Queen of the Good Ol' Boys
Katherine Scardino usually looks good -- at 54, she can pass for a decade younger -- but today in court the overall effect was particularly striking: Her blond hair streamed obediently to the shoulders of her brown Anne Klein suit, her makeup was subtle but not too subtle, her tortoiseshell glasses hung just so by a gold chain around her neck. She'd achieved the groomed perfection of one of those semifamous talking heads on a Court TV chat show -- and in fact, Scardino had recently made those rounds, had begun to make herself a celebrity lawyer. But today, as she mounted her closing arguments, her good looks were harnessed for a different, more serious reason: to save the life of Calvin McGee, a 22-year-old black man, the latest target of Harris County's death machine.
In October 1997 McGee and some friends went searching southeast Houston for a car to hijack. They set their sights on a white Cadillac in a Kentucky Fried Chicken drive-thru lane. As the driver, 61-year-old Irma Malloy, ordered her food, McGee told her to get out of the car. Malloy screamed. McGee shot her in the head.
The case appeared open-and-shut. Three of McGee's accomplices stood ready to finger him as the trigger man, and prosecutors described him as a "natural-born killer." The only thing going for him -- the only thing that might save him from death row -- was Scardino, his court-appointed attorney.
"Court-appointed attorney": It's not a phrase that inspires confidence. In the United States, it's often said, you get the justice you pay for, and usually the appointment hustlers anxious to defend indigents aren't the type to make prosecutors tremble. But Scardino is different: Two years ago she was the first attorney in 23 years to have a Harris County client acquitted of the charge of capital murder.
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In some ways, the McGee case was a rematch for Scardino. The lead prosecutor was Craig Goodhart, the assistant district attorney she'd also faced for a while in the Joe Durrett case, the case where she won an acquittal. For that trial, Scardino found a credible witness who accused Goodhart of attempting to distort the medical examiner's findings, and Scardino herself told a jury that the prosecution "has treated you like idiots." Obviously, winning Durrett's freedom did not endear her to Goodhart or anyone else in the D.A.'s office.
But with the McGee case, Scardino had far less to work with. There was no doubt that McGee pulled the trigger; there were no unanswered questions. Scardino didn't hope to get McGee acquitted, only to save him from a death sentence. She and her co-counsel, Robert Morrow, called only one witness: a firearms expert who testified that the gun used to kill Malloy had an unusually sensitive trigger. In her closing argument, Scardino argued that McGee hadn't intended to pull the trigger, hadn't intended to kill anyone, had pulled the trigger by accident. She pointed out that had he intended to kill Malloy for her car, he'd have driven away in the Cadillac instead of fleeing on foot. Scardino asked the jury to find McGee not guilty of capital murder -- and hoped they might find him guilty of the lesser crime, murder, a crime not punishable by death.
The eight-man, four-woman jury was out for only two hours. Then they returned the verdict Scardino had dreaded: guilty of capital murder.
She wasn't surprised. Neither, obviously, was she pleased. But she and Morrow didn't have time to dwell on the jury's decision. McGee's life was still at stake. The next stage of the trial -- the punishment phase -- marked a second chance for the defense to save McGee. It was the attorneys' chance to tell the jury the extenuating circumstances: McGee's low IQ, the poverty and abuse of his childhood.
Scardino, who made a compelling closing argument though she had little to work with, shied away from this phase, though it offered more fodder for a lawyer. She wanted Morrow to take over. Poverty and abuse make her emotional -- maybe too emotional -- because they hit a little too close to home.
Scardino was born Katherine Jenkins and grew up rock-bottom-poor in Gallatin; she describes it as "the sticks of East Texas." Her dad, Alton, was 60 years old when she was born. He scratched out an existence by farming, combining his $54-a-month Social Security check with proceeds from the sale of tomatoes and watermelons.
