The Autobiography of an Execution

by David R. Dow

  Green said, We done? Faison said that we were. Two guards were immediately on either side of Green, holding on to his elbows as he rose from the chair. I stood up to leave. Green looked at Kassie and said, Thanks for the sodas. To me he said, I’m trying to help you here.

  LINCOLN PICKED UP the extension while I was talking to Katya. He said, Hi, Dada. Did you have a good day at the death row?

  I told him it was a sad day. He said, Oh. Well, guess what? Mama and I took Winona for a walk on the beach. It was really long. And even though it’s not very hot outside, Winona got so hot that she went swimming. And there was steam coming off her. And Dada, the water is freezing. I asked him whether he would be ready for another walk when I got to the beach. He said, That would be nice.

  Just as I was arriving at the cabin, at nearly five o’clock, Jerome called. He said, The judge ruled against us in O’Neill, and the clerk from the federal court of appeals called. They said that if we plan to file an appeal, it has to be there by five tomorrow.

  The next day was Saturday. I asked Jerome whether he was sure that was what the clerk said. He said, I can e-mail you the order if you want me to. I told him that I’d be at the office by noon.

  Upstairs, Katya was in the kitchen making cookie dough. Lincoln was licking the beater, and Katya was giving cherry-size pieces to Winona. I said, Looks like you guys will have enough energy for a superlong walk.

  Lincoln said, Yippee.

  I cut off the end of a cigar. When Lincoln, Winona, and I got outside, I lit it. Winona went running off ahead, chasing sand-crab smells. Lincoln said, Dada, please don’t smoke that.

  I said, Amigo, I don’t smoke very many anymore, and I like how they taste, and they help me to relax. Lincoln and I were holding hands.

  Winona circled back around to us. She had found a tennis ball. Her snout was covered with muddy sand. Lincoln said, Dada, if you smoke cigars you’re not going to be able to spend as much time with me.

  I said, You’re a smart kid, amigo. I held the cigar until it burned itself out.

  Lincoln said, Thank you, Dada.

  AFTER LINCOLN WENT to bed, Katya and I sat outside on the deck with a pitcher of margaritas while the steaks were on the grill. It was cold, but not uncomfortable. The sky was clear, and we could see Orion, Taurus, and, inside the bull, the cluster of blue stars known as the Pleiades. I told her about O’Neill and that I would have to drive back to Houston first thing in the morning. She said, Do you really think the judges will be working this weekend?

  I said, Of course not. This is their way of saying fuck you to us.

  We sat and looked at the sky. I said, I saw O’Neill this morning. He did not remember me at all. He was randomly quoting from the Bible. At least it seemed random. His dad knew it was from Isaiah. They don’t want to watch the execution.

  Katya lifted my right hand and put it in her lap. She said, In my astronomy class, I had to calculate the age of the Pleiades. The only time I could ever do math was when it involved the stars. I asked her how old they were. She said, I don’t remember exactly. I think one hundred million years or so. If it weren’t for Lincoln, that would change my perspective on the meaning of everything.

  I said, It’s funny O’Neill was quoting Isaiah. The Pleiades are mentioned in the Book of Amos. You who turn justice into wormwood, and hurl righteousness to the ground. Seems appropriate, doesn’t it.

  She said, I don’t know about Amos, but the Red Hot Chili Peppers sang about them. Wanna hear?

  I smiled. I’ll take a pass, gorgeous.

  She said, Why don’t you take the steaks off the grill and let them rest in the kitchen for a while?

  I said, That is the perfect idea.

  Later, while we were still lying in bed, I told her about the polygraph examination. Green answered yes when Faison asked him whether he had personal knowledge about the deaths of the Quaker family. He answered yes when asked if Ruben Cantu killed them. He answered yes when asked whether he had paid Cantu to kill Tricia Cummings. He answered yes when asked whether Cantu told him that he had killed the wrong person. He answered yes when asked whether Cantu had left a gun at the scene in order to make it appear that Dorris Quaker had murdered her children and then committed suicide. When I finished telling her about the questions and answers, she said, And? I told her that Faison would have a complete report later, but it was his opinion that Green was being truthful on all the questions. She said, I am not going to say I told you so.

