Forgetting to Be Afraid: A Memoir

by Wendy Davis

He’d received a tremendous amount of criticism and even death threats over that decision, for a time having to have security protection assigned to him. But he put his head down and forged on, appointing a special managing conservator to oversee and manage the day-to-day work of the housing authority and assure that the relocations were carried out in accordance with his order. During my time clerking for him, the judge would hold occasional briefings to the court, hearing from the managing conservator, the housing authority, and the plaintiff residents. And what was remarkable was that while the housing authority had initially resisted his order, they had come to embrace it and were carrying it out with pride for the impact they were having on the lives of their residents. It was an inspiring and incredible thing to see.

  Like Solomon himself, he was a judge for all the right reasons, and he was always willing to do brave and hard things because he believed them to be the right things, and I learned so much from the great example he set. I remember how we would watch him preside over very complex trials and how eminently fair he was—always so sensitive not to color the jury’s perspective in any way with either his words or his body language as some judges do—interrupting counsel and asking questions of the witnesses themselves, thereby transmitting to a jury what their perspectives are. Often, the lawyers before him requested bench trials rather than jury ones, so trusted were his judgments and his ability to treat defendants, whether civil or criminal, with fairness.

  During one such bench trial that I observed, a criminal case, a defendant was telling his version of events on the stand. It was a long story that his lawyer was walking him all the way through. I watched as Judge Buchmeyer sat quietly listening, not a sign of what he was thinking conveyed on his face. And then he employed that soft-spoken technique of his to great effect. At the end of the witness’s testimony, the judge leaned over to him and ever so quietly, in almost a grandfatherly way, started to ask him some very simple questions about the veracity of the testimony he’d just given.

  “And you didn’t really do such and such, did you?”

  “No, I didn’t.”

  “And when you said such and such, that wasn’t true, was it?”

  “No. It wasn’t.”

  And just like that he elicited the truth from the witness. Ever gentle. Ever effective.

  Another very poignant memory I have of serving with him came in the wake of new federal sentencing guidelines that dictated and constrained what a federal judge’s subjective decision making in sentencing could now be. At the federal level, Congress had adopted these guidelines that set forth minimum and maximum sentences, and judges were not allowed to order any sentencing outside this framework. It was what the public came to know, in layman’s terms, as the “tough on crime” movement, which included stricter and mandatory sentencing laws such as the “Three Strikes” rule.

  The judge’s inability to mete out what he believed to be a just sentence under the constraints of these new guidelines came into full relief during my clerkship year. The defendant was a young man, seventeen or eighteen. He had gotten caught up in a gang that had robbed several convenience stores at gunpoint. The case had been tried, and guilt was determined. He was the driver of the getaway car, and it was the third in a string of robberies in which he’d been convicted. Under the Three Strikes rule, the penalties for each incident compounded greatly. Accordingly, the sentence this young man was facing was one that would put him behind bars for the rest of his life.

  In the days that led up to his sentencing, I watched the judge, always very studious and quiet at his work, become even more so. No breaks to tease and joke with us. In fact, we barely saw him. Always in the habit of arriving at the courthouse around five-thirty or six in the morning, now he holed up in his office, poring over legal materials, books stacked up all around him, trying to determine whether there was any way around the mandatory sentence that would put the defendant away forever.

  Did the judge believe that the defendant should serve time?

  Absolutely.

  But spend the rest of his life in prison?

  No.

  On sentencing day a judge hears from the defendant, from the defendant’s family and other character witnesses, as well as from the victims, should they choose to testify. The hearing of these witnesses on this particular day would be perfunctory. The judge had determined that he was hamstrung. There was no way that he could hand down a less severe sentence under the law. He came to the court very somber that day, donned his robe, and took the bench. He listened as the young man described, through tears, having been caught up with the wrong people and spoke of his heartfelt regrets. He listened as the young man’s mother, a single mom who had raised him in a housing project, described that she’d done her best, that they’d struggled through many hardships, that her son was truly a good man at heart, that he’d lost his way.

