by David R. Dow
That’s what he said, but in his voice I thought I could hear relief.
AT JUST PAST SIX, we got a copy of the district attorney’s appeal. The argument was brief. They wrote that because no appeal was pending in Judge Truesdale’s court, she did not have any authority to withdraw the execution date, and they requested that the court of appeals order her to reinstate it. We were in the conference room. I zinged my Super Ball off the thick glass door. I said, I think they blew it. Everyone looked at me. I said, They asked the court of appeals to order Judge Truesdale to reset the date. I don’t think they can do that. Setting an execution date is a discretionary act, and courts of appeals cannot order lower-court judges to do something if that something is discretionary. I paused to see whether anyone disagreed. No one did. I said, I guess we should file a response, just in case.
Gary started to crank it out. All he planned to write was that the court of appeals had no authority to order Judge Truesdale to do what the DA had requested. But the court of appeals beat us to it. At seven we got their opinion. Gary said, This is unbelievable. They gave them a friggin’ road map.
It was true. But now here is what you have to understand to appreciate exactly what we were feeling: When the court of appeals rules against us, as they do pretty much all the time, they ordinarily just tell us that we lose, and that’s it. You can write a sophisticated appeal that is three hundred pages long, and the court of appeals will say, We’ve considered your argument, and we reject it. They do not tell you why; they do not reveal their thinking; they do not tell you which features of your argument they don’t accept. They just say: You lose. But not this time. The court of appeals wrote:
Under state law, a court of appeals may not compel a lower court to perform a discretionary act. However, when a lower court’s act is ultra vires, the court of appeals has authority to overrule that act and restore the status quo ante. Because we have not been asked to do so, we express no opinion on the desirability of such correction in the current proceeding.
Ultra vires is legalese for beyond its authority. That phrase made my heart race. The court of appeals was agreeing with the DA.
One Saturday night when I was fourteen and my brother Steven was ten, he was cooking himself a hamburger for dinner. I flipped it from the skillet onto the floor. The dog ate it in a flash. Steven waited up for my parents to get home and told them what I had done. My dad asked him how he thought I should be punished. Steven proposed that I be forced to go a week without dinner. My dad said, That seems a little severe. What if he had to cook you a new hamburger tonight and another one tomorrow? Steven said that sounded like a good idea to him, and so that’s what happened.
It is a grievous insult to my honorable and deeply principled father to have been reminded of that childhood episode by the Texas court, but there it was. The court of appeals told the DA that they could not correct the problem the way the district attorney had asked them to, then added that the district attorney had not asked them to do the one thing they did have the power to do. I could see my brother Steven nodding at my dad’s advice. And despite what some others may tell you, the district attorneys are not imbeciles. At eight o’clock they sent us a copy of their newest filing, which was identical to the previous one, save for the last page, on which they asked the court of appeals to declare that the decision withdrawing the execution date was void and of no effect, and that the warden was therefore still under an order to carry out the execution before midnight. At eight fifteen the court of appeals issued an order saying that Judge Truesdale’s attempt to nullify the execution date was null and void.
EVERY CASE HAS its own unique moment of panic where the last best hope has just evanesced and the only honest corner of your rational brain tries to convince the rest of your emotional and effectively delusional self that you can keep pulling the trigger for as long as you want but the target has left the room, but of course if you were rational you would have stopped doing this work long ago when you realized that nearly all your clients end up dead, so you horde a hundred tricks, a thousand, for convincing yourself that what appears to be reason is actually surrender, and surrender is never reasonable, or at least never honorable, and so you start firing wildly like Jodie Foster in Silence of the Lambs where she can’t see an inch in front of her face but is going to go down shooting, and just because it’s a movie doesn’t mean it couldn’t really happen that way, and so you are convinced that the fact that she killed the bad guy means that you will, too. Justice will prevail.
Jerome said, We need to file an original writ.
Ah Jerome, my very own Jodie Foster.
