The Autobiography of an Execution

by David R. Dow

  Our motion for en banc reconsideration got to the court at three thirty. The clerk called us to confirm receipt. O’Neill was sitting in a van, on his way from the Polunsky Unit in Livingston, where death-row inmates are housed, to the Walls Unit in Huntsville, where they are killed. His execution was two and a half hours away.

  JEROME LEFT for the prison. He would deliver the news to O’Neill that we had lost, and then watch our client get executed. Kassie asked him whether he wanted her to go with him and drive. He thanked her and said no. He called at five, just as he was about to go visit with O’Neill in the holding cell. He wanted to know whether there was any news. I said there wasn’t. He said, That’s good, right? They would have denied us by now if they were going to deny us, don’t you think?

  Being a death-penalty lawyer requires constant delusion. You have to convince yourself that even though you hardly ever win, this time is going to be different. I said, Don’t get his hopes up.

  Jerome said, I don’t think it makes one bit of difference what I say to this guy.

  He had me there. I said, Well, if you see his parents, don’t get their hopes up.

  Fifteen years ago, before they changed it to 6:00 p.m. so that the guards could be home in time for dinner, Texas carried out executions at midnight. The death warrant instructed the warden to carry out the execution on a certain date, before sunrise. So the execution window lasted roughly six hours, from midnight until dawn. We represented an inmate named Lupe Hernandez. The day before his execution, the widow of Hernandez’s brother showed us a letter in which the brother claimed credit for the murder that our client was going to be executed for. We filed a last-minute appeal, on the day of the execution. After a flurry of skirmishes in the lower courts, we got to the Supreme Court around nine o’clock at night. At nearly five in the morning, there was still no word from the justices. Dawn would soon break over East Texas, and the death warrant would expire. At a quarter past five, a state court judge stayed the execution, with an opinion saying that the State of Texas should not carry out an execution while the highest court in the land was still considering the appeal.

  But inherent in that state court judge’s opinion was a point that gave me a chill as we waited for the court of appeals to issue a ruling in the O’Neill case: Unless a court or the governor granted a stay of execution, the warden could carry out the execution at any time between six and midnight. The fact that we had filed an appeal meant nothing. We needed the court to tell the warden that he could not go forward.

  At seven thirty there was still no word. Jerome had called half a dozen times, thinking that his cell phone must not be ringing. Each time I told him that the court had not called. In the office, we grew more hopeful. There would be no reason to take so long, if the court was simply going to issue its form-letter denial of our request.

  The phone rang at a quarter past eight. The clerk of the court and a lawyer from the attorney general’s office were on the line. The clerk said, I am calling to let you know that the court has instructed me that it will be taking no further action tonight.

  What? There were nearly four hours left in the execution window. We had gotten our appeal to the court five hours before. The judges had had plenty of time. How could they go home? I said, When will they make a decision?

  The clerk said, The court has instructed me that it will be taking no further action tonight.

  I said, Can we file a motion with the panel asking them to grant a stay until the entire court has an opportunity to rule on our motion?

  The clerk said, The court has instructed me that it will be taking no further action tonight.

  You have to beat me upside the head only so many times. I said okay and told the clerk good-bye, then told the assistant attorney general that I would call her right back. Gary said, I think we need to file in the Supreme Court.

  Kassie disagreed, saying we did not need to do anything. She said, They can’t kill him with our motion still pending.

  I was not so sure about that. We called the attorney general’s office. The lawyer handling the case was an experienced death-penalty lawyer named Eddy Martin. She said, I’ve spoken to my boss and the attorney general. We are going to advise our client not to go forward with the execution this evening.

  I said, Eddy, can you assure us that the warden will follow your advice?

  She said, No, I cannot.

  I said, We’ll call you back.

  I called Jerome and explained to him what had happened. I said, I need you to talk to the warden, or someone in his office, and find out whether he is going to follow Eddy’s recommendation.

  Ten minutes later he called back. He said, The warden’s assistant was very nice. She said that the warden wouldn’t talk to me.

