Cross: Kathryn Kase, Fighting Death In Texas

David Meyer-Lindenberg and I crossed Kathryn Kase, past-Executive Director of Texas Defender Services, now back to the trenches fighting Texas’ love of execution.

Q. Maybe unexpectedly for such a worldly person, you took your first step towards becoming who you are today as a journalism major at the University of Kansas. Previous Fault Lines interviewees describe KU as an oasis of calm in the middle of the insanity that is the Sunflower State. How’d you find it? Why’d you choose to go there? And why journalism, which can be a fairly gritty and thankless profession, especially if you do it right?

A. Kansas had a great J-school, terrific college basketball and, best of all, it was 9 hours away from home, which seemed a good distance for that first step into the world.

As for journalism, I entered college in 1978 and the Watergate hearings had made a big impression.  Journalists armed only with pens, notebooks, and relentless curiosity had brought down a president.  I wanted in on that.

Q. After graduation, you rode a bit south and wound up in central Texas, where you became a crime reporter for the now-defunct San Antonio Light, a daily afternoon paper. This was back in ‘82, when newspapers weren’t quite as, shall we say, “disrupted” as they are today. Was being on the crime beat as grim and noir an experience as you’d expect? Were you locked in a life-and-death struggle with other newshounds for gory photos of the victims, or tearful interviews with the family? In retrospect, was it a suitably cynical introduction to the life of a lawyer?

A. In fact, my first job after J-school was The Brownsville Herald, where I covered public education, which was ironic because The Herald was then owned by Libertarians who didn’t believe in public education. But they also didn’t interfere in my coverage, so I was able to write what I wanted until those stories got noticed outside Brownsville and I was hired away by the San Antonio Light, which immediately assigned me to the police beat from 3 p.m. to midnight, Wednesday through Sunday.

And I didn’t like it. I didn’t like the macho culture of the mostly male police department, I didn’t like how we in the media hyped the blood and gore of the crimes because we were competing with the other daily for scoops, and I especially didn’t like how nobody seemed to care if justice really was being done. Nobody really followed up to ask whether the cops had caught the right guy, whether their enforcement techniques did anything to stem the violence, and whether it made sense to seek the death penalty against what were predominantly poor and uneducated African American and Hispanic defendants.

Q. After a stint as the Light’s courthouse reporter, you chose to go to law school at St. Mary’s. What sparked your interest in law? (It can’t have been the glamour and adulation, can it?) Why’d you decide to change careers? (You later married the Light’s editor-in-chief, so we can pretty much rule out bad blood in the workplace.) Did you go in determined to become a CDL? To do crimlaw? Back in 1987, where was Kathryn Kase headed?

A. After covering all the hard news beats at the Light, I was bored with journalism and, this makes me sound like a twit, but I attended law school because I wanted the intellectual challenge. I figured I’d use the degree as an investigative reporter or editorial writer. But I got bitten by the trial bug and wanted to be in the courtroom, preferably as a constitutional lawyer. I soon understood you did that as a First Amendment lawyer or, better yet, a criminal defense lawyer.

Q. By the time you graduated, you’d gone fully over to the dark side: you even tried to get a job with the Bexar County DA! But when that didn’t work out (because the DA was a little leery about hiring someone with pull at the Light?) you signed on with San Antonio’s Oppenheimer, Blend, Harrison & Tate, now part of Strasburger & Price. Did you do primarily commercial work, like many associates, or were you given some criminal defense to sink your teeth into? Trial lawyer that you are, were you able endure being stuck behind a desk?

A. Oppenheimer, when I joined it, was a 40-lawyer firm that believed in hiring associates who could handle real responsibility. Associates in the Litigation section met with clients, we deposed witnesses, and we argued at evidentiary hearings. When one of the firm’s corporate clients was arrested at his office and charged with indecent exposure (despite having been across town at the time of the crime in a meeting with six other upstanding citizens), the firm assigned me and another associate to handle the case. We got it dismissed. It was only later that I understood that my friends at larger firms hadn’t gotten nearly the experience I did in those early years at Oppenheimer.

