I could lie to myself, but my lies probably wouldn’t work on Bernadette Ward. “I think the man you saw on the night Cecilia disappeared has killed a white woman,” I said.
“Oh, so now you gonna look for him.”
I reached into my pocket and fished out my pack of Luckys. “I don’t think I need to tell you how the world works.”
“Why should I help you?” she asked.
“You don’t have to. But if you do, I might catch the man who killed your friend.” I offered her the pack of cigarettes. She took one, so I lit it for her, but I didn’t let her hold my lighter.
“What do you need me to do?”
“I have some photographs. I need you to look at them and tell me if you see the man who killed Cecilia.”
“Do I have to go with you to a police station?”
“Not right now. I’ve got the pictures with me.” The best photo of Chester I had was a mimeographed copy of his wedding announcement in The Commercial Appeal, so I had trimmed Margery out of the picture and pasted Chester onto a sheet of heavy paper. I had done the same with similar newspaper pictures of fifteen other men. I handed the stack of pages to Bernadette. She leafed through them and stopped on Chester’s picture, which was in the middle of the stack. She glanced at the rest of the photos, but went back to Chester.
“This is him,” she said. “I’ve never seen these others.”
“Are you sure?” I asked. I tried as best I could not to convey to her whether or not I was pleased with her identification.
“Two kinds of white men come around here. One is the kind that’s got a taste for a little something dark, a little something—you know—voodoo.”
“Taboo?”
“Call it what you want, policeman. Point is, that white man is gonna pay you, and he’s gonna be pretty clean, and it’s gonna be easy money. But sometimes, a white man comes around here because he’s looking to do something nasty to somebody that white cops won’t care about. That white man will beat you so you can’t work. Maybe he’ll cut up your face so nobody will want you anymore. Maybe he’ll dump you in the river like that man in the picture did to poor Cecilia. When you see that white man, you had better recognize him, and you had better know to stay away. I ain’t never gonna forget that man.”
“When I arrest him, I may need you to identify him in a lineup, and I may need you to testify at trial.”
“Well, maybe I’ll be here,” she said.
TRANSCRIPT: AMERICAN JUSTICE
CARLOS WATKINS (NARRATION): Edward Heffernan is a law professor at Vanderbilt University. He’s also leading the team of appellate lawyers that is racing the clock to get a stay of execution that will save Chester March’s life. I checked in with him to see what’s going on with the case and what Chester’s chances are.
Before you hear from him, I want to give you a sense of this guy: First of all, if you’re imagining Gregory Peck as Atticus Finch, stop doing that. Ed Heffernan and Gregory Peck are both white guys, but that’s where the similarities end. Heffernan is around fifty, skinny and bald, with glasses so thick they distort the shape of his eyes. He’s an average-size guy, maybe five feet ten, and a hundred and seventy pounds or so, but he carries himself in a way that somehow diminishes his stature. After I met him the first time, I described him in my notes as being five-six, and when I went back to see him again, I was shocked to realize he’s actually taller than I am. But his head’s always down and he holds his arms close to his body. He’s easy to underestimate.
The students in his capital appeals clinic joke about his fondness for Kirkland Signature clothing; that’s the store brand at Costco. Ed wears their sweaters and chinos most days, unless he’s in court, and then he dresses in his Men’s Wearhouse best. You would never know from looking at him that Edward Heffernan is a former clerk to Justice William Brennan, that he’s one of the most respected appellate lawyers in the country, that his law review articles have been cited dozens of times in important federal judicial opinions, or that he’s an instrumental figure in the fight to abolish the death penalty.
EDWARD HEFFERNAN: We have two interrelated arguments before the Tennessee Supreme Court for staying Mr. March’s execution. The first is that it is unconstitutional under the Eighth Amendment, which bars the use of cruel and unusual punishments, to carry out a lethal injection on a person of Mr. March’s advanced age. The dosages recommended by the state’s lethal injection protocol are measured for a healthy middle-aged man. Injecting that into an elderly person could have unpredictable results. The second prong of our argument is that the state’s lethal injection protocol is unconstitutional as applied to anyone. It has been a few years since Tennessee has executed someone, and there’s some new research that raises questions about the physiology of what happens to a person when these chemicals are administered. Several states have issued moratoria on the death penalty, halting all executions while they reevaluate their protocols, and we think that’s appropriate in Tennessee as well.
WATKINS: What about Detective Schatz’s conduct during Chester’s interrogation, and the admissibility of the statement Chester gave to police?
HEFFERNAN: Those questions have been raised by previous appeals. Personally, I believe the confession and the evidence the police discovered because of it should have been excluded from Mr. March’s trial, and I find the circumstances of that interrogation appalling. But judges, especially here in the South, will give the police the benefit of every doubt they reasonably can to avoid throwing out evidence they view as credible. From a legal perspective, those issues are exhausted, and we’re trying to make the best arguments we’ve still got to save our client’s life. As you’re well aware, Chester is scheduled for execution in a few weeks. Time is of the essence, and we are focusing on our strongest arguments to stop or at least delay the execution. Of course, if somebody like you managed to uncover some new information, or raised significant public outcry over the circumstances of this conviction, that might change something, especially since Mr. March has a clemency petition in front of the governor. So everyone on the defense team really appreciates what you’re doing.