  If death-penalty lawyers made a lot of money, this is where they would earn it. It was around nine. There were three hours left during which the warden could lawfully execute O’Neill. The attorney general’s office had told the warden not to go through with it, but we did not know whether the warden would listen. After all, he was holding a court order commanding him to carry out the execution. We had two options. One was to do nothing and hope the warden listened to a lawyer’s advice rather than adhering to a judicial order. I figured there was a fifty-fifty chance he would. The other was to file a motion with the Supreme Court and ask that Court to stay the execution. There were a couple of problems with the latter approach. One was an arcane legal problem having to do with on what basis we would ask the Supreme Court to intervene. Typically, when someone asks the Supreme Court to do something, the party making the request argues that the lower court got the wrong answer to the question. In our case, the lower court had not gotten the wrong answer; it hadn’t given an answer. There was, therefore, nothing to appeal from. Although I felt we could overcome that issue, the other problem was more pragmatic: If the Supreme Court refused to intervene, maybe the warden would interpret that refusal as authorization to proceed. I figured we had slightly under a fifty-fifty chance of getting a stay from the Court.

  Call heads or tails, I said to Gary. Let’s just decide by flipping a coin. He and Kassie stared at me. I said, I’m kidding.

  We decided to do nothing. I called Jerome to let him know. He said, What? Y’all are just going to sit there? I said that was the plan. He said, You want me to tell his parents? I told him that I would call them. I was not doing it just to be nice. I was doing it so that I had something to do.

  I filled a coffee mug with crushed ice and took it and a bottle of Jack Daniel’s and climbed out my window onto the fire escape. I called Katya and told her what was up. When I told her about the judges on the court of appeals calling it a day while our motion was still pending, she said, You need to file a judicial grievance. I told her I didn’t see what good it would do. She said, That’s not the point. You need to hold their feet to the fire. That is inexcusable. They shouldn’t be allowed to get away with not justifying themselves.

  I said, K, you’ve got a lot of spunk. But she wasn’t in a smiling mood. I told her I’d call when something, or nothing, happened.

  At ten minutes past midnight, Jerome called. They’re taking him back to Polunsky, he said. Jerome told me that the warden had called him just before midnight to ask him whether he wanted to say anything to O’Neill before they drove him back. Jerome went back to see O’Neill in the holding cell. O’Neill had ordered a half a gallon of vanilla ice cream as his final meal. It was served to him when he got to the Walls Unit at four that afternoon. When Jerome went to see him, O’Neill was drinking the vanilla ice cream with a spoon, like it was soup. Jerome repeated to me what O’Neill said: Tell that gentleman that you work with that I told him not to concern himself. His wings and his breath surround me. Please tell him I thank him for his efforts all the same. Will you kindly ask whether I can bring this ice cream back with me?

  WON AND ONE are homophones, spelled differently but pronounced the same, like two and too. My wife, on the other hand, says Juan
when she means won, and she says it like a Mexican. I make fun of this habit. When she asks how things went at Lincoln’s Little League games, I say, It was great. Both teams Juan. Lincoln always corrects me. (My pronunciation, that is, not my content. It is t-ball. Both teams did win.) Before I walked down to my car, I sent her a text. It read, Oui Juan. She called as I was driving home. I asked her what she was still doing up. She said, Waiting for you to call me. I told her the story.

  Lincoln was getting bored in Galveston. I told Katya that the two of them should come back to Houston for a few days. She asked whether I had a Plan B. This was a reasonable question. In the midst of futilely trying to save a client, I’ve been an asshole twenty or thirty times too many. I’m short-tempered and surly and altogether unpleasant to be around. Having client after client get killed can do that to you. But I was not going to be working on the Green case, and I was not yet feeling desperate about Quaker.

  I said, I promise not to be entirely impossible.

  She said, Pretty tall order, cowboy, but she still agreed they’d stay the week and leave the following weekend.

