The Autobiography of an Execution

by David R. Dow

  Henry Quaker had been dead almost six hours.

  I bought a large americano with an extra shot and a navel orange. Back in front of my computer, I sipped the coffee as I read through yesterday’s e-mail, mostly condolences and a bit of spam. A couple were from people telling me he got what he deserved. I wrote them back and said, Thanks for your thoughtful note.

  The weekend before the presidential election, my wife, brother, and I walked door-to-door in rural western Missouri canvassing for Obama. We bought sandwiches at a luncheonette where a skinny white guy squinted at our Obama buttons and whispered, I’m voting for him. Later we rang the bell at a dilapidated A-frame house set back far from a rutted dirt road. Three mangy dogs were chained out front to massive pines. A young pregnant woman holding a baby on her hip said she would never vote for someone who wouldn’t even put his hand on the Bible. Katya wanted to explain to her that she was confused, that Obama is a Christian. I whispered, Let’s go back to the car. People who form firm opinions with so little knowledge only pretend to be open-minded. They select their facts like food from a buffet.

  In Executed on a Technicality, the book of mine Ezekiel Green said he read, my objective was to educate people about how the death penalty works. One reviewer said the book was about my cases, but not at all about me. She was exactly right. Maybe it was a mistake to write it that way, but it wasn’t accidental. I wanted to write about facts. My beliefs were irrelevant.

  But it is your beliefs, not just facts, that determine who you are. Of the hundred or more death-row inmates I’ve represented, there are seven, including Quaker, I believe to be innocent. They get sentenced to death because they have incompetent or underpaid trial lawyers, and because human beings make mistakes. They get executed because my colleagues and I can’t find a way to stop it. Quaker won’t be the last. I tell young lawyers who want to be death-penalty lawyers that if it’s going to be disabling to watch your clients die, you need to find something else to do. Your clients are going to die. And it’s not a comfort to know that most of them are guilty. The inmate set to die the week after the Quaker execution had murdered a woman and raped her, in that order. But if you believe it’s wrong to kill, you believe it’s wrong to kill. When I first met him, he said to me, All praise be to Allah for sending me here. I was on the wrong path, and until I got here I didn’t know it. He believed he would not be executed. He thought it mattered that he had reformed. His older brother was a marine. He told me if he got paroled he wanted to go to Iraq and fight for his country.

  Quaker and Winston and Green and all the rest are not their real names, but their cases are real. The courts and judges behaved in the manner I have described. I think some judges should be removed from the bench, but I don’t think Judge Truesdale did anything legally unethical, or I would have said so. I haven’t held much back. She cared about doing the right thing in the Quaker case. Lots of things are legal and also wrong.

  As I was finishing this book, Katya, Lincoln, the dog, and I were in Park City, Utah. There were no executions scheduled in Texas for another month. We were hiking along Yellow Pine creek, up in the Uinta mountains, a few miles north of Kamas. We wanted to hike through the forest up to the lake, but three miles in, Lincoln said he was tired and asked if we could turn around. We said okay, and Lincoln took off sprinting, back toward the trailhead, the dog on his heels. We stopped to watch them.

  I began talking to Katya about the book. I told her I felt like it was missing something, but I wasn’t sure what. I said, The book is as factually truthful as I am allowed to be, and as emotionally honest as I am capable of being.

  Katya said, Without years of therapy, anyway.

  I smiled. We walked on along the creek, craning to keep Lincoln in sight.

  The cases I have written about are not unusual. My other cases, every death-penalty lawyer’s cases, are just like them. What’s missing is the proof that what you have just finished reading is mundane. The day after Henry Quaker got put to death, my colleagues and I went back to the office and did it all over again, and all the same things happened.

  I realized what’s missing: all the other cases.

  Lincoln waited for us to catch up at the edge of a pasture. A couple dozen cows were grazing and lowing loudly. The moms hustled to get between their young calves and us. Katya’s afraid of cows. She walked closer to me. Lincoln said, Mama, maybe you should get a baby cow and that way when it grows up you won’t be scared.

  Lincoln and the dog ran ahead again. When we caught up to them, Lincoln was sitting on the ground, leaning against an aspen, and the dog was drinking from the creek. Dark clouds were forming in the west. The setting sun sank behind them and streaked the sky with wisps of purple and orange. The wind blew down from the north, and the air held a hint of chill. Lincoln asked whether we could make a fire when we got home.