The family of four lived hand-to-mouth. Dinner was usually a pan of corn bread and a pitcher of buttermilk, and Katherine grew up with an outdoor toilet. Her first pair of glasses was bought by the Kiwanis Club. When her friends' mothers made dresses for their daughters, they made an extra one for her.
When she was small, one of her dad's mules kicked her; her forehead still bears the scar. She bears other scars, too. Without being specific, she says that she was sexually abused by someone other than her father. For that she blames her mother, Vassie, who was 24 years younger than Alton. If Vassie didn't know what was happening, says Katherine, she should have.
When Katherine was 14, Vassie deserted the family. "I get choked up every time I start talking about where I came from," says Katherine, "because it was so damn painful."
Still, she thrived in high school. She was nominated to be Miss Jacksonville High, and from ninth grade on, she was a cheerleader.
But halfway through her senior year, at age 17, she became pregnant by Rob Robbins, one of the school's star athletes. It was 1962, and there was no such thing as abortion on demand. She says she tried frantically to induce a miscarriage: "I must have jumped off the roof of my house 8,000 times."
To the chagrin of Rob's family, he and Katherine were married, and they relocated to Pasadena, Texas. Too late, Katherine discovered that she had, in fact, miscarried.
The marriage lasted through another pregnancy. (Their son, Scott, is now 34 and works for Bank United.) But after five years, when Rob decided to return to the Piney Woods, Katherine couldn't imagine it. Alone, with a child to support, she landed a secretarial job in Clear Lake.
Not long afterward, she went on a blind date, waterskiing with a law student named Robert Scardino Jr. They clicked, and in 1970 they were married. "I thought I had really snagged somebody," she says. There's no irony in her voice; she sounds entirely, shamelessly grateful.
Robert was 26, a year older than she was. He was also handsome and on his way to becoming a successful attorney like his father, Robert Scardino Sr. Katherine kept her job while Robert finished law school, working right up until the birth of their son, Anthony. (He's now 23 and a student at the University of St. Thomas.)
It was a comfortable life -- certainly better than anything she'd imagined down on the farm -- but one that left her uneasy. Since leaving the Piney Woods, she'd never not worked. Besides, she suffered from what she calls her "East Texas insecurity." Robert's family, friends and associates were sharp-witted and well educated; her life experience consisted mainly of taking dictation and raising her boys. She felt like an outsider in her own home, and she wanted more.
She'd picked up a few college credits here and there; now she asked Robert whether he'd pay for her to finish a degree. He agreed, and in 1977 she enrolled in the University of St. Thomas. Four years later, she graduated with honors. This time, she asked Robert if she could go on to law school, and again he agreed. After she graduated from the University of Houston's law school in 1984, she set up shop with her husband, occupying part of his downtown office in the prestigious Texas Commerce Tower where she primarily worked court-appointed criminal and juvenile cases.
Eight years later, Robert and Katherine were divorced. Robert is extremely complimentary of his ex-wife and proud of her accomplishments, but he declines to comment on the breakup. Katherine, though, believes that he suffered from a Dr. Frankenstein syndrome, that he preferred her uneducated, stay-at-home incarnation to the professional lawyer-wife he'd helped create. "I think it was hard for him to take what he made and like it," she says. "He wanted what he had before, but he couldn't have it. Because it was gone."
During the divorce, Katherine was a scared mess. People were waiting for her to fall on her face without Robert, she thought. And she damn near proved them right by retreating to the Scardino family condo in Santa Fe, New Mexico, where she hid out and got stoned on prescription antidepressants.
About a month later, she gathered herself and returned to Houston, ready to see what kind of lawyer she'd be on her own. She started by practicing out of her house in Memorial, though she still shared a secretary, Susan Rutherford, with Robert. Every morning, Katherine would drive to Texas Commerce Tower. Susan would meet her at the curb and hand over work she'd completed the day before; Katherine would give her the work she'd need the following day.
Next Katherine would drive to the county courthouse in hopes of having a judge appoint her to a case. At first she didn't even know where to park; she'd been used to her assigned spot at Texas Commerce.
