by David R. Dow
I wrote, Nothing makes it clearer where money is needed most than for the people who need it to be the same ones in whose hands your own life depends.
I told her how grateful I was to her and her legal team. After I signed it, I cried for the third time since I arrived.
* * *
• • •
Thumbtacks are considered contraband, so I used tape to hang three stacks of ten pages each on the wall above my bunk. I pulled down one each day, in reverse order, starting with 30.
On day 13 the transport team came by and told me I had a phone call. It had to be one of my lawyers, because they were the only people I was allowed to talk to on the phone. They took me to a tiny office down the hall from the warden’s suite. It was empty except for a small bridge table with folding legs and an olive-green rotary-dial phone. It rang as soon as we entered. One of the COs answered, identified himself, and handed the receiver to me.
She skipped any pleasantries. She told me her office had received a form letter from the district attorney’s office. The letter was sent to all attorneys who represented people whose cases had been investigated by a particular homicide detective. It was Detective Cole, the bad cop from my case. This detective, according to the letter, had stored physical evidence from several of the cases he investigated in cardboard bankers’ boxes inside his garage. It was unknown whether any of this evidence had been wrongfully withheld from defense lawyers or was even relevant to any of the cases. The letter from the DA said defense lawyers were being notified out of an abundance of caution.
Detective Cole’s unorthodox practice was discovered after he died of a heart attack three days before his fifty-sixth birthday and his second wife decided to move to North Carolina to be closer to her children. While packing her possessions, she opened an unfamiliar box. Inside she found a bloodstained ball-peen hammer, a rape kit in a plastic baggie with an unbroken seal, and a thrift store’s worth of clothes. She panicked and called the detective’s former partner, Detective Pisarro. He said he had no idea what was going on, and he called the police chief and the district attorney right away. That afternoon, police officers, lab technicians, and prosecutors put up crime scene tape and sifted through everything in the garage and inside the former detective’s den. They emerged with a total of eleven boxes full of evidence. By the time the last vehicle drove off that evening, satellite units from five local news stations were broadcasting from the driveway live.
There was no reason to think any of the evidence had anything to do with my case, Olvido told me. My lawyer was calling just to let me know I might get contacted by reporters, because Cole had been the lead investigator on my case, and I of course was set to die in less than two weeks.
She said, I apologize for calling with non-news. I thought about waiting until we know more, but I didn’t want you to get your hopes up if some TV crew comes to visit.
I said, I don’t talk to the media.
She said, I know. It’s just that once guys have dates, the reporters can be relentless.
We said our goodbyes, and the same CO who had handed me the phone materialized at my side and took it back. I was probably just imagining, but he seemed to look at me with sympathy, and I wondered whether he had been able to hear the call. Then I wondered whether the guards who would drive me to the execution chamber, and the others who would strap me to the gurney, would also look at me with sympathy, or whether steeliness was a prerequisite for the job.
Back in my cell I washed my face and neck in the sink. I put on a clean shirt and lay down on my bunk. I ate six potato chips. I tried to drink the iced tea that had come with my dinner, but it was as sweet as dessert, so I poured it through my fingers to save the ice and filled the plastic cup with water from the tap. Before dawn a CO banged open the beanhole to make sure I was alive. I raised my head and said, Just sleeping, then rolled over, pulled my knees to my chest, and slept until the middle of the afternoon.
If I’d had the ability to concentrate, I would have written a catalogue of everything that had surprised me over the preceding seven years, beginning with the day I shook Tieresse’s hand and felt a love I had been unable even to imagine, and ending with the final moment I held the pen in my hand. Seven days before my date, my legal team showed up with yet another.
Olvido spoke. She said, Did you know the police found a bandana in the backyard of Tieresse’s house when they were investigating her murder?
I said, No.
She said, Neither did we. It’s not logged as evidence. There’s a reference to it on a page of a police report that’s misfiled.
I said, So what?
Olvido said, Did you wear a bandana at home or the restaurant?
I was not sure if her question was rhetorical.
I said, A bandana? Like a cowboy? Are you serious?
Luther said, The bandana was in one of the boxes in the detective’s garage. Pisarro was the one who found it. We talked to him yesterday. He assumed it had been given to the lab techs. Turns out, it’s still in an evidence bag. The seal isn’t broken. It’s never been tested for DNA.
Maybe I was unusually slow from not eating. The three of them were grinning like they had won the lotto, but I did not see why any of this mattered. Laura said, If there is DNA on the bandana, and the DNA matches the unknown DNA from the murder weapon, you’re getting out of here.
My heart started to race. They explained to me the procedure. They would ask the trial judge to order testing on the bandana. If for some reason he refused, they would appeal to the state court. If for some reason they lost again, they would go to federal court. I thought to myself, So this is what they sound like when they think they might win.
I said, I am not getting my hopes up.
Since I arrived here, the state of Texas had carried out 115 executions. Most of those guys I didn’t know very well, but 13 I did, and 12 of the 13 were less scary than inmates I met in the county jail. This entire place made no sense to me. To be optimistic, I’d have to see logic or rationality where I never had before.