  In a couple of days, or maybe in a week, I’d have to start working on the next execution. But at that moment, as we walked slowly back toward where we had started, the three of us with the dog, all we talked about was what we would fix for dinner that night, and when we would come back to this spot, and about where we would go tomorrow.

  ACKNOWLEDGMENTS

  I hear there are solo practitioners. But for me, the practice of law has always been a collaborative enterprise. Andrea Keilen is the supremely talented executive director of the Texas Defender Service. I thank her and the actual TDS lawyers with whom I work every day, including on all the cases described in this book: Kate Black, Frances Bourliot, Matt Byrne, Kathryn Kase, Alma Lagarda, John Niland, Katherine Scardino, Jared Tyler, and Greg Wiercioch. (Gloria Flores, Nick Mensch, Melissa Waters, Rindy Fox, Ariell Hardy, Neil Hartley, Kelly Josh, Susanna Trevino, and Jessica Lindley, while nonlawyers, help keep the place running.) Steve Hall and Laura Burstein are also routinely helpful, and George Kendall’s advice is routinely indispensable. The TDS interns are passionate and tireless.

  Then there are the past (or almost) TDS lawyers who also worked on the cases described here, including: Melissa Azadeh, Sandra Babcock, Bryce Benjet, Dick Burr, Nicole Casarez, Mike Charlton, Phyllis Crocker, Karen Dennison, Mia de Saint Victor, Mike Gross, Andrew Hammel, Keith Hampton, Eden Harrington, Scott Howe, Cassandra Jeu, Lynn Lamberty, Maurie Levin, Jim Marcus, Joe Margulies, Robert McGlasson, Morris Moon, Brent Newton, Rob Owen, Jeff Pokorak, Danalynn Recer, Meredith Rountree, Raoul Schoneman, Naomi Terr, Jean Terranova, Mandy Welch, and Phil Wischkaemper. I’ve also been privileged to work with Tony Amsterdam, John Blume, Steve Bright, John Holdridge, Lee Kovarski, Greg Kuykendall, Paul Mansur, Nina Morrison, Barry Scheck, Jordan Steiker, Clive Stafford-Smith, Brian Stull, and Christina Swarns. I’m sure I’ve forgotten several people. I hope they’ll forgive me.

  I am grateful to Eric Holz, the surgeon who saved my eye. I owe an enormous debt as well to my friends Bowes Hamill and Charles Katz, gifted physicians who never asked me to stop calling or e-mailing, even though I called or e-mailed so often that I almost caused myself embarrassment.

  Dean Ray Nimmer, Associate Dean Richard Alderman, and former dean Nancy Rapoport have supported my work at every step of the way, no matter how strong the headwinds—and they can indeed be strong. My students, both at the University of Houston Law Center and Rice University, have been indispensable and inspirational.

  For reading the manuscript or discussing sensitive issues about it with me, I am grateful to many people, including: my brother Mark Dow, the best reader and writer I know; Marcilynn Burke, Seth Chandler, Meredith Duncan, Michael Olivas, and Ron Turner, extraordinary colleagues and even better friends; my friend David Jones, whose convoluted analyses are usually worth untangling; Simon Lipskar, my dedicated agent, whose advice and judgment are invariably spot-on; also at Writers House, Maja Nikolic, Angharad Kowal, and Jennifer Kelaher, who tirelessly promoted this book, and Josh Getzler, who exhibited immense patience in dealing with me; Jonathan Karp, the remarkable editor and publisher who intuitively understood exactly what I wanted to do with t
his book and who turned a manuscript I liked into a book I like much more, and his terrific assistant, Colin Shepherd, who was calming and resourceful; and finally, my dear friend Jon Liebman, whose faithfulness, wisdom, and friendship I’ve been benefiting from for longer than I care to say.

  Katya and Lincoln held veto power over the book. That I’ve written it reflects that they said I could. They’ve allowed me to steal, shape, and share our stories. They’ve also allowed me to steal my way into their lives. I’m a lucky guy.