  I said, Why not?

  She said, Because I’m starving, and I want you to bring my steak in here to me.

  AS I WAS PACKING my bag the next morning Lincoln said, Why do you have to leave today, Dada? I told him that I needed to try to help someone. He said, But it’s probably not going to work, right?

  I wondered whether he had heard me say that, or deduced it himself. He said, Won’t the person die anyway? I said yes, but that I still thought I needed to help him. He said, That doesn’t make any sense. Besides, why can’t his mom or dad help him?

  I said, Amigo, he doesn’t have anyone who can help him. You and I are very lucky. We have lots of people who love us and who would try to help us if we were in trouble. This man I am trying to help doesn’t have anyone. I think it’s important to try to help people who don’t have anyone. Don’t you?

  He was quiet for a minute. I asked him whether everything was okay. He said, Yes, I’m just thinking. I touched his cheek. He said, Dada, I’m glad you are trying to help that person, but I still wish you were staying with Mama and me for a little while longer.

  O’NEILL HAD BEEN PLACED in mental hospitals more than a dozen times, usually by his parents, a couple of times by the courts. In a layperson’s terms, he was crazy. But being crazy matters in different ways at different phases of the criminal justice system. At a trial, if a defendant is too mentally ill to aid his lawyers, then he is incompetent to stand trial, and so the government keeps him in a mental institution until he is capable of standing trial or dies, whichever comes first. If, following a trial, a jury finds that the defendant did not know the difference between right and wrong, then he is criminally insane, and he can’t be sent to prison, but he can be sent to a mental institution, until he is healed or dies, whichever comes first. If a defendant is not found insane and is sentenced to death, but he becomes crazy while on death row, then the state cannot execute him, so the person stays crazy in prison until he dies, or the state medicates him so he is not crazy anymore, and then they can kill him. Contrary to conventional mythology, being crazy is not a get-out-of-jail-free card, and life in the cuckoo’s nest isn’t all that different from life in the joint.

  The problem we had in O’Neill’s case, though, is that in 1996 Congress passed a law that basically makes it impossible for death-row inmates to challenge their convictions in federal court more than one time. When O’Neill went to federal court the first time, his lawyers did not say he was incompetent to be executed, because his execution was still years away. In addition to that, he had gotten worse and worse over the years. He might not have been incompetent to be executed when he first arrived on death row, but he certainly was now. We had already been to federal court, however, and we were not being successful in persuading the courts that they should allow us to come back. We were pinning our hopes on an obscure Supreme Court case that seemed to create an exception to the law for people who were raising issues that did not previously exist. The lower federal court was not persuaded, and we did not have much confidence that the court of appeals would be persuaded, either, but if the court of appeals wanted our appeal by Saturday afternoon, that meant they would probably rule against us first thing Monday morning, and we would have all day to get to the Supreme Court.

  Everyone was at the office when I got there. Most lawyers have the philosophy that they should try to win in whatever forum they happen to be. So if you are in the trial court, think about winning there, not in the court of appeals. If you are in the court of appeals, think about w
inning there, not in the Supreme Court. The problem with that approach for death-penalty lawyers in Texas is that the federal court of appeals with jurisdiction over our clients consists mostly of judges who are utterly unprincipled and hostile to the rule of law. They look for ways to uphold death sentences even where constitutional violations are egregious. In recent years, the court upheld a death sentence of a black inmate who was sentenced to death by an all-white jury after prosecutors systematically removed every potential juror of color from serving. It upheld the death sentence of a mentally retarded inmate after his lawyer, who was afflicted by Parkinson’s disease, neglected to point out the inmate’s IQ score. It upheld the death sentence of an inmate who was probably innocent on the ground that his lawyers had waited too long to identify the proof of innocence. It upheld the death sentence of an inmate whose lawyer had literally slept through the trial. These judges get to be judges not because they are wise, but because they are friends with their U.S. senator, or a friend of a friend. They are smart, however. That means they are very good at hiding their lawlessness inside of recondite-sounding legalese. They look for reasons to ensure that a death-row inmate will get executed, and they usually find one. And not very many people care. Do you care that the rights of some murderer were violated? Most people say that the murderer got treated better than his victim, and that pretty much sums up the attitude of the judges on the court of appeals as well.

