by David R. Dow
Her right leg was crossed over her left. She said, Hmmm. She smoothed her skirt and brushed something invisible off. She stood up and said, Can you help me with my robe here?
CONTRARY TO OUR WORST FEARS, Judge Truesdale let us put on every piece of evidence we wanted. Maybe she really was bothered by the case. We called the insurance agent, who recalled that she had aggressively pushed a life insurance policy on Henry when he had been shopping for auto insurance. The custodian of records for Daniel’s pediatrician provided records that indicated that Daniel did in fact get frequent, spontaneous nosebleeds. Six guards said they believed Quaker was innocent and shouldn’t be executed even if he wasn’t. He was a model inmate, doing exactly what authorities asked him to. Detective Wyatt testified that he had interviewed Ruben Cantu because Cantu owned a truck with a license plate that could have meant it was the truck the neighbor saw in front of the Quakers’ house. He said he never took Cantu seriously as a suspect, because, so far as he knew, Cantu did not know the Quaker family, but he also conceded that he had not looked into Cantu’s alibi.
I did decide to ask him about having tested Dorris’s hands for gunshot residue. He said it was routine. I said, Was it routine because you found a gun near her body? He said that there had not been a gun near the body. I said, So you thought she might have shot and killed herself and then disposed of the gun? The district attorney objected to that question and Judge Truesdale ruled in his favor and told Wyatt not to answer, but I was happy about that because I didn’t want to trade this trivial battle for the bigger war. I just hadn’t been able to help myself. I looked over at my team, making sure there wasn’t anything I’d forgotten to cover. I noticed Henry. He was barely suppressing a glare. I had to turn away, like he was a flaming sun.
Henry was sitting between Kassie and me. Jerome and Gary were right behind us. The guards prefer that when death-row inmates are in court, no one is sitting between them. I asked the guard whether he wanted me to change places with Henry. The guard folded his arms and shook his head. He said, Nah. Far as I’m concerned, he can stay right where he’s at.
We had a tussle over Green’s sworn statement. The hearsay rule prevents people from saying what other people supposedly said. The idea behind the hearsay rule is that the best evidence of whether someone said something is to ask her directly, rather than allowing someone else to give a secondhand report. But there are exceptions. Green’s claim that he paid Cantu to kill Tricia Cummings was admissible under a doctrine known as a statement against interest. Because Green was saying something that incriminated himself, the judge could consider it. But his statement also reported what Cantu supposedly told him—that Cantu had mistakenly killed the Quaker family, and that he had left a gun there to make it look like suicide. That was hearsay, and the district attorney strenuously fought to keep it out of the record. In the end, the judge decided that she would think it over, and we did not really care what she decided, because either she believed Green or she didn’t, and I was clinging to the hope that what she believed about what had happened would mean more to her than what she thought the rules of evidence allowed.
She asked us if we wanted to make a closing argument. We did. The prosecutor went first. He pointed at Quaker and said, Your Honor, a jury found this man guilty of murdering his wife and his two children. He turned and stared at Henry, and Henry looked back. He had a serenity to him, like he wasn’t entirely there. I thought how Lauren Bacall reacted in To Have and Have Not, when the Vichy officer took her passport and slapped her in the face. Later, Humphrey Bogart told her that she hardly blinked an eye. I think it was because her hatred was tempered by understanding. At least that was how I interpreted Henry’s stare.
The prosecutor reminded the judge that someone who has been convicted cannot overturn his sentence unless he can prove that every reasonable person would think he is innocent. We were nowhere close to satisfying that standard, the prosecutor said. There were any number of reasons—the insurance money, the blood in the car, the fact that Henry’s marriage was in trouble—to believe that he might have done it. If there was any reason to believe he might have done it, the judge’s hands were tied.