An original writ is an appeal filed directly in the U.S. Supreme Court. Most pleadings that are filed in the Supreme Court are appeals from a lower appellate court’s ruling. We had not filed anything in any lower court of appeals. We had placed all our eggs in one basket, the highly remote possibility that Judge Truesdale would do the right thing, and our million-to-one shot had paid off. If it had failed, we would have filed something. Once it succeeded, we relaxed. How many ways could we have been wrong? We didn’t expect to succeed. When we did, we didn’t expect the DA to appeal. When they did, we didn’t expect the court of appeals to intervene. When they did, we didn’t expect them to do the DA’s work for them. I had explanations for all these decisions, but as I tell my students at the law school, if you’re explaining, you’re losing. The bottom line is that there was nothing we could appeal to the Supreme Court, and it was too late to file anything in the lower courts. So in a way, Jerome was right. This is known as the mathematics of small numbers. When there is only one option, that option is the right answer.
I did not need to remind him that we were coming up on the hundred-year anniversary of the last time the Supreme Court ruled in favor of a death-row inmate on an original writ, because he already knew. Our lone option was a puny, shriveled, impotent protest.
I said, Go ahead. Tell the Court it’s coming. I’ll call the governor and tell them we’re filing a reprieve request. Then I’m going to the prison. Call me every ten minutes.
In several moments of realistic lucidity, anticipating this southern turn, I had drafted a letter to the governor, laying out the argument that Quaker was innocent, and would have been found innocent if his lawyer had not been inept. I asked Kassie and Gary to tinker with it and send it by e-mail. Gary was in Kassie’s office, his hand resting on her shoulder. They looked lovely together, and I thought I was going to cry. How could I know so little about the lives of these people with whom I spent so much time? To how much of the world was I utterly oblivious?
THE PRISON WAS two hours away. I did not have two hours. I had maybe an hour and a half. I had called and told the warden I was coming. I asked them not to move Quaker out of the holding cell until ten. That would still give them two hours to carry out their protocol, more than enough time. They told me they would wait until exactly ten, not a minute later.
During the daytime, the drive from Houston to Huntsville is beautiful. The piney forest presses against the interstate from both the east and the west. At night, it’s inky black. Once I got north of Conroe, the road was empty and dark. Kassie called every ten minutes, just as I had requested. Every call went like this: I’d answer by saying, Any news? She’d say, No, nothing yet. I’d say, Thanks for the update. Talk to you in ten.
I had no interest in being alone with my absence of ideas. I called Katya. I told Lincoln good night. I turned on a country music station. Katya once suspected that her iPod has a brain, because the random shuffles produce perfect juxtapositions. It’s just math, I said, not divine intervention. I wish she had been there with me. Gordon Lightfoot was singing about books you won’t read because the endings are too sad. It was too obvious to be ominous. I changed to a Motown station. There was Gladys Knight, right on cue to challenge my rationality, singing a song about saying good-bye. Proximity to death is religion’s most successful proselytizer.
When I was taking flying lessons, before my first so
lo flight, Quan—the instructor—and I headed out over the Katy Prairie. It was a perfect day, not a cloud in sight, not a whisper on the radar. I turned south and flew us toward the Gulf of Mexico. But summer weather on the Gulf Coast can be confounding, and a dense fog blew in fast. The typically calm Quan took the controls and said, a little too loudly, I’m flying the plane. You couldn’t see a thing. He was flying by the instruments, but they don’t help you see the runway. The wind was ferocious. I did not know enough to be scared, but when Quan finally flew us into visibility, he opened his window, lit a cigarette, and shook one out of the pack at me. I suddenly started shaking so hard that the cigarette fell from my mouth. It rolled under the seat. Quan said, Dive. I looked at him. He said, You’re flying now. Dive the plane. I did. The cigarette appeared. Quan reached over and picked it up, then he stuck it back in my mouth.
Lessons in life are context specific. Contexts are never the same. If there are no lessons you can use, does that mean there are actually no lessons? Driving to the prison, I struck a match to light a cigar and somehow dropped it. I couldn’t very well make a car dive. I reached down to put out the flame before my car caught fire, and when I did my front right tire briefly ran onto the shoulder. At nearly a hundred miles an hour, it made quite a racket. I yanked the car back into my lane. I almost laughed out loud, imagining killing myself on my way to an execution, imagining what the hell else could go wrong. That’s when the flashing lights appeared behind me.