  APPENDIX

  Ethics Opinion for The Autobiography of an Execution

  Meredith J. Duncan

  Publisher’s Note: In light of recent controversies regarding the authenticity of memoirs, we asked a professor of law specializing in legal ethics to explain the rules that constrain a lawyer’s freedom to disclose privileged and confidential information. Her essay follows. While recognizing that some readers prefer documented sources in a work of nonfiction, David R. Dow made the decision to disguise identities of some characters to comply with ethical rules mandated by his profession.

  Lawyers are ethically obligated to keep their clients’ secrets, often forever. This obligation, which places serious limitations on an attorney’s ability to write about his experiences, stems from two different bodies of law—evidence law, which defines the attorney-client privilege, and the legal ethics rules, which provide the contours of a lawyer’s duty of confidentiality.[1]

  The evidentiary attorney-client privilege protects communication between an attorney and the client from being revealed in court or other official proceeding.[2] When a client communicates with a lawyer seeking legal advice, that communication is protected by the evidentiary privilege. Consequently, the lawyer cannot be compelled to reveal that communication unless the client consents (or another limited exception applies).[3]

  A lawyer’s ethical duty of confidentiality is much broader than the evidentiary privilege.[4] This legal norm prohibits lawyers from discussing their clients’ affairs. This duty of confidentiality protects all information relating to the representation of the client, regardless of its source.[5] It prohibits an attorney from revealing any information about a client, in or outside of a courtroom, whether known to others or not, and regardless of whether the lawyer learned the information from the client or someone else. This ethical obligation means that a lawyer may not reveal information relating to a client’s matter to others unless the client agrees to its disclosure (or one of a few limited exceptions applies).[6] It is primarily his duty of confidentiality that is at stake when a lawyer decides to pen a memoir.

  Both the attorney-client privilege and the duty of confidentiality are driven by two essential considerations: (1) promoting candor and honesty within the attorney-client relationship[7] and (2) maintaining an appearance of loyalty.[8] When clients speak to their lawyers, it is desirable for clients to be as open and honest with counsel as possible, and these rules further that degree of openness. Good legal representation is facilitated by the lawyer’s knowing everything that the client knows, even if those things may be embarrasing or could be potentially harmful to the client or others.[9] In an effort to ensure that a client feels safe in disclosing all the lawyer may need to know, the law protects virtually all the communication between the lawyer and the client (as long as the communication occurred in the context of the attorney-client relationship).

  In some circumstances, the privilege or duty of confidentiality may yield and permit the attorney to reveal otherwise confidential information. So, for example, when revealing confidential information may prevent the client from committing a future crime, an attorney is permitted to reveal that information.[10] Similarly, when the attorney’s revelation of confidential information may prevent reasonably certain death or bodily harm to another, the attorney is permitted to reveal confidential information.[11] The most recently recognized exceptions to the duty of confidentiality allow for disclosure of confidential information in order to prevent a client from committing a financial or economic fraud.[12] These exceptions have only recently been enacted, in response to the Enron scandal and other corporate abuses in which it was suspected that attorneys’ revelation of confidential information might have prevented vast financial ruin to thousands of people, had the revelation been allowed.

  The ethical rules constraining lawyers rest on the belief that frank conversation between a lawyer and clients is aided when clients can be confident that the conversations they have with their lawyers will never be used to embarrass or injure them.[13] Therefore, we assure clients that all communication with their lawyers relating to legal representation will be kept secret forever, unless they consent to disclosure. If a client dies without consenting to the disclosure of confidential information, a lawyer is bound to keep that information secret forever.[14]

  An additional concern driving confidentiality rules is based on principles of agency law.[15] A lawyer is the client’s agent. She stands as one with her client, helping the client navigate through the complexities of the legal system. The lawyer is to be her client’s advocate and counselor, single-mindedly devoted to her client. Talking to others unnecessarily about her client’s affairs evokes images of disloyalty. To keep secrets inviolate indefinitely is to be at one with the client, to show the utmost loyalty, whether to a current or former client. The ethical obligation to maintain client confidences concerns this appearance of loyalty, as do other ethics rules, such as the rules governing conflicts of interest.[16] Keeping a client’s secrets until told to do otherwise is part of being loyal, even if keeping the secrets means exhibiting that loyalty beyond the client’s grave.[17]