Olvido said, Neither would I. But this is the sharpest arrow we’ve had in our quiver since the day we got appointed. We’ll be in touch.
Before they stood up to go I put my left palm against the glass and said, No matter what, thank you.
Olvido said, Don’t thank us quite yet.
But she was smiling when she said it.
* * *
• • •
Earlier I was going to tell you that Tieresse had cancer. For several months she kept it from me. A few weeks before our wedding, she confessed she’d been hiding a secret. I braced for something awful. Her secret was melanoma. It had spread to her liver and lungs, but a year before, her doctors in Houston used their clout and hers to get into an immunotherapy trial being run out of a cancer hospital in Atlanta. Twice a week she flew in for an injection. After eight months of shots, she was cancer-free. Her prognosis was terrific, but the doctors were reluctant to say she had been cured. Perhaps the cancer would return. Those oncologists have good reason to be the world’s biggest pessimists. Tieresse wanted me to know.
I said, Why in the world would you keep that from me?
She said, Because if you knew, you would have felt like you were abandoning me if we hadn’t worked out. I didn’t want you to stay with me just out of guilt.
I said, The Jewish guilt gene from my mother wasn’t passed down to me. I’d stay with you no matter what because you’re my partner.
She said, Okay, vaquero. Anyway, now you know.
By the next morning, I had a list of questions. I asked about the length of the treatment, how the vaccines were formulated, which lab did the work, how many milligrams she received, what were the sixth-month, one-year, and five-year survival rates, on and on. She smiled patiently, and in response to every question I asked, she told me she didn’t know. I was speechless. This amazi
ng woman could tell me how many and what kind of roofing nails were used to pound shingles into a spec house she’d built five years ago in a subdivision in Des Moines, but she didn’t know the answers to any of my questions about her treatment and prognosis. I was frustrated and stunned.
I used to call her Reesa when I was angry. I said, Reesa, this is your life.
She had said, Amor, I just told them I was not ready to die, to please do whatever they could to save me, and I followed their advice. What do I know about T cells and proteins? They are the experts. I put my life in their hands. I’m not indifferent. I’m just aware of my limitations.
She leaned forward and kissed me, and my anger turned to awe.
Walking back to my cell, I recalled the feeling I had that day. Some of the guys on death row spend hours every week writing letters to their lawyers offering suggestions and advice for which issues to pursue and how to raise them. If the lawyers don’t listen, the guys get mad. Not me. I had learned my lesson. You have to trust the specialists. I told all my lawyers I was innocent, probably more often than they wanted to hear, but Tieresse was the smartest person I ever knew, and I was at least smart enough to know that. Not once was I even slightly tempted to give my legal team practical advice.
Sargent told me that when Águila was executed, his case was still pending before the Supreme Court. I had said, That can’t be right. They can’t kill you until your case is over. Sargent had laughed. He’d replied, Shit, Inocente, ain’t you been here long enough to get over bein’ so ingenuous? When it comes to the legal technicalities, I hadn’t. And actually, I’m still not. But what follows is my layman’s understanding of what happened over the next seven months.
Two days after they came to see me, with five days to go before my scheduled execution, my legal team filed an appeal asking the court to grant a stay and order DNA testing on the bandana. Reinhardt attended the hearing. The district attorney said this was a delay tactic. He told the judge there was not any proof there was DNA on the bandana, and even if there were, it would not establish anything because there was proof I was there. But the trial judge did not see it that way. He asked the district attorney, If there is DNA on the bandana that matches DNA found on the murder weapon, is there a better explanation than that whoever killed the victim was wearing the bandana?
The judge did not wait for an answer. He said he was granting a stay of execution and ordering forensic analysis of the bandana. As soon as he banged the gavel, the prosecutor hustled out of the courtroom, with Reinhardt at his side. An hour later the district attorney’s office filed an appeal.
It was Thursday afternoon when Olvido called me to explain. My execution date, scheduled for Wednesday of the following week, was still almost a week away, so I asked, Why can’t you all just go ahead and test the bandana for DNA anyway and then figure out what it all means later?
Olvido said, We offered, but the district attorney controls the evidence and he refuses to release it until ordered to do so. Your wife’s son does not seem to care for you.
Sargent must have bribed McKenzie to deliver a kite, because when I got back to my cell, a tightly folded triangle was peeking out from under my pillow. Sargent had written, Rumor is something’s cooking. I briefly summarized what was happening, and left the folded kite on my dinner tray. Sargent wrote back, If it would help, you know I’d pray for you, Inocente. He signed it with a drawing of a raised fist.
On Monday, with two days to go, the warden came by to explain the routine. He stood in front of me while I sat on my bunk. He was wearing khaki trousers, a blue shirt with an open neck, a tan corduroy coat with patches on the elbows, and suede ankle boots. I expected him to take a puff on a pipe. He looked like a college professor.
