The Cross-Examination Style of Richard 'Racehorse' Haynes
The Importance of Preparation
Court-Appointed Counsel and Getting Funding
Scardino's Team on Capital Cases
Relationships with Clients
Meeting a Client for the First Time
Clients with Mental Illnesses
The Insanity Defense
Issues with Getting Care to Mentally Ill Clients
Self-Care and the Emotional Toll of Capital Work
General Reflections on the Work
Richard 'Racehorse' Haynes
University of Houston Law School
AMBROSINI-BACON: — pick up with what we were talking about?
MS. KATHERINE SCARDINO: Well I think we were discussing the kind of juror that I try to get every single time,
sometimes very successful, sometimes not.
But I think the smart juror and the analytical juror is the kind that most capital defense lawyers would agree would be better for you in the long run,
cause what you want is somebody to nitpick, to make sure that they feel that the State has proven beyond a reasonable doubt each and every element of every
piece that they have charged him with,
every piece of that offense. And sometimes the jury will tell you that they didn't do it,
they failed, and when we've got a juror and we know we don't want this person, we start trying to get that guy off. And one of the favorite questions is try
to exclude him
on the basis that he couldn't follow the law on the basis of the technicality,
the name of the county where the offense occurred.
Maybe the State forgot to prove up Harris County and on a motion for an instructed verdict the judge has to grant that because the State did not prove up the
county that the offense occurred in,
and that's an element of the offense and it was not proven. You okay with that? Well, uh, no.
Okay. So you take it a little bit further, but there are just different ways you use to try to exclude a juror that you know is not going to be good for
It would be nice if every single person that we talk to was acceptable and all you had to do was to make them like you,
what I said before, try to get them to think that you're a credible person, you're a likeable person,
even though you're a lawyer. Most times people don't really like lawyers, which is kind of another subject.
But there are just different ways to do it and it's interesting.
I like voir dire. You kind of get a little bored because you tend to say the same thing to all the two hundred people that you talk to,
to finally get twelve plus two to four extra alternates on the panel.
But all in all I like it. It's fun and interesting and you get to meet a whole lot of people and you get to hone your skills a little bit, and that's where
you do it. And there's nothing in any trial more important than jury selection.
AMBROSINI-BACON: Would you mind talking a little bit about being in the, during the actual trial, going up and doing the cross examination and questioning
and how you communicate with the jury and what all of that is like?
MS. KATHERINE SCARDINO: Well there's two schools of thought. One is to drag it out as long as possible and bore everybody to death and keep somebody on the
witness stand as long as you possibly can. And another school of thought is to be sharp and quick and in and out and make your point and sit down.
I've seen so many lawyers who ask stupid questions and they don't do it in the way that they were taught in law school, I'm sure, and they don't know when to
They make a point and then they just keep going and then the point is lost.
What you want to do it after you make a point with the jury, or maybe you've got the police officer on the stand and you catch him in a lie, where he said
one thing in the offense report and another thing on the witness stand.
Well which one is it? Which one is the truth? Is it what you just then said or is it what you wrote ten minutes after the offense occurred?
And maybe the police officer will make some incriminating statement about himself and then, "Thank you, I'll pass the witness."
That's it; you've got your point made in front of the jury. Don't keep asking questions that's going to denigrate or dilute the point that you've made with
this police officer, or any witness.
So I think that's something that a lot of lawyers that I've watched in trial do.
I think one of the most, one of the best lawyers I've ever seen is Racehorse Haynes in trial about ten years ago.
He's eighty something now and what a fine, fine man and a fine lawyer.
He's persistent. He is of the school, I think, and maybe this is the way they used to do it, is that you just go on and on and on and I've heard him say that
even a blind hog finds an acorn every once in a while.
And if he doesn't have a very good case he'll just keep that— sooner or later he's gonna find somethin'. And I think that's probably not a bad idea if you've
got a good case and you don't know where in the hell you're going with this line of questioning.
So just keep asking, keep finding one. One question builds on another and sooner or later you'll hit a nugget.I love trial work. I think that there's nothing
more exciting than the judge looking at you and going "Ms. Scardino, call your first witness." I just love it. It is exciting and you want to be so prepared.