I PULLED ONTO THE RIGHT-HAND SHOULDER and left the engine running. I was looking out my sideview mirror, hoping to get a measure of his attitude from his gait. The trooper managed to approach my car from the passenger side, completely out of my sight, and when he banged on the window, the surprise caused my bladder to leak. He asked for my license and proof of insurance and appeared ready to take his good old time. I handed them over, fighting the temptation to ask him to hurry up and write me a ticket. He asked if I knew why he had pulled me over. I didn’t have time to play this game. I said, I know I was speeding. Can you please just hurry up and write me the ticket. I have to get out of here. He was holding a flashlight he had been shining down at my license he had placed on a clipboard. He clenched his jaw and shone the light in my eyes. The bright beam reflected off my seething anger, and I felt no impulse to look away.
He said, What exactly is the hurry?
Recently on a stretch of highway near where I was a trooper had pulled over a young college student who was speeding his dog to an emergency veterinary clinic. The encounter was caught on the trooper’s dashboard-mounted video camera. While the driver pleaded with the trooper to let him get back on the road, the trooper took his time, telling the driver there were plenty of other dogs out there if his died. The dog did die. Sometimes I consider modifying my opposition to capital punishment where child and animal abusers are involved.
I said, Officer, I am a lawyer and I have an emergency. He waited for me to go on, skeptical there is such a thing as a legal emergency at nine o’clock at night in the middle of nowhere. I said, I am a death-penalty lawyer and there is an execution scheduled for right now.
He hadn’t heard that one before. He lowered the clipboard and shone his light at the ground. He said, Prosecution or defense?
If you’ve never been tempted to lie, you’ve never been in love. Truthfulness is overrated. The world works the way we want it to because of a thousand little innocent lies. I suddenly realized that in the back of my mind I had started fashioning my story as soon as I saw his strobe. Any story would do. I had to get out of here. My phone rang. I said to the trooper, It’s my office, and I answered. Still no news. He said, I asked whether you are prosecution or defense.
Fuck it. I was just so tired of this. I practically spit it out. I said, I represent the defendant.
He had started to glance down at his clipboard, but his head jerked up, like a fishing pole when the diving fish snaps the line. He had the heel of his right hand on the butt of his holstered gun. He bent forward from the waist so his face was framed in the window. I was not going to look away. He would have to blink.
I won. He broke the stare and stood upright and looked down at my license. I thought to myself, Shit. What have I done.
The trooper placed the clipboard under his arm and grasped the door frame with both his hands. He said, Sir, I have been in law enforcement for thirty years. I had a friend, a guard in Huntsville, who was killed when the Churrasco gang tried to break out. Do you remember that? He left a wife and three baby daughters. I still sit next to them in church every Sunday. I am a Christian, sir. I do not believe it is man’s province to carry out God’s punishment. Not all my fellow officers agree. I’ve always found it perplexing that God’s word is truth, but His creatures disagree as to its meaning.
He tore my ticket in half and dropped the pieces on the passenger seat. He said, I’ll radio up ahead so you don’t have any more problems. Please do me a favor and keep it under a hundred.
THE WARDEN WAS WAITING for me when I got to the prison at ten minutes after ten. A guard started to pass a metal-detecting wand over me. The warden waved him away and said, Follow me. We walked back to the holding cell where I had visited with Ezekiel Green not two weeks before. It was nighttime, like the old days, when they carried out executions at midnight, and as we crossed the small patch of grass, I looked up and saw a sky full of stars. I saw Saturn and next to it Regulus, brightest star in Leo, Leo the Lion, king of the jungle, powerful and fearless, the opposite of me.
Sitting at the ocean’s edge and staring out to sea, or lying in an open field and looking at the heavens, I experience the same feeling that might well be the opposite of awe. It is the powerful realization that nothing means anything. The universe is so big and so old, and we are so small and so ephemeral, that the very concept of our place in the world is an absurdity. None of my dichotomies makes any sense. Whether I am a good husband or a philanderer, a loving father or an absent one, a caring lawyer or an indifferent hack, is so trivial as to be irrelevant. Trivial is too big a word. They matter about as much as whether Winona chews up half a pair of Katya’s expensive shoes or whether I smash a cockroach. You can laugh at your smallness or cry. The result’s the same. Nobody cares whether Quaker lives or dies, and nobody should, because nothing is worth caring about.