  Not being able to talk to family or friends, not even to a spouse, about a large part of one’s life—the details of one’s workdays—can exact a heavy toll on lawyers. Perhaps keeping clients’ secrets—particularly where the stakes are very high or the secrets are dark—helps explain the high incidence of depression, substance abuse, and suicide within the legal community, one of the highest rates among those of all professions.[18]

  Consider the recent story of attorneys Dale Coventry and Jamie Kunz. More than twenty-five years ago, Coventry and Kunz, Cook County public defenders, were assigned to represent Andrew Wilson against murder charges.[19] During that representation, Wilson confessed to his lawyers that he had robbed and murdered a security guard at a McDonald’s restaurant in January 1982, a crime for which another man, Alton Logan, was being charged. Bound by the attorney-client privilege, Coventry and Kunz kept silent as Logan was ultimately convicted and sentenced to life in prison for a murder he did not commit. Andrew Wilson had given his attorneys permission to disclose his secret only upon the event of Wilson’s death. In anticipation of that moment, in 1982, Coventry and Kunz executed an affidavit attesting to Wilson’s admission. They kept the affidavit in a lock box under the bed in one of the men’s bedrooms for a quarter of a century while Logan served prison time for a crime he did not commit. It was only in 2007, upon Wilson’s death, that they produced the affidavit to the authorities. In 2008, Logan was released from prison.[20] Both Coventry and Kunz now speak openly about the angst and torment they suffered as a result of being ethically bound to keep Wilson’s secret.[21] They also give thanks to their client, Wilson, for agreeing to allow them to disclose the secret, because without Wilson’s permission, they would both have had to take that secret to their graves. Both Coventry and Kunz have been celebrated by the legal community for the ability to keep their client’s secret.[22] In addition to being lauded by the legal community for keeping quiet for all these years, they should also be commended for having the foresight to acquire their client’s permission to reveal his secret after his death. Coventry and Kunz have been much less well received by the community at large.[23]

  Everyone loves a good story, and lawyer stories can be among the best. However, lawyers are prohibited from telling the very best ones—the ones about their real, everyday life experiences with their clients (a fact I must
remind lawyers who visit my classroom of all the time). Lawyer “war stories” can be fascinating and entertaining, but without client consent, telling war stories is a violation of a lawyer’s ethical obligations. A lawyer may discuss his cases only if there is no reasonable likelihood that the listener will be able to identify the actual client or case. Even a lawyer’s “hypothetical” story is prohibited by the ethics rules if it could reasonably lead to the discovery of a client’s identity, information, or the situation involved.[24] Similarly, labeling a story a work of fiction does not abrogate a lawyer’s ethical obligation not to reveal client confidences.

  At the outset of The Autobiography of an Execution, the author tells us that he has gone to great lengths to disguise particular identities in order to fulfill his ethical obligations. He is required to do so. His ability to provide the very best legal representation for his clients is dependent, in large part, on his clients’ having confidence that their lawyer will keep their secrets forever. Even a lawyer who believes that it would benefit society to learn about the details of one of his cases, or who believes that it would be personally therapeutic to discuss one of his cases, confronts head-on the lawyer’s obligation to keep secrets. Of course, the safest ethical choice is to remain silent. However, if the decision is to tell his story, the lawyer must be very careful not to reveal his client’s identity, information, or confidences.

  Meredith J. Duncan is the George Butler Research Professor of Law at the University of Houston Law Center, where she teaches in the areas of professional responsibility, legal ethics, criminal law, sexual assault law, and torts.

  ABOUT THE AUTHOR

  DAVID R. DOW is the University Distinguished Professor at the University of Houston Law Center, and the litigation director at the Texas Defender Service, a nonprofit legal aid corporation that represents death-row inmates. As an appellate lawyer, he has represented more than one hundred death-row inmates over the past twenty years. A graduate of Rice and Yale, Dow is the editor (with Mark Dow) of Machinery of Death, and the author of Executed on a Technicality: Lethal Injustice on America’s Death Row and America’s Prophets: How Judicial Activism Makes America Great, as well as a treatise on contract law. Dow is also the author of more than one hundred professional articles and essays, and his work has appeared in many popular publications, including the New York Times, the Washington Post, the Christian Science Monitor, the Progressive, the Texas Observer, the Dallas Morning News, and the Houston Chronicle. He resides with his wife, their son, and their dog in Houston.