Running Out of Road

by Daniel Friedman

  WATKINS: What do you mean?

  HEFFERNAN: Everybody’s heard the Miranda warning a million times on television. So the police recite it, and people just think it’s a formality, like the fine print you click through when you update your iPhone software. When the police give you the warning, they ask if you understand it. Everybody says they understand it. But if people really understood what it means that everything they say is going to be used against them, a lot fewer of them would talk.

  When they sit you down to interrogate you, they give you a form that explains your rights in greater detail. The form says you can stop questioning any time you want a lawyer. And then they ask you to sign the form to waive those rights.

  WATKINS: Why do people waive their constitutional rights?

  HEFFERNAN: Because once the police give you the Court-mandated warning, they’re allowed to lie to you, to manipulate you. You’re in trouble, and they’re your only friend. They just want to get it right or hear your side of it. They’re trying to help you, but you have to talk to help yourself. They’re the ones protecting you by standing between you and the DA or the hanging judge or the inmates who will rape you in prison, or the other cops. They’ll tell you your friends are ratting on you and your only chance to avoid taking the fall is to rat on them first. But what you don’t realize is they’re asking for things, but never offering anything. Because cops can’t grant you immunity in exchange for your testimony. Cops can’t offer you a plea agreement. All those things are at the discretion of a prosecutor. They’ll tell you that if you exercise your rights and get yourself a lawyer, then they can’t help you. But they can’t help you anyway, and they don’t want to. All they want is a confession.

  WATKINS: So when should you talk to a cop?

  HEFFERNAN: Never. Well, I mean, you can feel free to talk to them if you’re a victim. I wouldn’t want to discourage victims from reporting crimes, especially violent ones. But if you’ve done something, or you think they think you’ve done something, shut up. If they give you that Miranda warning, shut up. Shut up, and lawyer up.

  WATKINS: And how was Chester March deprived of his rights?

  HEFFERNAN: It’s undisputed that Chester March was suffering from a serious head injury at the time he confessed to the murders. Chester has alleged that the injury was inflicted by Detective Schatz, during the interrogation. Schatz and other police witnesses dispute that claim, but they admit that Chester had been involved in a high-speed car accident while evading arrest, and that he was interrogated before his injuries had been treated by a doctor.

  WATKINS: And judges have upheld the use of the statement against Chester?

  HEFFERNAN: The state contends that Chester was not in apparent distress at the time of the interrogation, and that he had received first aid from paramedics prior to being interrogated, which was sufficient for the interrogation to pass muster under the Eighth Amendment.

  During that interrogation, Chester told the police that he had buried his wife, Margery, in a wooded spot on an agricultural property in Mississippi that his father had owned. Based on what Chester told them, police excavated the site and uncovered human remains. It’s really hard to get a judge to throw out a murder confession that leads police to a body. Judges will twist the facts to the limits of reasonableness and sometimes beyond to avoid finding that a constitutional violation requires them to exclude evidence collected from a victim’s body.

  The Tennessee Supreme Court ruled that since the detectives didn’t know that Chester was suffering from a brain injury, they were not obligated to seek immediate medical care for him, and they did not behave improperly in questioning him or taking his statement. They analogized the case to cases in which suspects who were intoxicated or under the influence of drugs at the time of their arrest made damaging admissions to officers and those admissions were admitted as evidence against them.

  WATKINS: What do you think about that?

  HEFFERNAN: I think interrogating a prisoner who has suffered a serious head injury is not analogous to questioning a prisoner who is under the influence of substances he has voluntarily consumed. I think it is cruel and unusual to delay medical treatment to an injured prisoner while he is subjected to questioning from police. And, in light of Buck Schatz’s lengthy record of violent behavior, I think the courts didn’t give enough consideration to Chester’s allegation that he suffered the head injury during the interrogation, rather than in the car crash.

  But, unfortunately, none of these issues are currently live. We’re now just days from the scheduled execution, and what we are now arguing before the court is the constitutionality of the lethal injection protocol the state plans to use on Chester.

  WATKINS: How do you feel about your chances?

  HEFFERNAN: Optimistic. Other than maybe Buck Schatz, I don’t think anyone wants this to happen. In the latest round of oral arguments, the judges had some sharp questions for the state about their knowledge of the effects these drugs would have on someone of Chester’s advanced age, and I don’t think they got very persuasive answers to those questions. I think we’ll get a stay of execution.

  WATKINS: I hope so.

  PART 5

  2011: AMERICAN JUSTICE

  24

  “It’s good to see you, Mr. Schatz,” Dr. Pincus said as he opened the door to his office.

  “Wish I could say the same,” I told him as I pushed my walker past him and made my way to the couch. I didn’t bother trying for the chair anymore. I was seeing Pincus twice a week, and this was my seventh session. I didn’t exactly like coming here, but it wasn’t like I had anywhere else to go. I figured Pincus was slightly better company than Gus Turnip and the Lunch Bunch.

  “How have things been with Rose?” Pincus asked as he fetched the ashtray from his desk drawer and turned on the ceiling fan.