  And then the judge, soft-spoken as ever, rendered his decision:

  A lengthy sentence, long enough to put the young man in prison for the remainder of his life.

  He showed not a hint of emotion as he spoke, nor as he watched the young man’s mother cry out in agony.

  But when he retired to his office afterward, we could hear his soft sobs.

  I could have asked for no better teacher, no better mentor than him.

  Judge Buchmeyer died fifteen years after my clerkship with him ended. He had been struggling with dementia. On the morning of his death, the staff at the facility where he was living reported that he’d risen in a spry mood, dressed himself in business attire, and declared that he was going to work. And then, just like that, he was gone. I like to think that that’s exactly what happened. That he’s at work today, speaking to those of us he influenced during his life’s journey. I know he speaks—quietly, of course—to me, and I pray that I give honor to his voice in some small measure through my actions as a public servant today.

  FOURTEEN

  There is no greater agony than bearing an untold story inside of you.

  —MAYA ANGELOU

  MEMORIES LIVE IN THE BODY, and in the mind, but some of my most precious and sacred ones live also in a small wooden box: a memory box for a very much loved and very much wanted child, Tate Elise, the daughter we lost before memories of her could even be made.

  In the fall of 1996, Jeff and I were greeted with welcome news. I was pregnant, for the fourth time.

  My third pregnancy, in 1994 during my first year of practicing law after my yearlong clerkship for Judge Buchmeyer, had ended very sadly. Neither Jeff nor I had thought about or planned on having another child. Dru was six and Amber was twelve, and we had moved into that phase beyond the complications of toddlerhood and into the complexities of Amber’s approaching adolescence. But I’d always wanted another baby after we’d had Dru—it had been such a joy to raise her in a stable environment and to be able to give her the kind of home life and childhood I’d been unable to give Amber, and I so wanted that experience again. Though it was a surprise, I was very excited and sure that I was carrying a boy; almost immediately Jeff and I began referring to “him” as “Baby Lucas.”

  But problems began to arise sometime just past the midway mark of my first trimester, when a sonogram revealed that the placental sac had collapsed. That day in our doctor’s office, Jeff holding my hand as we looked at the sonogram screen, searching for our baby and seeing only the odd-shaped sac with no sign of life there, was a devastating one. Our “Lucas” had implanted in a fallopian tube, rather than in my uterus. Fallopian pregnancies, also known as ectopic pregnancies, are unsustainable and not viable. My doctor advised us that it would be dangerous to my health to continue the pregnancy. To do so would result in the rupturing of my fallopian tube. The only medical option was to have surgery to terminate the pregnancy and remove the affected fallopian tube—which in Texas is technically considered an abortion, and doctors have to report it as such. I was heartbroken. W
ithin the next forty-eight hours, I was scheduled for surgery to remove the tube; all our dreams—mine, Jeff’s, Amber’s and Dru’s—of an addition to our family were brought to a close.

  We all grieved the loss, but I grieved most deeply—a sadness and an emptiness took root in me where Baby Lucas had been. In time I returned to the demands of my law practice and lost myself in the daily joys and distractions of raising our two girls, but my renewed hopes and desires for another child never diminished. Soon Jeff and I made a conscious decision to let nature determine if we might once again receive such a blessing. We stopped taking any measures to prevent a pregnancy, and, knowing that with only one fallopian tube our chances were greatly compromised, I secretly prayed that were it God’s plan for us we would find ourselves expecting again.

  In the fall of 1996, I learned that I was pregnant again, a pregnancy that brought immediate joy to our entire family. Dru would be almost nine when this baby was born, and Amber would be almost fifteen. All three of us were excited about becoming “mamas” to this baby. But we were more cautious with our happiness this time. It wasn’t until my first routine sonogram that we fully exhaled. When the sonogram revealed that I was expecting a girl, we were elated. We would have three wonderful girls. We picked out her name, Tate Elise, and bought a few items for her layette.