I remember in law school it was, and I graduated from University of Houston law school and it was ingrained in us in my class. I don't know what they tell
the newer students, but they say "Be prepared. Be prepared. Be prepared." Well I didn't know what that meant back then. You know, be prepared, what read a case or two?
What does that mean? Not ever having tried a case it's hard to understand what they're trying to tell you.
But if you're not prepared when you go to trial you will look like an idiot.
And those of us who are trial lawyers, I like to think, we also are egomaniacs and we don't want to look stupid.
And you don't want to get caught not knowing something that the prosecutor knows, or not knowing how to introduce a business records or things of that
nature. You want to know what you're doing. And I would never go,
want to go to trial or be in a courtroom where I look like I didn't know what I was doing.
I can make mistakes. Everybody makes mistakes, but you don't want to look stupid.
And I'm egotistical enough to try very hard to look and act and actually be prepared when I go to trial.
I know that I've heard lawyers say, "Well I tried a case on the back side of a checkbook," or something.
Go in without even a legal pad. That had to have been thirty years ago, or forty years ago when we didn't have the requirements or the rules that we have now
because you do that now and you get in trouble.
Although I've seen some of them do something equally as bad, but you don't want to do that.
You want to be a good lawyer and I think most of the lawyers that I know are good lawyers.
I know that some are gooder than others.
AMBROSINI-BACON: I'm curious though, are there— would you mind talking about sort of the— and you mentioned that your first cases were court appointed.
MS. KATHERINE SCARDINO: Were what I'm sorry?
AMBROSINI-BACON: Court appointed. So I'm curious if you could talk about I guess the stereotype that comes with being the court appointed lawyer and what
that means in terms of how much budget you're given to try a case
and your caseload and I guess what the workload is like and your resources to do a good job.
MS. KATHERINE SCARDINO: Well, that's very difficult. Court appointed, and most capital cases are court appointed.
Only the very, very few are retained cases.
I mean people who commit these kinds of crimes generally do not have any money. They're usually poor people, crimes of passion, or they're robbing a
convenience store for a few bucks and in the process kill the clerk, or for whatever reason. So generally court appointed cases in the capital litigation world is just the way it is.
A long time ago, as I said earlier, there wasn't a lot of money for experts and punishment hearing witnesses.
But then again, we didn't have the Supreme Court cases like Atkins and some of these other cases who talk about
"You, Miss or Mister Lawyer are ineffective if you don't do this investigation,
if you don't have a mental health expert to determine whether or not this defendant is mentally retarded."
So we have to have the money today. And you fight for the money.
There are some judges, and I can name one as I'm sitting here speaking to you, who I have to fight for money for a mental health expert and for an
investigator. I've had a judge tell me within the last year that he believes lawyers need to do their own investigation.
And I'm going "Well, now wouldn't that be silly. You're going to pay me my hourly rate to go do an investigator's job at half that?"
I don't understand that thinking. That doesn't even make good sense. So today in the world that I live in today,
with capital litigation, I think we have trained the judges,
and it's been a process, because they originally were not up to signing these orders that gave thousands of dollars to people to assist in these capital
They knew that it came out of their budget, and they were held responsible for however much it was at the end of the year for all the cases,
and it wasn't just mine. It was whatever other capital cases came out of their court.
So it's been a battle and ironically the easiest place now in my caseload that I have now, to get money for experts has been in a smaller jurisdiction.
They don't have as many capital cases, and they're not familiar with what it really takes, so I get whatever I need out of those jurisdictions.
But in Harris County, where they have capital cases all the time,
and they try to keep the money and the expenses low.
So it's hard to deal with that part of it, but once you've got your team, and I have over the years I've developed a team that I like to work with.
And every time I get a capital case, I have generally the same investigator and the same mitigation specialist and the same mental health expert.
And the mental health expert is a woman out of Dallas.
I used to have a mitigation expert out of Dallas, but now I have this wonderful young woman here in Houston.
And I have an investigator here and we're a team. We all get assigned our job and they go about doing their job.
The good team will do their work and then report back to me. I don't have to be on their tail all of the time to tell them what to do.
Have you done this? Did you do that? They do their job, and that's the way I like to do the capital cases because it's easier for me.
I do my work and they do their work and I get reports, and I get what I need.
