by David R. Dow
The definition of lucky in life is a wife and son and dog like mine to come home to, and the good fortune to have not the slightest inclination or need to take a couple of hundred bucks a stranger is offering as compensation for doing a tiny act of kindness that any decent human being would do.
KATYA AND I both have five names on our lists. They are the celebrities we have given each other permission to sleep with, should the occasion ever present itself. All married couples have these lists, right?
Last winter a cab driver in Utah told me that her best friend and the friend’s husband had the same arrangement. Angelina Jolie was on his list. The week before, during the Sundance Film Festival, Jolie was standing in front of him at the Starbucks in Park City. He was a ski instructor in the winter and a raft guide in the summer. He probably made less than $25,000 a year. He told her that the latte was on him. I am clearly not the only delusional man in America.
Judge Truesdale called my cell phone. She invited me to coffee on Tuesday afternoon, the day before the execution. I was pretty sure Katya was wrong about her and I was right. Once we were watching a movie where a man called his wife to say he was working late. He went to a hotel with a client. When he got home, his wife, son, and daughter were eating dinner in the kitchen. He kissed his wife and then his children. Katya said, I could forgive you if you were to cheat on me, but if you kiss me when you get home afterward I’ll kill you. It was an empty gesture. There are two kinds of men: those who can cheat, and the ones who can’t. I’m not saying that either is better than the other. I’m just saying that Katya knew which group I was in.
When Ezekiel Green called me from death row on a cell phone he was not supposed to have, I didn’t want to know the terms of his barter. Now I did. Perhaps it is possible to be unfaithful without being disloyal.
IN 1924, CLARENCE DARROW saved Nathan Leopold and Richard Loeb from the gallows. The two young men had kidnapped and murdered a young boy named Bobby Franks, just to see if they could. Leopold and Loeb might not have been geniuses, but they were both supremely bright. Darrow made the astonishing decision to eschew a jury. His clients pleaded guilty, and Darrow threw their fate at the feet of the judge:
Your Honor, it may be hardly fair to the court. I am aware that I have helped to place a serious burden upon your shoulders…. I have always meant to be your friend. But this was not an act of friendship. I know perfectly well that where responsibility is divided by twelve, it is easy to say: “Away with him.” But, Your Honor, if these boys hang, you must do it. There can be no division of responsibility here. You can never explain that the rest overpowered you. It must be by your deliberate, cool, premeditated act, without a chance to shift responsibility.
What Darrow understood is that our system of capital punishment survives because it is built on an evasion. It permits everyone to avoid responsibility. A juror is one of twelve, and therefore the decision is not hers. A judge who imposes a jury’s sentence is implementing someone else’s will, and therefore the decision is not his. A judge on the court of appeals is one of three, or one of nine, and professes to be constrained by the decision of the finder of fact, and therefore it is someone else’s call. Federal judges say it is the state court’s decision. The Supreme Court justices simply say nothing, content to permit the machinery of death to grind on with their tacit acquiescence.
Darrow didn’t let them hide. He demanded that people who uphold the law take responsibility for their actions, especially when those actions are momentous. I think he was right. Jurors and judges who send someone to the gallows should be required to witness their deed and observe the execution. Every court of appeals judge who upholds a death sentence should have to visit death row and deliver the news personally. Supreme Court justices who refuse to grant a death-row inmate a stay of execution should have to deliver the news face-to-face to the inmate as he waits in the holding cell eight steps down the dank hall from the execution chamber, instead of having one of their law clerks call the inmate’s lawyer. If we are going to execute people in our society because we believe that it is an appropriate punishment for people who callously and irresponsibly take another’s life, then the people with the power not to execute ought to take responsibility themselves for imposing the punishment, or at least not negating it. It’s easier to kill somebody if it’s someone else’s decision, and if somebody else does the killing. Our death-penalty regime depends for its functionality on moral cowardice.