  Justices on the Supreme Court are slightly better. They could hardly be worse. But the big problem with counting on winning a victory in the Supreme Court is that the justices are so inundated with cases that they don’t have time to be sticklers for principle, even when they are so inclined. Nevertheless, even an infinitesimally small chance of victory is infinitely greater than a zero chance. I told Jerome that we should write something cursory for the court of appeals, since we knew we were going to lose, and start working on writing a powerful appeal to the Supreme Court. Gary disagreed. He reminded me that the Supreme Court had recently agreed to hear a case from Alabama called Nelson, and that the issue in Nelson was very similar to the issue we were raising in O’Neill. Maybe, he suggested, we could ask the court of appeals to postpone O’Neill’s execution until the Supreme Court decided the Nelson case. I did not think it would work, but it did make sense. I opted for sensibility over probability. We wrote an appeal pointing out that even though the court of appeals had ruled against us in other cases raising a similar issue, the court should act differently in this case in view of the Supreme Court’s obvious interest in this issue. For good measure, we reminded the court how mentally disturbed O’Neill was. We sent the appeal to the court by e-mail at a quarter to five.

  SUNDAY MORNING Fred Faison called to let me know that he had dropped off his report at my office. I asked him for the Cliffs Notes version. He said, Anyone who trusts these machines will not find any deception in Mr. Green’s answers. I asked him what his report said. He said, It says that, in my opinion, Mr. Green’s claims of knowledge and responsibility for the murders of the Quaker family are truthful.

  I said, So you are saying that you believe my client is innocent.

  He said, I’m saying that I believe what Green said.

  Two days later we had polygraphed Quaker. I had not been there. Faison said he was telling the truth, too.

  Mark Roberts lived in my neighborhood. I e-mailed him and asked whether he had time to chat later that day. He called me a few minutes later and asked whether I’d had breakfast. I told him I hadn’t. He said, Let’s ride our bikes to the Breakfast Klub and talk there. Roberts had been a semiprofessional cyclist before he gave it up and went to law school. I told him I wasn’t sure he could pedal slow enough for me to keep up. He said, I just finished a seventy-miler. I was about to jump into the shower. You’ll be able to keep up.

  We both ordered waffles and wings. I told him our problems. There was blood from a victim in Quaker’s car. He had life insurance on his family. He was mentally unbalanced from the fire. A gun he owned had disappeared. Cantu was gone, and it probably wouldn’t matter even if he weren’t. Unless he was on death row somewhere, so that he didn’t have anything to lose, I didn’t see him clearing his conscience to save a guy he didn’t know. Kassie had found Tricia Cummings, the woman Green had supposedly wanted Cantu to kill. She had gotten married, changed her name to Tricia Davis, had a daughter, and died of a heroin overdose. She was buried in the Fourth Ward. That pretty much left us nothing but Green’s statement.

  Roberts said, How did they convict the guy with just that?

  He was right, of course. Daniel had frequent nosebleeds. Quaker had told me that, and the nurse at Daniel’s school verified it. The blood meant nothing. The life insurance also proved very little. The insurance agent gave Gary a statement that she had pressured Henry to buy it when he came to see her to buy auto insurance. It hadn’t even been his idea, and either he forgot he had it or had no interest in it after the murders, because he took no steps to collect the money. I said, His lawyer was Jack Gatling. Roberts nodded and chewed on a wing.