Everything the prosecutor said was correct. The law might not have been on our side, but principle was. When it was my turn, I reminded the judge that the only reason Quaker had ever been convicted was that his lawyer was so bad. I stuck to our story: that the evidence of guilt was massively underwhelming, and that there was good reason to think that Cantu had committed the murders.
Judge Truesdale said, I sure would like to hear from Mr. Cantu. Where is he?
I said, I’d like to know that, too, Judge.
We’d gotten Cantu’s DNA off the orange juice carton, but he was not in any police databases. He could have been dead, back in Mexico, or living next door.
She banged her gavel, and we were done. We stood as she walked out. As we were packing up our files, one of the guards who would escort Henry back to death row came over and said to me, Good luck, sir.
WE’D GOTTEN A SHORT LETTER from Walter Buckley. He was scheduled to be executed in two days. He had sent it two weeks earlier but it took awhile to reach us because he had misspelled literally every word in my address. He was not my client. He was being represented (using that term in its loosest possible sense) by Karl Christianson, a notoriously inept lawyer. Under a Supreme Court case called Atkins v. Virginia, the states are not permitted to execute people who are mentally retarded. It was difficult to figure out exactly what Buckley was talking about, but it seemed he was writing to say that his lawyer had never raised an Atkins claim. If true, this was an unimaginable dereliction. One criterion of mental retardation is an IQ of 70 or below. According to our database, Buckley had an IQ of 54. Based on his letter, I would have thought it was even lower.
As usual, Jerome felt like we needed to do something. I felt like we couldn’t. Quaker’s execution was a week away. And even though we had already written everything that I expected we would need to write, you never know. Things always come up. We didn’t know how Judge Truesdale was going to rule, and if she ruled tomorrow, I’d want to turn our attention immediately to appealing if we lost, or to holding on to our victory, if we won. I also wanted to meet with the members of the Board of Pardons and Paroles, who had the power to recommend that Quaker be released from prison, or at least moved off of death row, and to talk to the governor and the warden. We couldn’t be jumping into a case about which we knew almost nothing less than forty-eight hours before an execution. I said so.
Presaged by the envelope, virtually every word in Buckley’s letter to us was also misspelled. He used quotation marks apparently at random and no punctuation except commas, again seemingly randomly placed. Maybe he was retarded. Maybe, too, Christianson had raised an Atkins claim, and Buckley didn’t realize it. Who knew?
Jerome said, Is it okay for me at least to call Christianson and see if he raised the claim and get whatever records he has?
You don’t have to be hard-hearted to do this work, but you have to develop some defenses. We can’t save everyone. We can’t even try to save everyone.
I said, Sure. Go ahead.
MY BROTHER STEVEN was in town for the day on business, and he had brought with him his daughter Hannah, who is Lincoln’s age, so the two cousins could play. I got home an hour before they would head to the airport. The kids wanted to have a relay race against the dads. The rules were numerous, if not complicated. In good nature, I repeatedly violated one rule. I was just clowning around, but seven-year-olds don’t always laugh at the same things I do. Lincoln began to get angry and raise his voice. He told me not to cheat. I told him not to scream at me and promptly cheated again. He raised his voice again. I told him that if he did it one more time the game was over, and I cheated again. His entire body tensed up and he shouted at me, Stop cheating, Dada.
I said, That’s it. Game’s over, amigo. Tell Hannah and Uncle Steven good night and go get ready for bed.
/> Dada, you’re being too hard on me.
I pointed toward his room. He stormed up the stairs. I walked into the kitchen and poured myself a drink. Steven followed me in while Hannah stood by the front door. I asked whether Hannah would be disappointed if they left without finishing the game. He said, She will be, but don’t worry about that.
Steven and his wife have three children. Hannah is the youngest. I asked whether he thought I had been too tough. Steven said, He seemed to me like he was trying to control himself. You got him pretty mad.
I said, He needs to learn to do what I say, no matter how mad he is.
Steven said, I agree.
I said, I’ll go upstairs and get him. We’ll be right down.
