by David R. Dow
The local TV news stations were filming the proceedings from beginning to end. The lawyer for the state was the elected district attorney, and he was putting on a show. He played a CD-ROM of the conversations between the two Broxton brothers. The conversations had been transcribed. He handed me a copy of the transcript, and read aloud several lines of dialogue. He did so, mimicking the patois of the Broxton brothers. Even by East Texas standards, it was appalling. I stood up and said, Excuse me, Judge. I would like the record to reflect that the district attorney is no longer speaking in his natural voice, but is trying to sound like my client and his brother. The fact that he is failing miserably at sounding like either one of them does not make his effort any less offensive.
The judge had been checking her e-mail or playing Solitaire or doing something on her computer, and she looked up, baffled. She said, Is that an objection?
I said, Not really. It is a simple expression of moral outrage.
She stared at me and said, Treating it as an objection, the objection is overruled.
The district attorney smirked. He immediately resumed his effort to sound like a brother. I started to rise from my seat again. Gary gently put his hand on my arm and, in a whisper, told me to count to ten. I said, I’m already up to thirty-seven and it isn’t helping.
This is the reality: When you know that you are not going to succeed, and that your client is going to die no matter what you do, and that it does not matter a whit whether the facts and the law are on your side, you can either do nothing and accept defeat, or modify your definition of success, but what you also have to realize is that even if you choose the latter route and opt to redefine the meaning of winning, and therefore count it as a small victory (for example) when you don’t sit silently by while a district attorney puts on his black face and carries on for the cameras with an egregious display of overt racism, your client is still going to get escorted into the execution chamber, strapped down to the gurney, and put to death.
There are some philosophers who say that we create the world we live in with our language. I am sorry to say that that is not how it works. Reality is a relentless and crushing force, and it cannot be thwarted or outrun with a lawyer’s effete semantics.
I told Lincoln that I’d try to help the person I was going to see, and I headed for the prison.
AN ALABAMA SONG was playing on the radio. It reminded me of when I had picked up Lincoln from Rachel’s house after a playdate six months before. Alabama was singing about how angels come down from heaven to visit us when we’re sad. Lincoln asked me to play it again. I told him I couldn’t because it had been on the radio. He downloaded it from iTunes as soon as we got home and sat in front of his computer listening to it, over and over. When Katya called him to dinner he said, This song brings tears to my eyes.
I’d never seen him so morose. Katya gently pressed him to tell us why he was sad. He said, It’s because I don’t have any courage.
Yes you do, amigo. You have plenty of courage.
It’s not true.
His lower lip trembled like he was about to start crying. But he didn’t. Katya said, Lincoln, why do you think you don’t have any courage?
He said, Rachel was sad. I don’t know why. I could tell she was sad, and I didn’t have the courage to say anything to her.
Katya said, Sometimes it’s hard to talk to someone who’s sad, isn’t it?
Yeah.
Well, Lincoln, no matter what you say, if you are trying to make that person feel better, she will appreciate it. Do you understand what I mean?
Yeah. Thanks, Mama.
THE HOLDING CELL has a distinctly medieval feel. It is damp and dark and gray. There is no TV or radio, but there is a rotary-dial telephone on the concrete floor that might have been new in the 1970s. To get to the place where condemned prisoners spend the final three hours of their lives, you pass through two electronically controlled doors. Then you exit the prison through a heavy steel door that opens with a key that is eight inches long. The warden’s assistant, the key dangling from her neck as if she were a character in a Dickens novel, escorted me across a small courtyard, really just a rectangle of grass surrounded by concrete walls, and knocked on another door like the one through which we just passed. A guard inside peered through a slot covered with Plexiglas and visually identified my escort and me. Then he opened the door with another giant key. The warden’s assistant left, and I was standing in an L-shaped, windowless area.
The base of the L is the actual holding cell; the rest is a short hall where the three guards stood and watched over Green. To my right, as I faced Green, was another steel door that looks like it belongs on a submarine. It is the entrance to the room where inmates die. The holding cell itself has two walls of cinder block, and two walls of steel bars covered with a mesh that looks like chicken wire. A metal cot is bolted to one wall, and there is a stainless-steel toilet. It is five steps long and two and a half steps wide.