  “Normal,” I said. I tapped my pack of Lucky Strikes against my palm and one popped out of the pack. I stuck it between my lips and flicked my lighter. “I don’t think we’ve really talked about it since we had, you know, the conversation. But William has been coming by every day for half an hour or so. He’s taking the bar exam soon, and he’s been spending most of his time studying, but he’s making a point of seeing us. He’s not really doing anything but studying, and we aren’t up to much either, so we never really have anything to talk about, but he keeps showing up. I know the only reason he’s still in town is because of Rose’s illness. He obviously knows about her decision, but I don’t remember telling him about it, so either she told him when I wasn’t around, or I was there and I just don’t remember it. It’s nice of him to think about us, but it feels ominous, like he knows we don’t have much time left.”

  He set the ashtray on the coffee table and slid into his chair. He tapped his ridiculous Montblanc ballpoint against his pretentious leather-bound notebook. “Has your memory improved since you started confronting this problem?”

  “I’m not sure,” I said. “It comes and goes. I still forget it’s all happening sometimes, but when something reminds me of it, it rings a bell. It’s not like I am hearing about the whole thing for the first time anymore. Maybe talking to you doesn’t do anything. Maybe it just sank in, through repetition.”

  “Maybe,” Pincus said. “But you told me the first time we met that things don’t get better, that everything is on a downhill slide, and that what is lost is irretrievable. Do you still believe that, Buck?”

  “My wife is dying, and my son is dead. My outlook has not changed much.”

  Pincus wrote something in his notebook. I sat and watched him and puffed on my cigarette. When he finished, he looked up and said, “This is the second time you’ve come here without Rose. I asked you why she wasn’t here last week, and you said she was busy. I didn’t believe you.”

  “I asked her not to come,” I said.

  “She wasn’t very happy about that, was she?”

  “I think she’s glad I’m still doing this. But I don’t think she was pleased to
be left out of it.”

  “Why don’t you want her here?”

  “I don’t agree with the decision she’s made. I am angry, and I’m sad, and I don’t want to talk about it.”

  “You don’t want to burden her with your feelings about what’s happening.”

  I nodded. “Yeah, something like that.”

  “You think you’re being stoic by dealing with your feelings this way, but have you considered the fact that while you’re dealing with it on your own, she is having to deal with it on her own? You’re not taking a burden off her shoulders. You’re compounding her sorrow by being aloof and unavailable during these difficult times.”

  I stubbed out the cigarette I was smoking. “When you put it that way, you don’t make me sound like such a good guy.”

  “Then maybe you should reconsider how you respond to these difficult situations. Do you think you withdrew from Rose after Brian died?”

  “I don’t like to talk about that.” I lit another cigarette.

  “I think that’s my answer, then,” Pincus replied. “Do you think that made things easier for her?”

  “I guess it just made things easier for me. I just don’t know how I could stand to have handled it any differently. I could hold it together as long as I didn’t talk about it. I don’t see how anyone would be better off if I’d allowed myself to fall apart.”

  “If you just let these things fester, you will never get past them.”

  “I won’t get past them anyway. How am I supposed to get past losing Brian? How will I get past losing Rose? Where am I even trying to go that I need to move past these losses? You are wrong. Things are irreparably worse than they were before, and they’re going to continue to get worse. I will suffer every day of the few remaining years I have left, and I will die miserable. I just don’t see any point in whining about it all the time.”

  Pincus scribbled in the notebook. When he was satisfied with whatever he had written, he leveled his eyes at me. “Do you want Rose to die miserable, Buck?” he asked.

  “You know I don’t.”

  “Well, what are you going to do about that?”

  I stubbed out my second cigarette and immediately lit a third. “I don’t know. What do you suggest?”

  Pincus clipped his stupid pen to the front of his stupid notebook and set it on his stupid coffee table. “Being aloof and closed off may be the easiest way for you to bear your pain, but it doesn’t seem to make things easier for Rose. Your goal needs to be to get to a point where you can talk to Rose about these things. And I think, the sooner we can get you there, the better it will be for everyone.”

  “Maybe after Tequila leaves town,” I said. “He’s taking us up to Nashville tomorrow, and then he’ll be flying back to New York.” I lit another cigarette. “When he’s not around to distract us, we’ll have to deal with this.”

  “You’re going to Nashville for the execution?”

  “Yes. Unless the Supreme Court or the governor intervenes, we’re going to go watch Chester March die.”

  “You know, I’ve been listening to Carlos Watkins’s radio show,” Pincus said.

  I snorted. “Isn’t that delightful to hear. Do you think I need to talk to him as well?”

  “I’m not sure. There’s been a lot of discussion on the Internet. Some people think that Carlos has been way too trusting of Chester, but a lot of people think his conviction should be overturned because of your conduct.”

  “If it was their daughters or sisters he killed, I bet they’d think differently.”

  “I can understand that, but Professor Heffernan is also very persuasive. It’s not about what Chester did or what he deserves. It’s about what kind of country we want to live in.”

  I stubbed out my Lucky Strike, and that meant it was time to go. I could tolerate three cigarettes of Dr. Pincus, but any more pushed my limits. “I want to live in a country where innocent women don’t get murdered. And I’m happy to kill a few scumbags like Chester March if that’s what it takes to get us there. I think our time is up.”