  I continued practicing law and actually did a fair amount of traveling for work. I was working on a large antitrust case that required numerous depositions in various areas of the country. While my boss enjoyed a glass of wine at dinner, I drank skim milk. I wanted to be so careful to do everything just right. When I’d been pregnant with Amber, I gained forty-seven pounds, mostly due to the fatty, high-sodium fast-food diet that was my staple, given my financial challenges and basic lack of understanding about how to eat well. With Dru I’d gained less weight—thirty-two pounds—though her birth weight was much higher than Amber’s had been. At twenty-five I had a much better understanding about how to take care of myself and my pregnancy than I had at eighteen with Amber. Now I was thirty-three and completely dedicated to having the healthiest pregnancy possible, reading every book on the subject that I could get my hands on.

  Because I was in my thirties and Jeff was in his late forties, our doctor suggested in my second trimester that we have a Tri-Screen done, a blood test that would determine whether my pregnancy showed the possibility of a risk of chromosomal or neural defects. When the doctor called a week or so later and left a message for us to call him back after the results had come in, I immediately grew worried, but when I reached him, his tone was reassuring.

  “Nothing to be too concerned about,” he said. “One of the indicators was a bit off. Following up with a specialist would be a good idea, just to make sure.”

  I don’t recall understanding what was “off,” but I do recall that first wave of sinking fear.

  The specialist we were referred to practiced in an obstetric group that dealt with high-risk pregnancies and he was a social acquaintance, more a friend of Jeff’s than of mine—a member of his Friday-afternoon wine club. We’d scheduled the appointment with him, and now, in his office, I was full of anxiety. He took a detailed family medical history from both of us and performed a targeted ultrasound. As I lay on the table with cold gel on my enlarged belly, I watched nervously as he began to move the wand, getting just the right angles and taking measurements of Tate’s physical development—the length of her leg and arm bones, the circumference of her head. Afterward, when I was dressed, he met us in his office, and his tone was reassuring.

  “Everything looks good,” he told us. “Her head is slightly enlarged, but not enough to cause me any sort of real alarm. Come back in a few weeks and we’ll take another look.”

  Jeff and I left his office relieved. And I went back to planning for Tate’s arrival, her place in our lives.

  A few weeks later, I returned for my second high-resolution ultrasound, which I was sure would confirm what we’d been told only a few weeks before. I was so unconcerned that I hadn’t thought it necessary to have Jeff come with me, though he’d offered. This time I went alone.

  As I had on my prior visit, I lay back in the exam chair, awaiting the cold gel and the wand, anxious to see my baby girl on the screen. Quietly, too quietly, our doctor moved the specialized wand over my belly. Once again he took measurement after measurement, but this time he didn’t offer commentary along the way. Instead, when he finished, he repositioned my chair to its upright position and reached for a box of Kleenex, his hand actually shaking. I remember it like it was yesterday. I was immediately filled with dread. I could see in his eyes the news even before he opened his mouth to speak.

  I don’t recall exactly what he said at that point. But I do remember the words “Dandy-Walker syndrome.”

  An acute brain abnormality.

  The right and left sides of her brain had developed in complete separation, without the normal cerebral connector between the two. And it looked as though she had the most severe consequences associated with the syndrome’s abnormalities.

  I couldn’t breathe. I literally couldn’t catch my breath. My baby. My precious baby Tate. I don’t remember much else about that day other than calling Jeff, trying to contain my hysterical crying. The rest of it is a shocked, haze-filled blur.

  Jeff’s friend, our doctor, believed that it would be best if he turned us over to one of his partners in the practice. He felt too close to the situation, he said. It was too personal, too hard for him. It would be too hard on all of us. That day when I cried in his office, he cried with me and held my hands. His hands shaking. That’s the visual I recall most about that day. Even as he tried to hold mine, to soothe me, his hands continued to tremble.