Green was sitting on the cot, inhaling through his nose and exhaling loudly through his mouth. Beads of sweat covered his forehead and his upper lip. For a brief moment I thought he had not heard me come in. The three guards lingered off to my left standing next to a small table, talking in low voices that were not quite a whisper. On the table was a plate piled with french fries and a second plate with a slice of pie covered with whipped cream from a can. There was a squeeze bottle of Hunt’s ketchup and a plastic cup with what looked like lemonade. Green looked at me and said, Hey. Just then the phone rang. A guard picked it up, spoke briefly, and handed it to Green. Green said, Uh-huh, uh-huh, okay, and handed the receiver back to the guard. He said to me, That was Mr. Roberts. I got turned down.
When my clients ask me to, I watch them die. When they don’t, I sit in my office until the courts and the governor’s office have all turned down our final requests for relief, then I close my door and call my client, just like Mark Roberts had just done. I make notes to remind myself not to say certain things, like Talk to you later, or Take care, or See you around, or any of the other meaningless expressions that pepper our everyday discourse and that become suddenly full of meaning when they aren’t true and can’t possibly be. I found myself standing next to Green with no Post-its to remind me what not to say and no script of what I wanted to cover. I said, I’m sorry. Green leaned forward and held his head in his hands. I wanted to be outside. I said, I just wanted to come see you to say thanks for trying to help me.
He said, All right.
I had no idea why I was there. Did I expect Green to say he had been making it up? Or maybe I hoped he’d reveal some proof that he wasn’t. What was I thinking? I got the attention of one of the guards and nodded toward the door. I said to Green, You have any messages or anything you want me to pass on to anyone?
He said, My old man used to beat me with a switch. Made it from a peach tree we had in the yard. He said he liked to use peach wood ’cause it left big ol’ welts. Mr. Roberts asked him how come he didn’t never beat me with his fist. He said ’cause he didn’t want to hurt his hands.
The guard put the giant key in the lock. Green said, Everything I done tol’ you is the truth. I swear to God.
There’s an old joke among death-penalty lawyers. Once you’ve killed somebody, swearing to tell the truth, so help you God, doesn’t pack quite the same punch it did before. I said, I appreciate it.
He said, Henry Quaker didn’t kill nobody. I know that for a fact.
I said, Thanks again, Green. I’ll see you down the road. He didn’t look up.
The guard opened the door, and I walked out into the twilight chill.
A SMALL GROUP of death-penalty opponents stood outside the prison, twenty or twenty-five people in all, a few black, the rest white. Each person held a small candle. Some had posters with the usual clichés: Why Do We Kill People for Killing People to Show That Killing Is Wrong? Et cetera. I nodded at several I knew. Brigitte walked over and asked whether I was representing Green. I said no. She aske
d whether I thought he would get a stay, and I told her they were moving him from the holding cell to the execution chamber at that very moment. She works in the French consulate’s office and is genuinely perplexed by the death penalty. She squeezed my forearm and said, This is terrible. Will you come stand with us?
Protesting against the death penalty in Texas takes a certain passion I do not have, or maybe what I lack is courage. The fraternity boys at the university across the street heckle the demonstrators and occasionally throw bananas and paper cups filled with warm beer. Sheriff’s deputies ticket their cars and threaten to arrest them if they chant too loudly or get too close to the yellow tape. My friend Dave Atwood spent the night in the Walker County jail after someone jostled him and his right foot momentarily crossed the police barricade. I stood several feet behind them, not part of them, feeling alienated, I suppose, and watched the minute hand of the clock on the prison tower slide toward six. At nineteen minutes past, the prison spokesperson came out. She reported that Green shook his head no when asked if he had a final statement, that he glanced briefly at his wife, and then stared at the ceiling as the injection began. He coughed twice, and was pronounced dead at 6:11 p.m. Another witness who covers executions for the local paper stood at the podium next. He said that the reporters could see bruises on Green’s arm and could hear Green saying, This is torture, before he lost consciousness. As another reporter stepped up to the lectern, I got in my car and drove off.