In Texas, the most gutless of all is the governor. If he wanted authority to decide for himself whether a convicted murderer should be spared, the legislature would give it to him in a heartbeat, but he doesn’t. He hides behind the jury, and behind the courts, and most of all, behind the Texas Board of Pardons and Paroles. The Board consists of seven feckless people who gave him a lot of money. The governor appoints them to six-year terms, and they do what they think he wants them to. If the Board recommends that an inmate be spared, the governor can go along with that recommendation or not, but if the Board votes against the inmate, then the governor’s hands are tied. Governors, like George W. Bush and Ann Richards, want the Board to turn the inmate down, and, through back channels, they let their cronies know that. Later, they stand outside the governor’s mansion and shrug their shoulders and say that the inmate received a fair trial, that it was reviewed by the courts, that his appeal for clemency was turned down by the Board, and that there is nothing they can do. Then they head off to dinner at the Four Seasons and talk about bearing the weight of permitting someone to die.
Is there any phrase in the English lexicon more immoral than There was nothing I could do?
But some people are changed by responsibility. Paul Brownwell, a cattle rancher in Giddings, was one of them. He called me at my office at seven o’clock on Monday night. He said, I wanted you to know before we tell the press that the Board just voted against recommending commutation in Mr. Quaker’s case. The vote was four to three. I’m just sick about it. It was the best clemency petition I’ve ever read. I’m sorry to be telling you this.
I thanked him for the call. I walked into the conference room where the others were eating a pizza and told them the news. We have among us fifty years of death-penalty experience, but everyone was stunned. In the extraordinary case—with an inmate who is mentally retarded, for example—we expect the Board to recommend relief. In the typical case, we expect the Board to deny relief, usually by a vote of seven to nothing. We had little experience with a vote of four to three. I had thought the clemency petition was a waste of time. It turns out that the real waste of time was not spending another hour on it to try to pick up one more vote. I’m not a cheerleader, but their faces were breaking my heart. I said, It’s not even close to over. We’ve got lots of arrows left in the quiver.
What I didn’t say was that I had a bad feeling we had already used the one with the sharpest point. I didn’t need to. They didn’t believe a word I was saying.
TUESDAY AFTERNOON Judge Truesdale called and asked whether we could meet for a drink at the Magnolia instead of coffee at Diedrich. She was sitting at a table in the back when I got there. The waiter came over and I asked him for club soda with lime. She said, I’ll have another. Bring him one, too.
When I’m in a bar or restaurant and I run into a judge presiding over one of my cases, I become a stick figure. I want to say what I think, but I feel like I can’t, and it is a short step from there to feeling like I am someone else, someone I recognize but do not really know, the way most people know their neighbors. I used to think it was because of ethical restrictions on what lawyers are supposed to say to judges about cases pending in their courtrooms, but that’s not really it. It is because they are not mortal. They hold the power to spare my client. For a short moment in a tiny space, they are God. I want to know what they are thinking, so that if they are thinking wrong, I can try to nudge them. If Moses can rebuke Yahweh, I can implore a judge. I want them to see the human reasons my client deserves to live, not the l
egal ones. I want them to be moral agents, not judges. But Moses turned away from the burning bush. I know exactly what I will say, and I also know I won’t.
When Katya was practicing law, she negotiated settlements with insurance companies. She would quibble over every last dime. When someone knocks on our door asking if we want him to power-wash the exterior of our house, she pays him whatever he asks. It is easier to negotiate on someone else’s behalf. But sometimes it can be hard to separate your own interests from your client’s.
I thought to myself, I will not be begging for my own life. I will be pleading for someone else who ought to live. No one has done that for him. Someone needs to. It is the very least he deserves.
Our drinks came. She raised her glass. I picked up my glass of soda to clink against hers. She nodded to the martini the waiter had also set in front of me and said, Use that one.