Many of her first appointments came from Eric Andell, then a juvenile court judge. "The juvenile system lends itself to [inexperienced] lawyers because usually the stakes are not that high," says Andell, now on the First Court of Appeals. "Katherine had great adversarial skills, but she also had good people skills and a good sense of what kids need or don't need."
Scardino took every appointment she could get. Juvenile, family, civil, even criminal -- the brand of law didn't matter. Within six months she moved into an office complex at 1300 Main, which she shared with some lawyer friends. Her space was so small that her desk barely fit.
To her amazement, she did fine. "Katherine doesn't believe she is as good as she is," says Elouise Charles, one of the lawyers who shared that space. "I never knew what a first-class lawyer she is until I saw her in court. Katherine is beautiful, of course, and that always helps some. But she is also very quick on her feet and a zealous advocate for her clients."
Katherine found that she loved criminal-defense work best; she loved the excitement generated by its high stakes. But she continued hustling any and all appointments and found herself practicing mainly family law, usually a low-profile area especially friendly to women lawyers. That's just the way it is, she says; any woman practicing solo has to take those cases to survive financially.
It was family law that cemented her bond with noted criminal-defense attorney Stanley Schneider. (Last year Schneider assisted attorney Mike Ramsey in winning a capital murder acquittal in the case of River Oaks bookie Robert Angleton. Ramsey also won a not-guilty verdict in a capital murder case shortly after the death penalty was reinstated in 1976. Last week attorney Dick DeGuerin also successfully defended Narit Burin "Archie" Bunchien against capital murder charges.Those three capital murder acquittals, and Scardino's in theDurrett case, are the only ones in Harris County since 1976.)
In 1993 Schneider was trying to avoid the temptation of taking lucrative divorce cases; it was nasty work, he thought, and he'd rather stick with what he does better. He hoped to bring a family-law practitioner into his Greenway Plaza offices, someone who could handle those cases. He asked Scardino if she would be interested. She was. The referrals would mean a steady stream of business.
Schneider enjoyed watching her in action, seeing "macho men" enter a conference room with Scardino and their own attorneys, then emerge, bruised-looking, a few hours later. "It happened all the time," he remembers. "She's aggressive, and she goes for the jugular if that's what's needed. She can also be compassionate and empathetic. She does what's needed to win the case."
Besides divorce work, Scardino picked up other assignments from her office-sharing arrangement, catching referrals from Schneider as well has his partners Troy McKinney and Tom Moran. Some, such as handling co-defendants on criminal cases, were in criminal law. She says that the on-the-job criminal-defense training she received in those cases was the best thing that ever happened to her.
If so, it's also the best thing that ever happened to Joe Durrett.
In April 1995 police discovered the bludgeoned bodies of two sisters, Martha Durrett and Linda Harrison, inside the Pasadena home they shared. Immediately Martha's estranged husband, Joe, became the prime suspect.
Two days before, Joe Durrett had been seen prowling around the women's home. He later told his mother that he'd seen the bodies through one of the house's windows -- something that investigators said was impossible because the window was covered with a blanket. A week after the bodies' discovery, he was charged with two counts of capital murder, and Scardino was appointed to represent him.
The strongest criminal-defense cases do two things: They discredit the prosecutor's theories and offer an alternative explanation of the crime. In Durrett's case, the evidence against him seemed especially shaky. Police based their charges partly on traces of blood found in his apartment and on a bloody clump of hair found in Martha Durrett's hand. A test by the Harris County Medical Examiner's Office determined that one of the hairs matched Joe Durrett's.
Subsequent tests, performed by Libby Johnson, the medical examiner's DNA expert, revealed that none of the hairs had come from Joe Durrett. Johnson also found that the blood in Durrett's apartment was his own.