After we finished the game, and lost, of course, with me playing strictly by the rules, and after Lincoln had brushed his teeth and we had read a book and told a story and sung a song, I said, Amigo, I’m sorry I cheated and made you mad, but when Mama or I or Nana or one of your teachers tells you what to do, you have to do it, even if you don’t want to, and even if it makes you really mad. Can you try to do that?
He said, I’ll try, Dada. But it’s hard sometimes. I told him I knew, but I wanted him to try hard. He said, Okay, I will. Will you sleep with me for five minutes?
I’m no expert on the Holocaust, but I do know that one group of scholars blames the tragedy on an essential feature of the German personality. Katya and I have discussed this, of course. When we were in Germany visiting her relatives, she pointed out to me all the ways that Germans defer to authorities that Americans do not even notice. Once, riding the train from Manhattan to New Haven, she commented on how the riders were oblivious to the conductors as they walked through the cars asking for tickets. On German trains, the riders treat conductors like they are lords. It’s the uniform.
Which is worse, too much deference, or not enough? How do you insist to a child that he do what others say, without raising him to be an adult who says he had to do what he did because someone told him to?
TEN HOURS BEFORE Buckley’s execution, at eight o’clock on Thursday morning, Jerome walked into my office with a sheaf of papers and reported that Buckley had dropped out of school in the seventh grade, that he had taken three IQ tests and scored between 53 and 59 on all of them, that he had never been able to live by himself, that three doctors, including one employed by the state, had deemed him mentally retarded, and that, in spite of all that, his lawyer, Attorney Christianson, had decided not to raise a claim that Buckley’s retardation made him immune from execution. I asked Jerome why not. He said, Christianson told me that when he went to visit Buckley, Buckley just didn’t seem that slow.
Kassie and Gary were doing research to determine whether there was some way that Judge Truesdale could call off Quaker’s execution in a way that would not allow the state to appeal to a higher court. I called them into my office, and the four of us debated. It wasn’t much of a debate. I was the only one suggesting that we were too busy to do anything, and that there wasn’t enough time besides, but it’s hard to be passionate in advancing the proposition that we should stand idly by and allow the state to execute someone who the Constitution says can’t be executed. They overruled me again.
The harder question was what to do. I wrote three lines on the whiteboard in my office: the Supreme Court, the federal court of appeals, state court. The problem with the first option was that the last time the Supreme Court ruled in favor of someone who had used the legal device we would be forced to use was in the 1930s. We’d spend a lot of time writing with virtually no prospect of victory. I scratched through it. The problem with the court of appeals was even larger. Many of the judges on that court are an embarrassment, and I was still thinking about the way they had gone home the night of O’Neill’s scheduled execution. In addition, federal law mandates that, with few exceptions, inmates present their legal claims to state court before proceeding to federal court. I knew we couldn’t satisfy any of the exceptions in Buckley’s case, and I couldn’t even think of a decent argument for saying that we could. State court is what we were left with.
But even getting in to state court would be a challenge. We had to present significant evidence that Buckley was in fact retarded, and we had to explain why it took us so long to locate the evidence. Proving he was retarded was not going to be the problem. Explaining why we were coming forward with the proof only hours before the execution was. The truthful answer is that the court-appointed lawyer who had represented Buckley for the past two years had not done his job, but that is not a winning answer. Under federal law, Buckley did not have a constitutional right to have any lawyer at all. Therefore, even if Buckley’s lawyer was comatose, he still got more than he was entitled to. I told Gary, Kassie, and Jerome to divide up writing the part of the petition that would lay out the evidence of Buckley’s retardation, and I would try to come up with some explanation for why we should be allowed to raise the claim at this, the eleventh hour.