  I was going to be driving to the prison first thing the next morning to see Quaker, so I decided to get some groceries on my way home. At one in the morning, you pretty much have the supermarket to yourself. The only other person in the produce section was a tall, lean, Marlboro-looking middle-aged man wearing a belt buckle the size of a cantaloupe and brown lizard-skin boots. He squinted at me while he filled a plastic bag with fat jalapeño peppers. Did I know him? He was too old to have been a student of mine. He walked over and said, Did I see you on the news tonight? I told him I wasn’t sure. He said, Wasn’t you one of the lawyers fighting for that retarded man?

  There is always a point in my conversations with strangers where I have to decide whether to lie. This time I didn’t. I told him that I was.

  I’m accustomed to what was coming. Whenever my name is in the paper, I get a dozen e-mails telling me my client is a worthless pig, and I’m even worse. (Sadly, most venomous e-mails tend to lack much creativity.) But here’s the thing about living in Texas: It’s a big state. The man with the peppers shook my hand like we were old friends. He said, My papa was shot in front of me when I was eleven years old. It happened right there in the kitchen. He was drinking a cup of tea. When I joined a group to fight against the death penalty, it just about tore my sister up. She doesn’t understand it at all, but I just don’t think we oughta be doing it. I told her, After you kill the bad guys, you’re just as angry as you were before, but there ain’t no one left to hate.

  He was still holding my hand. He looked down like he’d forgotten about it, then he looked embarrassed and let me go and shoved his hands deep into his back pockets. He said, I didn’t mean to take up so much of your time. I just wanted to say I admire what you do.

  WHEN I GOT HOME, I fixed a turkey sandwich and carried it and a bottle of Shiner beer up to my room. The ten o’clock news was repeating, and they showed the picture of me that the man in the grocery store must have seen. The video had been shot in the morning, when we were working on the papers we thought we would file in the Supreme Court. The scene was fourteen hours old. I could barely remember it, like it was something that had happened years ago. People sometimes think I am younger than I am, because my hair is short and not too gray, and all I wear is blue jeans. But I noticed my hands gesturing for the reporter. Hands always reveal age. The skin was thin and papery, dotted with sun spots. Through the wrinkles you could see the veins, thick and green. I looked at my fingers and thought, This is pointless. Then I thought, I’ve been doing this too long.

  There is a relationship between those two ideas that I know to be true but that I will not acknowledge. There are certain truths in life you have to evade in order to keep being the person you have convinced yourself that you are.

  BEING AT THE PRISON the day after staving off an execution is the closest I come to being a rock star. Inmates sitting in their cages look at you as if you’re magical. Chaplains and nuns, holding the tattered Bibles that they read to murderers, greet you as if you’re Joshua. Parents and spouses and children of the inmates stare at you the way Auschwitz survivors stared at the Allied soldiers who came to liberate them. It makes me want to slink out and never return. Most blind squirrels starve. When you see one find an acorn, you can easily forget that.

  Quaker told me that he had dreamed about his family the night before. He was in a pit with smooth sides. He tried to climb out, but there was no way to get any traction. He sank down to the floor, shirt soaked with sweat, wondering where he was, and why. He looked up, and Daniel was peeking down at him from over the edge. His first instinct was to shout at Daniel to get away from the edge so he wouldn’t fall. Then he felt lightness and love, like he could float. Daniel dropped him a pair of platform shoes. Wearing them, he could press his feet against one wall and reach out to the other with his arms. In this fashion, he crawled up the sides of the pit. As he emerged, he saw Charisse, hiding playfully behind Daniel. He hugged them both and realized he was crying. He lifted his head and saw Dorris, wearing just a negligee, sitting in a bed. She said, Daniel, Charisse, can you two run off to your rooms for a little while and leave Daddy and me alone? Henry took a step toward her. He smelled her perfume. He woke up as the guard banged open the slot in the steel cell door and passed him breakfast.

  He said, It was the best night I’ve had in years. We sat quietly for nearly a minute, then he added, I heard yours was pretty good, too.