Q. Obligatory first trial question. What were the charges? Whom were you up against? Going in, were you confident you had the win in the bag? And were you right? Looking back now, with 25 years of experience to your name, what do you see that you could’ve done differently? Is there anything in retrospect that makes you cringe today?

A. My hazy recollection is that my first solo trial was in small claims court in San Antonio – over money owed to the client – and that after I won, the question was how to levy on the defendant, who we sued precisely because he was a deadbeat. The lesson? Don’t sue for nonpayment if there’s nothing to collect at the end.

My first solo criminal trial was in the Northern District of New York. It was an Illegal Re-Entry after Deportation prosecution, the government had an open-and-shut case, and I should have pushed the client harder to take the plea. Unsurprisingly, we came in second, as we say here in Texas. During that trial I learned that court reporters in New York will happily yell at you – in front of the jury – if you speak too fast.

Q. In ’93, the Light folded and you and your husband decided to strike out for New York, where he became editor of the Times Union. You hung out a shingle in Albany and became a solo CDL, but also took on your fair share of federal and state appointed-counsel work. The pay sucked, and New Yorkers, unlike Texans, aren’t exactly famous for their hospitality, but you absolutely exploded onto the NY criminal-defense scene. In no time, you were being celebrated for your performance in high-pressure, high-profile cases, had friends across town and were a shining success.

How’d you do it? Do some lawyers, those with the mad skillz, just thrive no matter where they put down roots? Can today’s pampered baby CDLs, who tremble at every microaggression and dread nothing more than having to be responsible for their own well-being, replicate your success? In general, were members of the profession tougher back then than they are today?

A. Journalism taught me to network and made me unafraid to ask questions when I don’t know the answers. These skills have brought great mentors and wonderful colleagues. When Gerry Goldstein, a celebrated criminal defense lawyer in San Antonio, heard I was moving to Albany, he said I had to meet Terence Kindlon and Laurie Shanks. I worked with them on several cases and they, in turn, introduced me to the rest of the criminal defense community in New York, including you, David Lewis, Jonathan Gradess, Ray Kelly, and a host of others. All of you were generous with your time as I developed my practice.

I also learned that if you want to establish a law practice with clients who can pay what you’re worth, those clients will come because of personal relationships – with satisfied former clients or trusted friends who also know you. That means you’ve got to shut down your phone, leave your office and meet people outside the office, perhaps by volunteering, joining a group like Rotary, or through bar work. Even though I’ve worked for a nonprofit organization for 15 years, I still get referrals to paying clients as a result of the work I’ve done with NACDL and NYSACDL.

Q. Culturally, Texas and NY are about as different as it gets. Practically, you were able to adjust just fine, and in 2000, you were elected President of the New York State Association of Criminal Defense Lawyers. In the same year, you made it onto the board of the state defender association. But in 2002, you gave up it all up and returned to Texas, this time to Houston, where you signed on as a staff attorney with the Texas Defender Service. How come? Homesick? Tired of Albany’s fabulous weather? Or was Texas simply more in need of someone with your criminal-defense skillz? Harris County, fine place though it is, hasn’t always been blessed with the most ethical of law enforcement. What were you there to accomplish?

A. I was the quintessential “trailing spouse.” We moved to New York when my husband was named the editor of the Albany Times-Union and returned to Texas when he became editor of The Houston Chronicle. After our return, two Board members at Texas Defender Service asked me to consider joining up as a staff attorney.

Although every death penalty case I’d handled in New York had settled for life or less, I was leery of doing this work fulltime, but this was 2002, the year the Supreme Court outlawed the death penalty for those with intellectual disability. I felt strongly about that and, so, I banked the money I intended to use to open a law practice and told myself I’d do death penalty work fulltime at TDS for two years. I’m obviously very bad at math because, 15 years later, I’m still here.