And from that viewpoint, the capital litigation is not that difficult in the sense of the actual work.
It's a case. It's a trial, but the mental strain, and the responsibility is gigantic.
So everybody is aware that the work is important and they have to do it right.
And I know when they don't do it right, so if they ever want to do another case with me, they won't mess it up, and they haven't, my team has not.
I know that some people don't, they don't— I don't know.
I like to work with a team and I call it a team because it seems like that works best for me.
Other people get different people on different cases and all of that, but I like the team aspect because I think it makes everybody feel like they are
They've got a part in this little opera that we're working out.
And they do their job and they do it right. Capital work being court appointed means that you don't get paid a fortune.
Lawyers get paid by the hour and probably about one fourth of the amount that they would make if they were working on a retained case.
In other words, I do family work and I work at an hourly rate that is about one fourth of what I get an hour in capital cases.
So it would be a lot more lucrative for me if that was all I wanted,
to just do the family work and not do any more of the criminal work. But that's what I like to do.
AMBROSINI-BACON: I wonder if we could shift gears a little bit. I'm curious to ask you, you talked a little bit about decompensation.
And I'm curious it sort of made me think about what sort of relationships you establish with your clients, working with them, and what that's like.
MS. KATHERINE SCARDINO: Well of course I don't do appellate work, so my work with the client is while they are awaiting the initial trial and I think it's
important that I be their lawyer.
We've talked a little bit about how I take things personally and I really get involved with my client,
but I don't spend— I don't go see them every day.
They have to look at me as their lawyer.
I'm not their mommy, and I'm not their preacher, and I'm not their shrink.
I'm the person that they've got to know that I'm doing what I can for them to get them out of this mess.
But I'm always realistic with them. I'm never going to lie to a client.
I'm never going to tell him I can give him a result and guarantee it.
That's the worse thing a lawyer can do. You don't ever want to say "Oh I'll get you out of this."
That's silly. How could you ever guarantee a thing like that?
And once you have lost the confidence of your client, he'll hate you for it.
And he likes to feel like he's got a good lawyer, somebody that's working for him on the one hand,
but on the other hand, I don't want him to have any false sense of,
I'm gonna, at the end of the day, I'm gonna ride down in the elevator with that jury.
That is, most likely, not gonna happen.
And in order for him to be able to assess whether or not a recommendation on a plea bargain is a good one or not,
he's got to trust me. And if he doesn't trust me,
then he probably won't accept a good plea bargain,
one that he really should accept, most of the time.
So I think that's important for him to have some trust and faith in me as his lawyer.
I got a new capital case last week and we had our first court setting yesterday,
and I met with him for the first time in the holding cell behind the courtroom yesterday.
He starts to tell me that,
"Well I want you to file this motion, this motion, and that motion,"
and my response to him was, Mister so and so, you may file whatever motion you think you need to file.
I want you to do it. Write it out and send it in and file it,
and I'll make sure that it's heard, but I know what I need to do and what I have to file and I will get that done.
So you have to believe that I know what I'm doing,
but if you think that you have something that you want to file, please don't hesitate.
It won't hurt my feelings. You're not going to make me mad.
Just file it. I never want to tell him don't file anything because then he'll complain that I kept him from doing something, so.
And by the time I left, "Oh no. I know you know what you're doing. You're okay."
So that was good. I gave him an assignment. I want him to tell me all the names addresses and phone numbers of his family.
I want names and addresses and phone numbers of any significant people in his life,
like teachers or preachers or neighbors or friends, people who've known him.
Every school he's ever gone to, every mental health expert he's ever seen.
So I left him with some paper and a lot of homework to do. So that made him happy.
He's busy now. That's good. That's all necessary information.
AMBROSINI-BACON: I'm curious if you've had clients that are mentally such that they can't provide you with the names and addresses and phone numbers of their
and that sort of thing, and how you work with them to get the information you need.
MS. KATHERINE SCARDINO: Well not so much that, but clients who have mental deficiencies of some kind.
I mean I've had, it seems like I went for a long time and I really didn't have any insanity-type defenses or incompetency, true incompetency-type
And within the last year or two I've had several, two or three, and it is very difficult.