  He said, Listen, I’m sympathetic, but I think I’ve done everything I can at this point. I have a call arranged with Green for Tuesday. I’ll tell him that you and I have talked. I already said you can use his statement if he doesn’t make it to Friday, but if we catch lightning in a bottle, I don’t see how I can agree. He’ll be opening himself up to another death sentence. I’ll tell him that, and if he wants to fire me if he gets a commutation so that he can talk to you, then he can.

  I asked Roberts whether it was okay with him if I tried to talk to Green one more time on Thursday. He said, You mean while he’s in the holding cell? I nodded. He said, What? You figure he’ll be like Honest Abe thirty minutes before he gets the juice?

  I said, You never know.

  He said, This is why I don’t want my clients to be innocent. Too much pressure.

  I ate the last bite of my waffle and said, Do we have to ride back home or can we call a cab? He laughed, which I took to mean we were riding.

  JEROME SPENT THE NIGHT at the office on Sunday. When I got there just after seven on Monday morning, he was asleep on my sofa. I said, Hey, Little Red Riding Hood, you want some coffee? He sat up and apologized. He washed his face and came back into my office with the appeal for the Supreme Court he had spent the night writing. It was seventy pages. I said, This is too long. We’ve got to chop it down.

  He said, I know.

  I said, Good thing we have eleven hours.

  Considering that the court of appeals had had our petition since late Saturday afternoon, and considering that law clerks work long hours on weekends even though their judicial bosses do not, I expected that we were going to hear something from the court first thing in the morning. When neither fax nor e-mail had arrived by ten, I asked Jerome to call the clerk, just to make sure they had not sent something that hadn’t reached us. She said that the court had not yet announced a decision. Gary and Kassie went next door to pick up Vietnamese food. I sat at my computer, trying to work on the Quaker case, but I couldn’t concentrate on it, so I buzzed Jerome on the intercom and told him I’d take over editing the O’Neill appeal. He said he was almost finished, that it was down to fifty pages, exactly what is allowed. So I sat in my chair, bounced the Super Ball against the wall, and downloaded an Art Tatum song from iTunes.

  Kassie walked in and said, We’re eating in the conference room. My fortune says that all great battles are lost in the middle. I think it’s Lao Tzu. Do you think middle refers to the court of appeals? She smiled.

  I said, I heard it as all great wars. I thought you were going to the Vietnamese place.

  She said, We did.

  I said, I don’t think you can place much faith in a fortune cookie from a Vietnamese joint.

  She said, I think that might be a racist comment.

  At two o’clock the clerk called and told us the court had issued its opinion. They had e-mailed it to me. She asked whether I wanted
a copy in the mail. I laughed. No thank you, I said. The four of us stood in a semicircle, reading the pages as they came off the printer. We had lost, but we had lost in a very surprising way. There are eighteen judges on the court of appeals, but they sit in panels of three to decide cases. The rule on the court is that once a panel decides an issue a certain way, all the judges on the court, even if they were not on that panel, are required to decide the same issue in the same way, unless the court as a whole reverses the panel decision. The panel that decided our case seemed to have agreed with Gary’s argument that they should hold the case until the Supreme Court ruled in Nelson. But, according to the judges, a previous panel had decided a similar issue already, and so our panel was not at liberty to grant us the relief we were asking for.

  As I read the panel’s opinion, the judges were almost inviting us to ask the entire court to review the case. I said to the others, Does it seem to you all that they are asking us to request en banc reconsideration? We all pored over the opinion again.

  Gary said, If the panel does want us to request en banc reconsideration, and we don’t, how will that look when we appeal to the Supremes?

  I didn’t think our chances in the Supreme Court would be much affected one way or the other. At the same time, if we were right that the panel was nudging us to request that the full court of appeals address the issue, then maybe they had some inkling that the full court would grant our request. Otherwise, why propose a tactic that would just consume valuable time? I said, En banc reconsideration it is. We briefly discussed how to frame the argument. Gary and Kassie went with Jerome into his office, and an hour later they handed me a motion. I read it quickly, made a minor change or two, and said, File it.