Q. The shift from New York, where there was no death penalty, to defending in capital cases in Texas was huge, and yet you not only made the change, but went on to climb the ladder at Texas Defenders to Executive Director from 2011 to 2017, and now its Director and Senior Counsel. How did that happen? Did you want to leave the courtroom to take charge of the organization? You’ve earned the respect and admiration of so many for your work as lawyer and ED, was this just the natural flow for you? Did you grow tired of the courtroom and want to put your efforts more toward managing the organization? Looking back, was this the right move for you?

A. I never intended to run the place and, much like my joining TDS, my period as executive director was an accident of timing rather than strategy. When I took over, first as an interim executive director, we were facing a financial crisis and had no reserve fund, which meant I had to lay off colleagues. It was awful. I stayed on as the regular ED at the request of the Board, but after five years, it was time to return to case work. What made the transition easier was that TDS is in the black and has a hefty reserve fund. So, now, when I wake at 3 a.m., I worry about clients and cases, not whether TDS can afford the deductible on its building insurance should a hurricane blow through Houston.

Q. You’ve done significant work on the intersection of mental illness and intellectual disability and the death penalty. While the Supreme Court has addressed these issues a number of times since Atkins v. Virginia, it doesn’t appear to have made nearly the impact on executions it should have. Why? What makes it so difficult to prevent the execution of the mentally ill and intellectually challenged? What needs to happen to prevent them from getting the death penalty? Are defense lawyers doing enough? Is the law clear enough? Are states, like Texas, just so bent on killing that they won’t be stopped? And why won’t the Supreme Court do its job and stay wrongful executions?

A. What outsiders – and in this I include the Supreme Court – don’t realize is how committed the Texas Legislature, elected prosecutors and elected judges have been over the years to the death penalty.  As a result, they tolerated its many flaws, refused to pay for competent defense, and affirmed death sentences without much concern. Today, that’s slowly changing and you see it in the reduction in new death sentences.

But fewer new death sentences do not make up for the constitutional errors that riddle the cases of men and women now on Texas death row. It’s extremely difficult to get the courts to take second looks at those cases, largely because procedural bar rules mean we kill forests of trees in habeas litigation debating whether an issue has been waived, rather than whether constitutional error actually occurred.

Q. Now that you’ve done your time as the Executive Director of Texas Defender Services, what’s next? Is it time to put your skills to use in the classroom? Is there another organization that needs your managerial brilliance? Or is it back to the trenches, trying cases and doing everything possible to keep Texas from killing another defendant? Or are you ready to put on the robe? Where does Kathryn Kase go next?

A. I’m happily back in the trenches. These days, I’m directing our Capital Trial Project, which means I work with a team that assists defense teams in high-risk death penalty cases. I do a lot of CLE teaching, but I also do a lot of basic work, including records digesting and motions drafting. I also have two habeas clients, Duane Buck and Scott Panetti.

And that money to start a private practice? It’s still in the bank. I don’t think I’m going to be touching it for a while.

10 comments on “Cross: Kathryn Kase, Fighting Death In Texas

      1. Jim

        Rock chalk, Jayhawk, KU!

        “The cheer became known worldwide. Teddy Roosevelt pronounced it the greatest college chant he’d ever heard. Legend has it that troops used the chant when fighting in the Philippines in 1899, in the Boxer Rebellion in China, and in World War II.”

          1. Billy Bob

            Why is this girl smiling? I don’t get it, for real. If you’re a PD or something along those lines, you do not want to be seen smiling? What is to smile about? This is a humanitarin disaster masquerading as a legal disputation. I do not get it!

            1. SHG

              Girl? That must be because she looks so remarkably youthful, but she is most assuredly a woman. And she’s smiling because, like all of us criminal defense lawyers, she does exceptionally serious work, but is still an actual person who enjoys the full panoply of emotions. Kathryn is one of the best human beings I’ve ever had the honor of knowing. When I think of her, I smile too.

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