It's the prosecutor's job to keep the defense informed of exculpatory evidence, but Scardino didn't know about those tests until Johnson's attorney, Dick DeGuerin, brought them to her attention. The Harris County District Attorney's Office responded by sending the samples to an independent laboratory. The lab concurred with Johnson -- but, again, the D.A.'s office didn't let the defense know. Scardino found out only in December 1995, after being informed by the judge in the case.
Following that revelation, the charges against Durrett were dismissed. But a year later, prosecutors filed the case again.
During the trial, Scardino questioned Johnson about her belief that the D.A.'s office -- specifically, lead attorney Craig Goodhart -- had attempted to distort and discredit her interpretation of her findings to support the charges against Durrett.
With the DNA evidence linking Durrett to the murder now in shambles, Scardino turned her attention to explaining who, besides Durrett, might have killed the sisters.
"She and [private investigator] Carl Kent would go out at all hours looking for witnesses," remembers Stan Schneider. "It was an amazing case of investigation and commitment. I think she ended up being paid about 50 cents an hour with all the time she put in on the case. She went beyond the call of duty."
Scardino believed that the killer might have been Clay Parmer, who conveniently turned up missing during the trial. In her closing argument, she mentioned "an incestuous relationship that turned into blackmail." The judge instructed the jury to disregard the remark -- Scardino hadn't shown a factual basis for it during the trial -- but of course jurors can't just erase their memories, and she succeeded in planting the seed of an alternate theory.
Scardino also hammered the prosecution for its attempt to discredit Johnson's DNA work. The jury bought the argument, and Durrett, amazingly, walked away a free man.
Assistant district attorney Chuck Rosenthal had taken over the prosecution after Craig Goodhart, the original lead prosecutor, was reassigned. Two years after the acquittal, Rosenthal belittles Scardino's talents and reports that in the D.A.'s office she's referred to as Turbo Bitch.
"I don't think she's all that good a lawyer," he says, "and she usually has a lot of people helping her. She has basically taken the position that anything that is initiated by the prosecution has to be inherently bad or evil."
Scardino, though, isn't sorry if she hurt a prosecutor's feelings during the Durrett trial. "I tried that case with no holds barred," she says. "I wasn't nice. I didn't mean to be nice."
But trying a case with no holds barred takes a toll on a lawyer, and Scardino didn't think she could do it again. The strains -- both financial and emotional -- were too great. After Durrett, she told herself, she'd never take another appointment for a capital murder case.
After Durrett's acquittal, Scardino moved into her own office, this one in a high-rise near Kirby and Richmond, and entered the ranks of the semifamous. She has made several appearances on Court TV's Cochran & Company, hosted by O.J. Simpson lawyer Johnnie Cochran. And her roster of clients is notable.
In 1998 Nobel laureate Richard Smalley, a Rice chemist, retained Scardino to represent him in the custody battle for his infant son. Scardino won the case.
Last fall she was less successful with a pair of celebrity clients: the parents of gymnast Dominique Moceanu. The 1996 Olympic gold medalist accused her father of squandering her prize money and, at age 17, demanded the right to manage her own affairs as an adult.
Scardino's side lost, but the lawyer still maintains they should have won. She describes Dominique as a "spoiled little girl." As for the teenager's relationship with her friend and adviser, Brian Huggins, Scardino asks, "How many 17-year-old kids do you know who run off to the Cayman Islands with a married man of 32 and they're not sleeping together? Give me a break!"
Still, those cases aren't the criminal-defense work that Scardino loves best. After the Durrett victory, she expected a surge in that caseload. It never came.
It's hard to say why. Obviously, when an attorney who hasn't specialized in criminal defense wins a watershed case such as Durrett's, the victory can be cast as a fluke; it can also incite professional jealousy, the kind that hinders referrals. (One up-and-coming defense attorney, who asked that he not be named, says this of her: "If I was arrested and I had a roll of quarters, I'd be pretty far into it before I called Katherine Scardino.")