Well, at least that’s what I tried to tell myself.
The danger of perspective is that it can cause one to conclude that everything is just an aesthetic choice. Whether you are good or bad, assuming those words even mean anything, is, morally speaking, roughly equivalent to whether you prefer chocolate or vanilla. You can disbelieve that if you want. Like I said, belief is a choice. But truth has nothing to do with whether you believe it.
WHEN THE WARDEN SWUNG OPEN the heavy door and I saw Quaker in the holding cell, he was listening to an Al Green CD and—I am not making this up—dancing. The warden looked over at the three guards and furrowed his brow. They dropped their heads but made no move to unplug the music. The warden quietly closed the door behind me. I did not hear it lock. Quaker held up his right hand like a cop stopping traffic and sang a song about being tired of being alone. He asked one of the guards to turn it down a little and said to me, I love the reverend. Then, What’s going on? Why’s this taking so long?
I asked one of the guards if I could sit in the cell with Quaker. He said, This’ll probably get me fired, then he swung open the door and I walked inside. I stuck out my hand. Quaker paused, still cautious and reserved, then smiled a huge smile and took my hand in both of his. He pulled me toward him, like I was a scared dog on a leash, which wasn’t far from the truth, and when he let my hand go, I felt as awkward as a boy on a first date who doesn’t know whether to kiss the girl. Quaker wrapped his arms around me, and I hugged him back. His eyes were moist, but—and this is the craziest thing—he seemed almost happy.
The phone rang and one of the guards answered it. Quaker said, It’s peculiar, I know, but I feel really good. I kn
ow why they call it being at peace. I’ve been buzzing on the inside for so long, and now it’s calm, like the ocean with no waves. Even this morning on the row, all this noise and banging, all the usual shit, but it was like muffled, like I was underwater or something.
The guard hung up the phone and told us it was time to go. Quaker smiled again and nodded at me. Shouldn’t he have been shackled? Was he shackled? He said, I hope Pascal bet right. I want to see my Dorris, and my babies. But you know what? Even if I don’t get to, I don’t want to be here anymore without them. You know what I’m saying, Professor? Either way I win.
I said, It’s been a privilege to represent you, Henry.
He said, Do me a favor and don’t be second-guessing all your decisions for once. I know what you did for me. I know you believe me. Tell them lawyers in your office how much I appreciate it.
I will. I will.
And here. Please give this to my mama and tell her I love her.
He handed me his Bible. He hugged me again. He whispered in my ear, Thank you. I might have felt his lips brush against my cheek.
The guard who had answered the phone said, I think we got to go now, Henry.
The guard called Henry by his name. Funny that’s what I remember.
TWO OF THE GUARDS took Henry by either arm. The third opened the door to the courtyard for me and pointed me toward the door for the witnesses. When the door closed behind me, I heard Henry singing.
My phone rang. Kassie told me what I had already inferred. She said, The Supremes denied us. It was five to four. The governor turned us down, too.
I felt my heart quicken. In the Supreme Court, there is something called the rule of four. With only a few exceptions, nobody has an automatic right to have the Supreme Court consider his appeal. You have to get permission. The legal device used to make this request is the petition for writ of certiorari. By a long-standing convention of the Court, if four justices want to hear the case, the Court will hear it. This rule of four can create an anomaly. When a death-row inmate is facing execution, it takes five justices to grant a stay of execution. So it is possible for four justices to want to hear the case, but unless a fifth justice votes to grant a stay, the inmate will be executed before the Court can consider his case, and if the execution goes forward, there will be no case to hear. In the esoteric language of the law, the case will be rendered moot by the death of the petitioner. Many years ago, Justice Lewis Powell would always provide the fifth vote for a stay if four of his colleagues wanted to hear a case, but since Powell’s retirement, nobody does that. Over the past few years, there have been more than a dozen inmates executed even though four justices wanted to hear their case, because no fifth justice would provide the necessary additional vote for a stay.