WATKINS: Tell me why you think the lethal injection is unconstitutional.
HEFFERNAN: Now, there’s a subject I love to talk about! Throughout the twentieth century, states cycled through a number of execution methods. The goal has always been to find a method of killing human beings that doesn’t appear to be violent. And it has always been impossible, because violence is inherent in the act of executing someone.
We used to hang people. It did the job quick, but folks didn’t like the optics. Or the noise it made when someone’s neck snapped. For a while people thought that electrocution would allow us to shut somebody down like flicking off a light switch. It didn’t quite work out that way. Electrocution causes horrible burns, and sometimes hemorrhages. And there’s a smell. A person’s veins are full of blood, and their digestive tracts are full of food at various stages of being turned into waste. Electrocuting somebody is like sticking all that into a high-powered microwave oven.
WATKINS: I don’t even want to imagine what death by electrocution smells like.
HEFFERNAN: I know firsthand. It is unpleasant.
WATKINS (NARRATION): Y’all, I have spent hours interviewing this man, and I cannot tell if this is just the way he talks, or if he has, like, a very dry sense of humor. Sometimes I think he’s messing with me a little.
HEFFERNAN: As an alternative to electrocution, some states tried execution by gas chamber, but people thrash around when they’re choking to death on poison gas. Corrections officials tried restraining the subjects to prevent that, even strapping their heads down, but, once again, a lot of people found it unpleasant to bind a human being to a gurney in order to force them to breathe poison gas. And witnesses can still see the victim struggling against the restraints. There’s no way to gas somebody to death that isn’t awful to watch. So currently most states have settled on lethal injection. Throughout these
iterations on death penalty methods, the states prioritized the appearance of a peaceful death over methods known to actually minimize the pain and suffering of the condemned.
WATKINS: What’s the difference in a humane death and a death that only appears to be humane?
HEFFERNAN: We know the fastest and most painless way of killing a large mammal. Massive, instant trauma to the brain. We do it literally a million times a day in various industrial slaughterhouses. We even have a tool for it: a pneumatic gun that fires a bolt through the skull of a pig or a cow. We know it causes no pain when we do this to animals, because pain causes the release of a hormone into muscle tissue that fouls the taste of meat.
The firing squad, the guillotine, and the gallows all perform the task of quickly destroying the brain, to varying levels of effectiveness. A hollow-point bullet in the head, of course, is the swiftest death we know how to inflict. A man executed by firing squad will be dead before he ever hears the shot. That’s how they execute people in China. A human head may survive a few seconds after decapitation, or after the neck snaps by hanging, which is functionally the same thing—the noose and the guillotine both sever the brain from its source of oxygen. These methods are pretty fast, but possibly slow enough for the victim to be briefly aware of what has happened.
But there’s no way to inflict massive brain trauma or decapitation without making a mess. And we’ve developed a great distaste for messiness. You know, we don’t go out and kill a chicken for dinner anymore; we get it plucked, cleaned, drained, and shrink-wrapped at the supermarket, and we don’t want to know about the process that got it there. Nobody wants to see the blood or handle the guts or look into the eyes of the thing that is dying at their whim. Are you familiar with the utilitarian arguments for ethical veganism?
WATKINS: I think I know what you’re talking about, but we’re kind of getting off the topic of Chester March and the death penalty.
HEFFERNAN: If you are ever reporting a story about animal rights or the hidden horrors of food production under late capitalism, please feel free to contact me. Someday in the future, contemporary treatment of animals will be regarded as an atrocity as great as colonialism or genocide. And factory farming and modern networks of retail distribution have dramatically increased the ease with which we can consume the flesh of sentient beings, and therefore the amount of flesh we consume.
WATKINS (NARRATION): If I ever report that story, I will contact Ed Heffernan. It turns out that in addition to being a leading figure in the fight against the death penalty, he’s also considered to be one of the legal academy’s foremost moral philosophers and has written extensively about how legal rules ought to be informed by and based in ethical principles. I’ve got to break up the recording here, by the way, because Ed talked to me about the atrocities of the food production system in America for quite some time, despite my repeated attempts to get him back onto Chester and the death penalty. And while it’s an interesting topic, it’s not what we’re doing here.
I’ve got to admit, at first I was a little perplexed by Ed’s tendency to segue from the death penalty into animal rights, like the plight of the folks trapped in the criminal justice system is equivalent to the plight of some chickens. It seemed like a waste to be preoccupied with that when Chester has so little time left. Personally, I am of the opinion that this country needs to reckon with the way it treats black people and the underclass before it worries about the way it treats livestock. But, to Ed, both of these fights are the same fight, his fight to force society to organize itself in an ethical way. I can see how he connects the systems that funnel hundreds of thousands of black and brown men into the criminal justice system with the mechanism by which millions of animals disappear into industrial slaughterhouses. And I can see how we all become complicit in these systems that operate invisibly and conveniently.