The federal courts accept emergency pleadings by e-mail. The state court does not. We have an office in Austin, where the court is located. We let them know that we would be sending them the Buckley petition later that afternoon. They would make a dozen copies and run them across town to the court. At two that afternoon I finished what I was working on and asked Jerome to send me what they had. I made some revisions, combined our two parts into a single document, and sent it back to Jerome, so he and the others could put it in the proper format for filing. Actually, what I should say is that I tried to send it. It wouldn’t go through. Our whole computer network had crashed.
Initially I was calm. I called Austin and told them to call the court and let them know we might be a few minutes late. It was nearly four. Austin called back. The clerk of the court had said that they close at five on the dot. I didn’t have time for this. Gary was trying to get our computer system running. I screamed at Kassie to deal with the clerk. She called the court of appeals again and insisted that the clerk tell his superiors that we were planning to file something for Walter Buckley, who was scheduled to be executed in two hours, that we had finished writing it, and that we were experiencing catastrophic computer failure, which was delaying our delivery of the petition. He called her back and said that the presiding judge of the court said that the court closes at five o’clock.
At four thirty Gary got everything restored. It was going to be close. We e-mailed the document to Austin. Including exhibits, it was 107 pages long. They printed it and made the required copies. They called the court to let them know they were on the way. The clerk answered. It was not quite ten past five. He said, The court closed at five. The paralegals drove over anyway. The door was locked, and no one came to open it when they banged.
We had a problem. It was almost five thirty, and the papers that we had been working on for the Supreme Court were based on the assumption that we had lost in state court, not on the assumption that we had never managed to get anything filed in that court. We couldn’t file an appeal from the state court’s decision, because there was no state court decision. I won’t bore you with the details of why this is a complicated problem, but it is. So I quickly wrote something up, asking the Supreme Court to issue a stay of execution, promising the justices that we would get something filed in the state court the following day. I knew as we were e-mailing it to the Court at minutes before six that it had all kinds of technical legal problems, but I hoped they would not matter, that what the justices would focus on was the fact that Buckley had an IQ score somewhere in the mid-50s. But hope is an impotent indulgence. One day soon, I swear, I am going to give up on it completely. The justices unanimously turned us down.
By the time I called Buckley to tell him the news, at a few minutes after six, they had already strapped him to the gurney. I did not get to tell him that our pleas had been turned away because the judges do not really care about principles or justice. I did not get to tell him that we had tried, and that I was sorry. I did not have to tell him
that if our office had state-of-the-art computers, he would have lived to see another day.
Gary came into my office. His eyes were swollen. He said, This is my fault. I should have replaced that server six months ago.
I said, Pal, there is a long list of people whose fault it is, including nine in Austin and nine more in Washington, and your name is not on it.
I called Katya with the news. I asked her to put Lincoln to bed without me and told him a story over the phone. I gathered up the team and we walked next door to Cafe Adobe. We went through two pitchers of margaritas without exchanging barely a word. At nine I stood up, told them they were the best lawyers I knew, and that I’d see them in the morning.
ON THE SIDE of the freeway, a woman standing next to a pickup truck with a blown-out front tire was frantically waving her arms. I stopped. She had no cell phone and wanted to use mine to call a tow truck. I didn’t think I would feel comfortable driving away before the wrecker got there, so it seemed just as easy to change the tire. I pulled the truck as close to the shoulder as I could, turned on the flashers, and asked her to stand a ways up the road to wave people away from the shoulder. Twenty minutes later she was good to go. She had a folded-over stack of bills in her hand that was two inches thick. She said, Please, take this. Buy yourself dinner. I told her there was not a chance. She said, Please. I am going to feel terrible if you don’t.
I said, Ma’am, I promise you that I will feel worse if I do. She said thank you a half dozen times. Disproportionate gratitude, I believe, is always sincere.
I waited for her to drive off, then pulled onto the freeway behind her. At home I checked on Lincoln and told Katya the story. She became angry. She wanted me to file an official grievance with the judicial conduct commission. She wanted us to hold a press conference. I wanted to share her sense of outrage, but I couldn’t. I felt peaceful.