  I told him about the last-minute activity in the O’Neill case, and then I told him again about our plan for the hearing. But I had a bad feeling I had used up all my luck. Maybe he read my mind. He said, You remember that story I told you about when I was in the psych hospital in New Braunfels after the fire? I said I did. He said, I feel like that right now, man. My will is spent. I ain’t gonna tell you to give up or to stop what you’re doing, but if we lose, it’s okay. It really is. I’m ready to just be done with it, you know what I mean?

  I knew exactly what he meant, but I didn’t say so. Instead I said, I’m not planning for us to lose.

  WHEN I GOT HOME, Katya and Lincoln were there, playing a video game that I did not understand. Lincoln shouted, Dada, and came running to me. I kissed Katya and she hugged me tight, squeezing the air out of me.

  I said, Hey, be gentle with me, and Lincoln laughed.

  He went to the closet under the stairs and came back with our baseball gloves and a tennis ball. He said, Dada, can we play catch? I looked at Katya and she nodded. She said she’d go pick up Thai food while we were playing.

  The temperature had dropped into the upper forties, which in Houston is cold enough to justify a fire in the fireplace. Lincoln and I carried in some logs, and Katya put the take-out cartons on the coffee table in the library. I said, Hey Linco, do you want to try this chicken with basil and peppers?

  He said, In case you forgot, Dada, I’m a vegetarian. I told him I had not forgotten, that I was only kidding around. He said, Oh. Well, it’s not very funny. You shouldn’t kill animals to eat them.

  Katya said, What a guy.

  I said, I know it.

  And I thought to myself, I wonder if I disappoint him.

  FOR THE NEXT TWO DAYS, I went to my office at five so I could be home by eleven or twelve. Katya, Lincoln, and I rode our bikes, sat by the fire and watched SpongeBob, read books, went out to lunch, played board games, tossed the tennis ball, and saw some movies. On Thursday morning, as we were finishing our pancakes, Lincoln said, What are we going to do when you get home today, Dada? It was the day of Green’s execution. I told him that he was going to have to hang out with Mama today, because I had to go to the prison. He said, Are you trying to help some person? I told him that someone else was trying to help the man. I was just going to go visit him. He said, Why can’t you help him, too?

  It had been hard enough explaining to Lincoln that I try to help people who have killed somebody. It would be
harder to explain that, in truth, I can’t really help anybody. Last summer, Gary, Kassie, and I spent a week in East Texas, in the Arnold Broxton case. The only issue in the trial was whether Broxton is mentally retarded. There was no jury. A judge would decide. With an impartial adjudicator, it would have been a close call. Of course, with an impartial adjudicator, we would have been somewhere besides East Texas.

  Broxton’s IQ scores were right on the border of mental retardation, so the critical factor was whether we could produce evidence of what are called adaptive behavior deficits. People with mild mental retardation can live independent and productive lives, but they have limitations that result from their mental health. They cannot do certain things, like attend to their hygiene, hold a job, maintain a home, and the like. Lawyers prove that their mentally retarded clients have these adaptive deficits by calling witnesses who have known the inmate for a long time and can testify as to these limitations.

  Broxton has a younger brother. He would be our key witness on adaptive deficits. He had seen his older brother fail and fail again. He had worked with Broxton at a flooring company and he recounted, among other things, that Broxton could simply never learn how to lay tile. In the days leading up to the trial, Broxton and his brother had several telephone conversations. The sheriff’s office recorded them. At the trial, the state planned to use the recordings to prove that Broxton was aware of what was happening in his case and was therefore not mentally retarded.

  Now this argument is as moronic as it is a non sequitur. Mentally retarded inmates can often understand what their lawyers tell them, and we had told Broxton what the hearing was about, and how we were going to proceed. But that’s not the point of this story. Broxton and his brother had spent pretty much all their lives either in inner-city housing projects or in prison. Their idiom reflected that history. The language in their conversations was R-rated and coarse. Every other word was nigger-this or nigger-that. Broxton had been convicted of murdering a convenience store clerk; it was not a high-profile or an infamous crime, but we were in a small town, where every murder trial is a big deal, especially when the defendant is black. East Texas timber country is still a Klan-friendly place.