  “All right, Buck. Think about opening up a bit more with Rose this week. I think you’ll have fewer regrets that way.”

  “When she’s gone, you mean?”

  “Well, yes.”

  “When she’s gone, I’ll have nothing left but regrets. Enjoy the rest of your week, Dr. Pincus.”

  TRANSCRIPT: AMERICAN JUSTICE

  CARLOS WATKINS (NARRATION): The Tennessee Supreme Court has ruled against Professor Heffernan, finding that the lethal injection protocol does not need to be modified to account for the age, weight, or health status of the condemned individual, because the drug doses administered are sufficient to sedate and then kill a human being of any age and any weight.

  They also rejected the contention that lethal injection is cruel and unusual. Time grows short, and hope dwindles for Chester March. Professor Heffernan has filed an appeal to the U.S. Supreme Court, and there is a petition begging Tennessee governor Bill Haslam to intervene on Chester’s behalf, but the Supreme Court rarely stays executions, and governors almost never grant clemency. At Riverbend, corrections officials have begun preparing for an execution. And Ed Heffernan has been preparing as well, in his own way.

  ED HEFFERNAN: I didn’t think it would come to this. I really didn’t. It’s been several years since we last put someone to death in Tennessee. Every time we kill somebody, I tell myself that this will be the last time. And I believe it, too. It’s incredible to me that we keep putting ourselves through this process.

  You know, the prison hires grief and trauma counselors to be on-site to talk to the staff that participate in the execution? The journalists who witness these always come away horrified. I read the same article in The Tennessean after every execution; in the abstract, people don’t think much about it one way or another, but if you make them watch, they’re shocked that this kind of thing still happens in America. You know how Professor Fields told you that jurors’ views toward capital punishment change when you show them crime-scene and autopsy photos and make them listen to victim impact testimony? Well, I’d hypothesize that those views would shift the other way if more people had to watch executions. There’s a reason states kill inmates in the middle of the night and carefully control the list of approved witnesses.

  We have a lucky class of students at the capital defense clinic this year. Most lawyers don’t get the unique experience of having their first client get tortured to death because they lost an appeal. So, I’m sure this will be an edifying professional development opportunity for them.

  As for me? Well, you’d think I’d be used to this, after so many years of capital appeals. But I’m not. I mean, I don’t think I will break down and weep in front of the students this time, but I’m honestly shocked that this is happening. I thought we had the better argument. I thought the justices finally heard us, about the barbarity of using drugs in unmeasured, untested dosages and the suffering inflicted during death by lethal injection. I thought the tide of public opinion was turning in our favor.

  And this shouldn’t matter, but I like Chester March on a personal level. He’s charming, he’s cultured, he’s personable. Even though the Supreme Court has held that it’s unconstitutional to execute the cognitively disabled, it’s up to the states to determine what constitutes a disability, and most states have set that bar at profoundly low levels—IQs in the sixties—and continue to execute relatively low-functioning individuals. And that’s its own separate horror; individuals with often no more than a sixth- or seventh-grade education, many of whom suffered horrific childhood abuse, being killed by a system they can barely comprehend as punishment for acting on impulses they can’t control.

  But Chester is one of very few college graduates who has been convicted of a capital crime. In some ways, if you believe he is guilty, that makes him less sympathetic; unlike some of these other offenders, he should have known better. But in certain ways—and maybe this reflects biases on my part—he’s
also easier to relate to. I care deeply about all my capital clients, but this execution is going to haunt me.

  WATKINS (NARRATION): Corrections officials have already taken Chester from the secure wing of the prison where he has spent the last thirty-five years and put him in a special cell adjacent to the execution chamber. Ed hasn’t left the prison since they moved Chester down; he is showering in the guards’ locker room and napping in his car when Chester is asleep. Otherwise, he is by his client’s side.

  A Riverbend spokesman told me that the Department of Correction has obtained the drugs for the lethal injection and that they are on-site. The protocol calls for a cocktail of three drugs. The first is sodium thiopental, a sedative that will render Chester unconscious. Then comes vecuronium bromide, a powerful muscle relaxant that is commonly used in surgical anesthesia. This drug will paralyze Chester’s skeletal muscles so he won’t twitch or convulse. It will also shut down his respiratory function; when this drug is used in therapeutic settings, the patient under its effects will typically be kept on a ventilator. Finally a lethal dose of potassium chloride is administered, which will cause massive cardiac arrest.

  The process will take ten to fifteen minutes, and if the sodium thiopental isn’t effective in rendering him totally insensible, Chester will endure the experience of being slowly suffocated as his pulmonary system struggles and ultimately fails to operate under the effects of the vecuronium while, at the same time, his heart is being melted by corrosive potassium.

  I caught up to Tennessee deputy attorney general Peter Clayton outside the prison, where he’d been speaking to corrections officials about the preparations for the execution. Clayton argued on behalf of the state against Heffernan in the final round of appeals, and he, along with Buck Schatz, will be the law enforcement representatives who will witness Chester’s execution.