When I walked in Katya was in the kitchen. She asked how it went. I shook my head and asked her to tell me about her day instead. I went upstairs and kissed our sleeping son. I threw my clothes in the machine and got in the shower. When I came back downstairs, Katya was tossing a salad and heating up leftover red beans and rice in the microwave. Most death-penalty lawyers I know are married to other death-penalty lawyers. I’m glad I’m not. I am opposed to death. I want to come home and be far away from it. I asked Katya whether she had TiVo-ed American Idol. I said, Let’s carry our plates in and watch, okay?
She held my head in her hands, each hand cupping an ear. She kissed me and said, Sounds good to me.
IN MY DREAM I thought I heard a noise. I went downstairs to investigate. The wind had blown open the kitchen door. I drank a quart of water from the refrigerator, and the light blinded me. When I turned to go back upstairs I tripped over Lincoln’s stool. I’d told him dozens of times to put it away. I went upstairs and woke him up. It was nearly 3:00 a.m., and he had been sleeping deeply. He looked at me and then at the clock and said, Huh? I made him follow me into the kitchen. I asked him why he thought I had brought him there. He said he didn’t know. I asked him again. I told him he was a smart boy and he could figure it out. I waited. He said he didn’t know, and he started to cry.
I said, You left the goddam stool out again. I could have tripped and broken my neck.
He said, I’m sorry, Dada.
I said, Put it away.
He started to push it into the closet but a wheel had come off and it would not roll. He tried to pick it up, but it was heavy and unwieldy and he dropped it. It landed on my foot and sliced open my big toe. I said, Shit, and slumped to the ground. I grabbed some ice and wrapped it in a towel. Lincoln asked whether I was okay and I said no, but he didn’t seem concerned. I told him that it hurt a lot. He rubbed his eyes and said he was sorry. But he didn’t mean it.
I wanted real remorse from him. I stood up so I would tower over him. I raised my voice. I said he had really hurt my foot. I told him to look at me when I was talking to him. I said that when you hurt someone you have to apologize. I said that when you apologize you have to mean it. I said that I know that accidents happen but you need to take precautions to try to avoid them. I told him that he needed to be more careful, that he needed to put away his things, that when he hurt someone he needed to be sincere.
I was relentless. I wanted him to feel bad. I wanted him to cry. I knew at that point that it was a dream and that I was out of control, and I tried to make myself wake up, but I couldn’t. It was like a fat man was sitting on my chest. I was straining not to scream. I had that crazed, talking-through-one’s-teeth tone that people have when they’ve lost it but are trying to sound like they haven’t. But I couldn’t be kind.
He burst into tears. I had never understood that expression, but that’s what happened. He exploded with crying. His whole body was shaking. He was trying to control himself, to use the measured breathing we had practiced, and he couldn’t. He was shaking his hands, the way you would shake them in the cold to make them warm. He was saying, Dada, Dada, Dada. Again I struggled to wake myself up. I felt a fissure crack open inside my belly and a sensation like steam pouring out and I sagged to the ground. I hugged him. I told him that I knew he hadn’t done it on purpose. I kept saying that I knew it was an accident. I felt his tears on my cheek, but maybe they were my own. I squeezed him tighter, afraid it was too tight, and said that I knew he would not hurt me on purpose. I said, I just want you to be more careful, pal, that’s all. I’m sorry I shouted at you. He did not say anything. He wrapped his arms around my neck, like he was saving himself from drowning in my anger. I said to him, I’m sorry, Lincoln. I’m sorry. I’m sorry, sweet boy.
I felt him relax. I felt him trust me. I said, Hey how about if I hurt you to make it even? He said okay. I asked him to get me a hammer. We both started laughing.
Katya appeared. She said, What’s going on?
I said, I thought I heard something in the kitchen.