She said, What do you want to talk about? I told her I was uncomfortable discussing the case. I had no idea why I was there if I was not going to talk about the case, but there I was. I’d stew over that contradiction later. There were two olives in her drink. She used her thumb and index finger to lift one out. She ate it, then put both fingers in her mouth together to lick off the brine. Under the table her right leg was crossed over her left. She leaned forward. I felt her toes against my shin. She said, I walked here from my office. When I drink too much, I stay the night. I’ve already checked in. Bring your drink and come upstairs with me.
She was wearing a black silk blouse open at the neck and a string of pearls. She tucked a strand of loose hair behind her ear. I wondered whether I would tell Katya. It’s one thing to sleep with someone because you want to. It’s a different thing to sleep with someone because you want them to do something. I once told Katya that I couldn’t sleep with any of the famous people on my list because if I did I wouldn’t know myself anymore, and if I didn’t know myself, I’d have to kill myself. I can’t live with a stranger. She had said, No one knows himself as well as he thinks he does, including you. People surprise themselves all the time.
In college I memorized chunks of Saint Augustine’s Confessions. Future things then are not yet: and if they be not yet, they are not. And if they are not, they cannot be seen. If you could alter history with a minor transgression, wouldn’t you do it? Wouldn’t it be immoral not to?
She signaled the waiter and showed him her room key. She said, Put this on my bill. She stood up and drank down the rest of her martini. She leaned over and her lips were nearly touching my ear. I smelled the gin on her breath. I felt heat coming off her face. I felt her breasts pressing against my shoulder. She said, I think you’ll find it worthwhile. I felt a drop of sweat in my armpit. She whispered, Come on.
I saw Quaker in his cell, sitting on his metal cot, reading. Everything was dark, except for the book, illuminated by the 25-watt bulb of a small gooseneck lamp. I saw the crime scene photographs: Dorris, Daniel, and Charisse, their skin hued yellow, their blood almost black. I saw Lincoln sleeping. I heard Quaker say, In case you’re wondering, I didn’t kill my family.
I said, Judge, I can’t do this.
A VAN BACKED UP to a loading dock at the Polunsky Unit at two o’clock. Half an hour before, guards had led a shackled Quaker to the shower and given him fresh clothes. He felt nothing, neither courage nor fear, neither bitterness nor forgiveness, neither hatred nor love. He could not recall whether he had requested a final meal. He had written his mother a letter and had asked the warden to mail it once it was over. He told her about it when he talked to her on the phone that morning and told her good-bye. She would not be watching him die. He stood under the hottest water he could stand while three guards watched him, their hands resting on holstered cans of Mace they knew they would never need to use. He dressed and walked into the back of the Chevy van. One of the guards said, Inmate Quaker, I hope I see you tomorrow. Quaker nodded, his eyes soft. The other two guards got in the van. The one who had spoken wiped away a tear.
I TALKED TO HENRY just after he arrived at the Walls Unit at four and told him about the vote of the Board. I reminded him that we still had a petition pending in the Supreme Court, but that we all expected it to be denied. I told him that our indications were that Judge Truesdale was going to deny our request for a stay. I didn’t tell him why I was sure of that. He hadn’t said a word. I knew he was still on the line because I could hear electric doors clanging shut in the background. He said, You’ll be here watching tonight, right?
At five o’clock, Judge Truesdale called. She said, You’re not Joan of fucking Arc, you know. I was not sure how to respond to that. She said, I just signed an order withdrawing the date.
I said, Thank you, Judge. She hung up without another word.
The others were in Jerome’s office, discussing whether there was a way to create a legal claim out of the fact that Judge Truesdale had not issued a ruling. I told them she had called. I asked Kassie to call the district attorney’s office to confirm. She said, To confirm? You don’t believe her?
I said, Just call.