I've had two who've been declared incompetent to stand trial, but then of course as they send them off to Vernon's,
and they stay in Vernon's for ninety days or a hundred and twenty days, and they ship them back saying, "They're fine now."
They're on all sorts of meds. They're high as a kite most of the time, but they're fine.
The insanity defense is— that's odd how that works in this particular client, I truly believe he was insane at the time of the offense. To talk to him today,
he doesn't sound odd in any way, or that he's lacking his sense of knowing right from wrong,
but I know that he was insane at that time.
He had a long history of mental health problems.
But most of them, it's not like they don't remember their families, or people they don't forget.
But sometimes they'll have a different perception of reality, of what actually happened.
It's hard to communicate with someone like that.
You almost have to leave it up to the mental health expert to get him back on track.
And it's hard to tell the jail that this person needs this medication because he's got a mental problem,
because good ol' boy deputies in smaller jurisdictions or even here, they couldn't care less.
He's just an inmate accused on a terrible crime.
So they don't really care. That's a tough issue, is getting medical attention to inmates when they really need it.
AMBROSINI-BACON: Yeah. I had one other quick point I wanted to ask you about. I'm always curious because you're working, as you mentioned before,
looking at upsetting photographs and hearing at disturbing cases and working very hard, and sleepless nights and all of these things. How do you sort of
balance your life and maintain yourself where you can do this sort of work, self-care and that sort of thing.
MS. KATHERINE SCARDINO: Well, I think it caused one divorce. It's not easy,
and I'll just devote the answer to during the period of time when I am actually preparing for trial.
For instance, if Anthony Graves' case had not been dismissed I would be getting ready to go to trial on February the fourth
I think it was, fourth or fifth, and I would probably be a basket-case about right now.
There would be papers all over this office, files everywhere.
When I did have the file here in the office, it took up rows and rows of file cabinets.
And it was a lot of information to learn, having come in on the case only what,
three years ago and there were other lawyers prior to us.
But I had to know everything that happened prior to,
or since 1994 when he was convicted.
So it was a lot of paper to go through,
and I would probably be a basket-case working I don't know twenty hours a day, maybe a little less.
But long hours, not very much sleep,
so yeah, it is hard.
But I'm not married so it doesn't seem to be a problem, just me and my Shitsu dog.
AMBROSINI-BACON: Justine did you have any questions you'd like to ask?
RIFE: I think I'm good.
AMBROSINI-BACON: Okay. Is there anything that we haven't discussed that you would like to talk about, or anything that you'd like the public, available to
the public record and that sort of thing, that I haven't touched on?
MS. KATHERINE SCARDINO: Well I think we've talked a lot about the death penalty itself and I think I was fortunate when I was licensed in eighty-four to have
been able to get into this field when I did,
because what I saw was massive amounts of changes over the years.
And I feel like I have been able to contribute something to this field,
if nothing else just the experience and the life experiences of knowing different people and trying these cases.
It's been something that I'm very proud of, and I look back over my life,
I'm not a spring chicken anymore, and I'm very proud of what I've done,
and I think at the end of the day I will never be sorry that I did what I did for a living.
I think I did a very noble thing, very humbling in a sense, because the responsibility is so great and I'm just a little person. Whatever you contribute is
important, and when you have enough good people doing their part and their share,
then it becomes something of major importance.
So I'm very proud to have done what I did for a living. I hope that there are younger lawyers who are gonna come along after this generation,
and they will make the practice of law as noble and as honorable as I think it used to be.
Unfortunately, I feel like that I'm living in an era where lawyers are not held in such esteem as they used to be back in the—
a long time ago.
And when I first went to law school I thought, oh my goodness, of course remember I told you I'm from East Texas, and I really didn't know a whole lot.
But I always thought lawyers were just the finest thing that anybody could be, would be a lawyer.
That would be something. And during the time that I've been a lawyer we've had all these lawyer jokes,
we've had lawyers doing things like sleeping during trials, and embarrassing things for our profession.
So I'm hoping that, I think we're coming out of that now.
I think people are beginning to see that criminal lawyers are not the pond scum, and that criminal lawyers are the ones that need to be honored.
I'd like feel like I contributed something to that and hope that the younger, next generation of young lawyers [cut off].[END OF INTERVIEW]
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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