  His partner met with us the following day, reviewed the sonogram results, and confirmed the sad prognosis. Her condition, extremely rare, fell on the most severe end of the syndrome’s spectrum. Terminating our pregnancy was gently suggested as an option. It was likely, he told us, that she wouldn’t survive to full term, and if she did, that she would suffer and likely not survive delivery.

  Perhaps out of shock and denial and a longing to believe that there could still be hope, I wanted yet another opinion. We were referred to a doctor in Austin who specialized in obstetric neurological diagnoses. Once again we received grim news. “Likely incompatible with life” were some of the words that hung in the air like a thick fog that I could not see through, that I could barely hear through.

  Back home I did as much research as I could to find some shred of hope that even in the severest cases and the grimmest scenarios we’d been presented with, there was still a chance she could have some semblance of a sustainable existence. We had been told that even if she did survive, she would probably be deaf, blind, and in a permanent vegetative state.

  When I was alone, with time ticking away and the urgency of making a decision pressing down upon me, I would talk to her. I spoke in the most reassuring way I could. I promised I would not let her suffer. But I needed more information. To make such an impossibly awful decision, I needed to feel surer.

  And so we went for yet another opinion. This time at a teaching hospital in Dallas. Our specialist there was a woman whose manner combined a detached professionalism with a measure of warmth. After confirming what we had already been told by three other doctors, she respectfully asked whether she could record film of Tate, in the womb, to use as a teaching tool. “Yes,” we said. “Yes.” Let Tate’s life mean something, Jeff and I each thought, though neither of us said the words out loud.

  At some point in the almost two weeks of second and third and fourth opinions and tortured decision making, I could feel her little body tremble violently, as if someone were applying an electric shock to her, and I knew then what we needed to do. She was suffering. I’d finally caught up to where Jeff had already resigned himself, though he’d patiently waited for me to find my own way of getting there.
It was time to accept the grim prognosis shared by those four physicians.

  With the heaviest of hearts, we let our doctor know of our decision: that we would terminate our pregnancy, that it was the most humane and compassionate thing we could do to spare Tate the further pain and suffering that would surely follow if we decided otherwise. In his office, we talked through our options; later that day I called him and asked whether he could please help us. And he agreed.

  The following morning, after spending my last night with Tate, talking to her, sobbing as I felt her tiny body tremble inside mine, I managed to rise, to dress, to take Jeff’s hand as he helped me into the car and drove me to the doctor’s office. The previous night, as I lay awake, I was unsure if I would be able to muster the strength to make my body move toward the inevitability of what would follow from each of those movements. But somehow, and with Jeff’s support, I did.

  In our doctor’s office, with tears flowing down both our faces, Jeff and I looked at our baby daughter’s beating heart on the sonogram screen for the last time. And we watched as our doctor quieted it. It was over. She was gone. Our much-loved baby was gone.

  Afterward I accompanied my doctor to the hospital and delivered Tate Elise Davis by cesarean section, just as I had when Amber and Dru were born. The following day a dear friend who was a nurse in the unit where I delivered Tate brought her to me. She had dressed her in a tiny pink dress and placed a knit cap on her enlarged head. On her feet were crocheted booties, and next to her was a small crocheted pink bunny. Jeff and I spent the better part of the day holding her, crying for her and for us. We asked an associate minister from our church who was a trusted friend to come and baptize her. We took photographs of her. And we said our good-byes. The next day, as I lay in the hospital sobbing, my hand over my now-empty womb, Tate’s lifeless body was taken away and cremated.

  An indescribable blackness followed. It was a deep, dark despair and grief, a heavy wave that crushed me, that made me wonder if I would ever surface. It would take me the better part of a year to ultimately make my way up and out of it. And when I finally did come through it, I emerged a different person. Changed. Forever changed.