working with mentally ill defendants, as well as the emotional impact of the work in general. This interview took place on January 5, 2011 in Houston, Harris County, Texas.
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Kimberly Ambrosini-BaconRole: Interviewer
Justine RifeRole: Videographer
Maurice ChammahRole: Transcriber
Kimberly Ambrosini-BaconRole: Proofreader
North America--United States--Texas
North America--United States--Texas--Austin
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