But still, that stuff is a little bit esoteric, and American Justice only gets an hour per week. So, although Ed spent a solid twenty minutes explaining to me why we will never have a just society without massive reforms to agriculture, I am going to cut the audio around those digressions and try to streamline the conversation for you.
HEFFERNAN:… And we don’t like messiness in the criminal justice system any more than we like it at the dinner table. We want this process to appear clinical, professional, and infallible. So, to avoid messes, states have historically preferred methods of execution that avoid the appearance of violence and leave a corpse that superficially appears to be intact. But these methods are less reliable, slower, and likely to cause more pain.
Over the course of the twentieth century, about 3 percent of executions were botched—and when I say they were botched, I mean the execution protocol failed to cause death. When you try to kill somebody and fail, you generally inflict horrific suffering. Botched executions are torture. It is morally untenable and illegal under the Eighth Amendment to employ an unreliable method of execution.
The firing squad is 100 percent effective, and hanging is about 99 percent. It’s when you start electrocuting people that we see mistakes; about 3 percent of the time, when you try to electrocute somebody, they survive. Bad press over torturous failed electrocutions in the 1980s spurred the adoption of lethal injection as the preferred method of execution in the United States. But lethal injection is the least effective method of killing a person we’ve ever devised. It has a failure rate of about 7 percent.
WATKINS: Why is it so ineffective?
HEFFERNAN: Part of it is the complexity. The lethal injection protocol involves the sequential administration of three different drugs: First, a sedative, to render the condemned unconscious. Then, a muscle relaxer or a paralytic agent; that’s for the benefit of the witnesses. It prevents twitching or convulsions when the third drug, a poison called potassium chloride, is administered to stop the heart.
An executioner can foul things up at any stage. If the sedative is improperly administered or the dose is too small, the condemned will be conscious through the process. If the paralytic agent is improperly administered, the inmate will thrash around on the gurney. And if there is some mistake with the potassium chloride, then the condemned won’t die. Or at least, he won’t die quickly.
This is a medical procedure, but very few medical professionals will participate in executions or advise corrections officials on how to kill people, because doing so would violate the Hippocratic oath to do no harm. So the person in charge of the sedation will not be a trained anesthetist. The person inserting the intravenous line will not be a nurse.
WATKINS: It actually seems surprising they carry it off successfully as often as they do.
HEFFERNAN: The definition of a successful execution by lethal injection is flexible. Unlike the firing squad or the guillotine, potassium chloride doesn’t kill instantly even when it’s administered properly, so several minutes can elapse after the injection before the subject enters cardiac arrest. If the condemned is paralyzed by the second drug, then those minutes will appear peaceful, but that doesn’t mean he isn’t suffering. Poison kills much slower than a bullet to the head, and death by poison isn’t painless. These are chemicals that dissolve your insides.
WATKINS: How can a barbaric practice like this continue in an advanced society?
HEFFERNAN: We’re doing all we can to put a stop to it.
10
With the witness identification of Chester as the likely killer of Cecilia Tompkins, along with the information I collected about the disappearance of Margery March, I now had enough evidence to get a warrant to search the house on Overton Park Avenue. Usually, I would run a request for a warrant past Inspector Byrne, but he wasn’t at his desk, and I wasn’t in the mood to wait around for him, so I went ahead and swore out my affidavit detailing the evidence I’d collected and had a messenger take the paperwork over to the courthouse for a magistrate to sign.
Once I had the document, I grabbed a couple of uniformed bulls—Cadwalader and Branch, I think their names were—and we
nt to execute the search. I drove my unmarked, and the officers followed in a patrol car.
In most cases, the best time to go search a house was around four in the morning. It was just safer that way. Suspects were at their most compliant and cooperative in the early hours when they were hungover and lethargic instead of drunk or high and potentially irrational. But I felt like there was a slim chance Margery March was alive in that house and in need of rescue, and a somewhat greater chance that Chester was actively in the process of destroying evidence.
Later in my career, I think I probably would have waited a few hours and gone after Chester at night, which would have given me time to loop Byrne in on what I was up to. The actual facts didn’t justify going over there in the middle of the day. Margery had been missing for a couple of weeks before Hortense Ogilvy came to speak to me, so my victim was probably dead long before I even knew she existed, and Chester had plenty of time to clean up his mess before I got onto his trail. My sense of urgency wasn’t really justified by the circumstances. The truth was, I was just hot to get the son of a bitch.
So it was maybe 6 P.M. when I knocked on Chester’s door. He didn’t respond, but I knew he was home because the Skylark with the scowling face was parked in the driveway. I knocked some more. This was a courtesy; my paperwork said I had a right to bust the door in.
Eventually, Chester answered, dressed in a linen suit with his hair slicked immaculately. He eyed the two uniformed officers with casual disdain.
“Is there something I can do for you gentlemen?” he asked. Real sarcastic inflection on the word “gentlemen.”
“People are concerned as to the whereabouts of your wife,” I said.
“People’s concerns are no concern of mine,” Chester said.
“Well, they’re my concern, and I’ve got a warrant to search these premises for Mrs. March or evidence of what might have happened to her,” I said, jabbing a lit cigarette close to his face. “Step aside and let us in.”
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