And, too, there's the issue of Scardino's gender. In Houston, criminal-defense law is dominated by an elite few lawyers, attorneys such as Richard "Racehorse" Haynes, Mike Ramsey and Dick DeGuerin. Like most high-profile trial lawyers, they're flashy, macho types. And, obviously, pretty, blond Katherine Scardino doesn't fit that mold.
That's not to say she's uncomfortable in a realm dominated by men. In fact, she was one of the few women to testify on behalf of Judge Jim Barr, a friend accused of sexual harassment. Barr had motioned with an index finger for a female attorney to approach his bench. When she asked what he wanted, he told her that he just wanted to see if he could "make you come with one finger."
Barr, Scardino says, "has a special sense of humor" that was misinterpreted, blown out of proportion. "I'm not saying that what he said was not inappropriate," she explains. "But I'm from an era of women who are used to dealing with that sort of thing. I know that's not popular, but that's what we did."
Barr was removed from the bench. But shortly before his hearing, he asked Scardino a favor: to take the capital murder case of Calvin McGee. In the last few years, Harris County criminal court judges have made a special effort to make sure that capital murder defendants are represented by qualified attorneys; the judges don't want cases in their courts to be overturned on the grounds that a court-appointed lawyer was ineffectual.
Scardino, of course, had promised herself never to take this kind of court-appointed case again. She says she did it as a favor to an old friend.
After the jury convicted McGee, Scardino and her co-counsel, Robert Morrow, retreated to the Courthouse Club. Over coffee, they discussed their next move, how they'd handle the punishment phase of the trial, how they'd try to keep McGee from receiving the death penalty.
They'd already lined up witnesses to testify that McGee was physically and sexually abused and that he grew up in the depths of poverty. Then, according to their original plan, Morrow would do the closing argument, summing up those mitigating factors for the jury.
Over the weekend, Morrow told Scardino that she should do the argument. Despite her own history of abuse -- in fact, because of it -- Morrow believed Scardino could make the jurors connect with McGee. Scardino acquiesced reluctantly. After spending a week in trial with McGee, after a week of seeing his depressing life laid out in court, Scardino believed more than ever that he is a product of his environment -- and that he should not be put to death because of it.
The next morning, in the courtroom, Scardino asked the jurors to use this part of the trial as a stopping point, a place at which to pause and think about Calvin McGee's miserable life. If ever there were a case with mitigating circumstances, she said, this would be it: McGee is a living example of emotional abuse, physical abuse, sexual abuse and abject poverty.
"How can you expect someone to crawl out of that environment?" she asked. As she spoke, her gaze shifted slowly from juror to juror. Occasionally she gestured back toward McGee, who sat motionless with the same blank look that he'd had since the trial began. She pleaded with the jury. Scardino considers her own escape from poverty and abuse a matter of luck; McGee didn't get the same breaks.
This time, the jury deliberated a long time, long enough that Scardino and Morrow grew hopeful. But after eight hours, their hopes were dashed. The jury sentenced McGee to death.
Two days later, Scardino still looks tired. She's suffering from back spasms. And she can't sleep at night, not during capital murder cases. She doesn't seem to have had a solid night's sleep since McGee's sentencing.
McGee's was her fifth capital murder case. Of the four previous ones, she'd gotten one dismissal, one life sentence, one hung jury and one outright acquittal. McGee is her first client sentenced to die.
She used to believe in the death penalty. These days, she says, she's not so sure: "It's the people who don't have any money, who are not as fortunate as other people, who wind up on death row."
She'll move on, of course. In April she has a whopping 12 family-law court dates, and there are more guest appearances scheduled for the Johnnie Cochran show.
But more surprising is this: She has accepted yet another court-appointed capital murder case, this one in Brazoria County. It's a favor to attorney Jimmy Phillips, her significant other, who wants to work a murder trial but isn't state-certified in capital cases.
Scardino says this capital murder trial will be her last. But then, she has said that before.
E-mail Steve McVicker at steve_mcvicker@ houstonpress.com.
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