Ten minutes later they were standing in my office. Kassie had talked to Shirley in the DA’s office. Shirley believed that Judge Truesdale did not have any legal authority to withdraw the execution date. Under state law, unless a legal action challenging a death sentence is pending in state court, the trial judge cannot issue a stay of execution. The DA’s office interpreted legal action narrowly, and it was true that we had not yet filed a traditional challenge to Quaker’s conviction. Our theory was that we were entitled to gather the evidence to support our claim that he was innocent, and then file a claim based on his actual innocence after we had gathered the evidence. We believed that so long as we were using the judicial process to gather that evidence, which we were, the trial judge could intervene and halt the execution. Kassie explained that to Shirley. Shirley was unimpressed. Shirley told Kassie that the district attorney’s office was going to appeal.
Here’s why I could never be a prosecutor: because I could never be driven to kill someone. I understand death-penalty supporters. I used to be one. I can relate to the retributive impulse. I know people I want to kill. I’ve tried my hardest to save all my clients, but some executions don’t make me cry. There is very little that fire-and-brimstone Bible thumpers and I agree on when it comes to issues of crime and punishment. I believe the world would be better off without religion. But we do have one thing in common: I believe in evil. There are people who commit acts of cruelty so monstrous you have to barricade your senses from contemplating them because if you don’t their images will ruin every pleasure you know. When you are petting your dog, hugging your son, kissing your wife, they will slither in between you and the object of your affection and make you ashamed to be human. That’s why I shower when I get home from the prison and wash my clothes in a load of their own. I have friends who quit doing this work because they couldn’t keep the images from burrowing deep down into their consciousness and stealing all their joy. I doubt the evil men I know were born that way, but maybe some were. Nobody really knows. But I’ll also tell you this: Even the worst people I’ve ever known are sympathetic strapped to a gurney. They’re no longer cruel or evil. Some are repentant, some aren’t. What they all are, at that moment, are helpless, deeply broken men.
I have a recurring dream: Someone has killed everyone I love. He’s tied to a chair, his arms cuffed behind him, his legs bound. There’s a blue bandana tied around his throat and he can barely breathe. Both he and I are bloody and bruised. I whip him with a gun. His head sags. Blood is pouring from his mouth and nose. I reach my right arm out and press the barrel to his left temple. He is not defiant. He is not contrite. And always, moments before I wake, I try to imagine how this is going to feel.
In the Hebrew Bible, the government does not carry out executions. The death penalty is inflicted by the goel, the avengers, family members of the victim. In Islamic law, the family can spare from death the criminal who caused them harm. I thi
nk that if we are going to have the death penalty, the family members should carry out the executions. Some of them would do it. Maybe I would, too.
But not in the dream. In the dream I drop the gun. It clatters to the floor, and I walk away. It’s not a betrayal not to feel a need to kill.
At five thirty the clerk from the Supreme Court called to tell me that our petition had been turned down. He asked whether we were going to be filing anything else. This is a boilerplate question that he always asks, and the answer is always no. He wants to go home. The law clerks want to go home. The justices want to be able to concentrate on their poker games. A judge on the court of appeals once wrote an article saying it was hard on him to be at dinner parties on the night of an execution because the possibility that a last-minute appeal might be filed made it hard for him to enjoy himself. When I told the clerk that I was not yet sure I could feel him stiffen. He thought I was being flip. He had not heard that the judge had withdrawn the date and that the state was appealing. I said, Sorry for making y’all stay late tonight.
I called Henry again. It was about the time they’d move him from the holding cell to the execution chamber. The guard who answered the phone was unusually polite. He used the word sir three times in our three-second conversation. Hello, sir. Yes sir, he is right here. One moment, sir. I told Henry that Judge Truesdale had withdrawn the date. He did not say anything, but he must have reacted. I heard the guard saying, What is it? Henry told me to hold on, and I heard him tell the guards. I heard one of them shout, All right!
I told him that the DA was appealing and we were a long way from out of the woods. He said, I don’t even count the chickens once they’ve hatched. I wait till they’re supper.