I bolted upright. I was clasping my pillow so hard that my arms were sore. In the distance I could hear a train whistle. Katya was sound asleep. I walked into Lincoln’s room and sat on the edge of his bed. I watched his eyelids flutter and his lips twitch.
I feel like I understand some crimes and criminals. I could kill someone who killed someone I love. I could rob or steal. But I’ve never understood people who can hurt children. Knowing how they get to be who they are is not the same as understanding.
I kissed Lincoln’s forehead and touched his cheek. I watched him sleep. At the parent-teacher conference we had gone to a month before, his teacher, who’s been teaching thirty years, said to us, Lincoln is possibly the happiest child I have ever met. She could have told us that he was smarter than Einstein and it wouldn’t have been as good.
I asked myself, How can I not spoil this beautiful boy’s happiness?
Katya came in and asked me what was wrong. I said, I broke my promise, and I was also a shitty dad. I told her about the dream.
She said, You’re kidding, right?
No, I’m not.
It was a dream. That doesn’t count. And anyway, even in the dream, you weren’t shitty. Maybe a little harsh, but not shitty. You’re not shitty just because you’re not always perfect. And as per usual, you melted as soon as he started crying.
I said, So you’re saying that I was harsh and imperfect up until I hugged him?
She said, Yep.
I said, That’s an awfully thin line between good and bad.
She said, Actually, it’s not that thin at all.
BEFORE LINCOLN AND KATYA headed back to Galveston the next morning, he and I went to get donuts. He said, Dada, which kind do you think I should get, one with sprinkles, or one with chocolate icing? I told him I thought he should get one of each. He said, That sounds good to me.
Standing below the drive-through window, where the parking lot emptied into the street, a strategically savvy panhandler was hoping to collect change from donut lovers who would find it easier to give away their coins rather than put them in a purse. He had on a pair of Walkman headphones and a fat watch on his wrist. I drove by him and waved. Lincoln said, I think that man would get more money if he wasn’t listening to his iPod and wearing a fancy watch.
Later that morning, we all sat in the conference room to iron out the narrative we would try to construct at the hearing that was ten days away. It had two strands. One was that there was no evidence at all that Q
uaker had committed the crime or that he should be on death row. The blood in his car had an innocent explanation, as did the life insurance. The fact that his gun had disappeared was curious, but hardly proof of murder. He did not have any blood or gunpowder residue on him when he was arrested. No one had seen him at the house. By all accounts, he adored his wife and kids. Mark Roberts had asked me how he could even have been convicted, and the answer to that question had two words: Jack Gatling. Quaker had a lawyer who was a burned-out case.
In theory, there is a presumption of innocence in the American legal system, innocent until proven guilty, but in practice, it is just the opposite. Juries trust the police and the prosecutors, especially when all the jurors are middle-class white folks, as they were at Quaker’s trial. They think that if someone gets arrested and goes on trial, there must be good reasons to believe that he did it. Quaker’s lawyer could have called the neighbors as witnesses and asked them whether they had ever heard Henry and Dorris fight. He could have asked them to describe how Henry interacted with Daniel and Charisse. He could have called Henry’s coworkers. He could have called a scientific expert who would have explained that Henry would have had blood or gunpowder residue on himself and on his clothes and in his car if he had committed the crime. But Jack Gatling did none of those things.
Nor did he challenge the state’s expert who single-handedly persuaded the jury to sentence Quaker to death. James Grigson is known as Dr. Death. He was expelled from the American Psychiatric Association as well as the Texas Society of Psychiatric Physicians, but that did not stop him from testifying in hundreds of trials. Grigson claimed to have examined somewhere between two hundred and four hundred capital-murder defendants—the number varied from case to case, because Grigson could not keep his answer straight from one trial to the next. But that did not stop juries from believing him. Sometimes he would not interview the defendants at all; other times he would visit with them for fifteen minutes or so in the county jail, asking them what they saw when they looked at ink blots. He would then sit on the witness stand for as much as five hours, telling jurors that the defendant before them would undoubtedly be dangerous in the future if not speedily put to death.