He addressed me by my name. He said I could have my usual visits on execution day until noon. I told him I do not have any visits. He looked at the captain, who was standing in the doorway. It was the first time I noticed him there. The warden said in that case they might transport me to the other unit as early as ten. He said it like that, other unit, and for a moment I was transported in space and time. It was a month before I opened La Ventana. I was in a tiny village in northern China, shopping at the local market. I do not speak a word of Chinese. The vendors I met didn’t speak a word of English. I had no idea what I was buying, whether it was bitter or sweet, whether to cook it or eat it raw, whether it might cause me to fall ill or die. But it was exciting, because I knew I would be going home tomorrow with a story to tell.
Somebody was shaking me by my shoulders, and I was back in my cell. The warden was asking, Rafael, Mr. Zhettah, is everything all right? I came to, and I thought to myself, Seriously, you are going to ask me that? but I just nodded and said, Yes, sir. I noticed the captain hadn’t moved, still standing there, with his hands clasped behind his back. I wondered whether he was holding Mace. What would they do if I grabbed a shank and held the warden hostage? He told me there was a form I could use to leave my personal property to other inmates, and he asked whether I had made arrangements. I blinked and he said, For after. Who would even attend my funeral, if I had one? A wall of cold air poured in through the open door. I could hear the air compressor click on, and I shivered.
He was looking at me, waiting. I hadn’t thought about my body, I don’t really believe in all that, but for some reason, I didn’t want to be buried at the prison. I asked whether I could leave my body to a medical school. He glanced at the captain, who shook his head. I said I would ask my lawyer to take care of it. He told me there would be a chaplain, if I wanted one, and the staff at the other facility would be able to provide a sedative. He asked if I had any questions, and I shook my head. He took half a step toward the door, giving me room to stand. I wondered whether I should shake his hand. He said, Please be sure to let me know if you need anything, and then he was gone.
I looked around my cell. I had the chess set Águila left me, but I didn’t know anyone who played. I’d give my book of Shakespeare sonnets and Rilke poems to Sargent, except he probably had them already, perhaps even had all of them memorized. It occurred to me he had sandbagged me in our competition. I laughed. For a year I’d lived next door to a Cambodian guy I’d hear crying every night. McKenzie called him Chairman Mao. One day I said, Mao was Chinese, and McKenzie said, What the fuck is it to you, za-heater? I decided I’d give Mao my hot plate and radio even though I never heard him speak a single word of English. I was racking my brain trying to think who might want my legal materials or my lamp when another blast of cold air swept in under the door. I was suddenly nauseated and kneeled before the toilet in case I threw up. I said, Why’s it so cold in here? Nobody answered, but a few minutes later Guard Johnson raised the beanhole and handed me a styrofoam cup of tea. I said, Thank you, ma’am, and she said, You’re welcome, son. It was foggy outside—I could tell by the halos surrounding the perimeter lights—and unusually quiet on the row. From right outside my door, an overhead fluorescent bulb crackled and buzzed. I fell instantly into a dreamless slumber. I awoke briefly when a trustee passed a dinner tray into my cell, but I was too deep inside my sleep to eat it.
When the transport team came by early the next morning to tell me I had a call, I was filling out the form the warden had left behind. Olvido reported there had been no word from the Supreme Criminal Court. She explained the court usually handed down opinions only on Wednesdays, but given how Wednesday was my execution date, she had expected to hear something sooner. She told me that her team already had the papers ready to appeal to federal court but there was no point to doing so as long as what they had already filed was still pending.
I said, But what if it’s still pending?
She said, It won’t be.
I said, I found out there was a guy I knew who got injected while his appeal was being considered.
She said, That was a different situation.
I said, My trial lawyer told me I probably wouldn�
��t be convicted, and definitely wouldn’t be sentenced to death.
She said, Juries are unpredictable. But judges have a job.
I said, That’s true, but their interpretation of the description might be different from yours and mine.
I was trying for levity, but she did not respond. She might not have heard me.
She said, I will call as soon as there is news.
The COs checked on me every hour. Sometimes they would pretend not to, raising the beanhole and asking, Anything you need? Other times I would hear them whispering outside my door.
Tieresse’s charitable foundation financed some researchers interested in the psychology of political dissidents in authoritarian countries. They wanted to understand how some men and women refuse to wilt. One of those they studied was a Russian physicist named Sharansky. He had spent years in a Soviet-style gulag, sentenced to hard labor. Even from Siberia, he never stopped his agitation. Eventually, bowing to pressure from President Reagan, the Russians released him. The KGB drove him to a bridge connecting East and West Berlin and instructed him to walk directly across and not look back. Sharansky walked backward into West Berlin, zigzagging the entire way. Tieresse met him a few months later in Israel.
She said to me, When I met him, I was expecting someone imposing. Instead, I shook the hand of a bald ectomorph. I don’t think he weighed a hundred and twenty pounds. I asked him what had sustained him. He told me resistance is simple when the evil is everywhere.
I knew that when they came for me the following day I wouldn’t resist. I would walk to my death as if unaware of my fate. I had twenty pounds on Sharansky, and a twentieth of his will. Less, probably. You can’t will yourself to be a genius. It’s the same with courage.
Some people will want to know whether I went to sleep. No, I did not. On Wednesday morning at eight when my cell door opened I was trying to meditate. The captain handed me the handset to a cordless phone. Olvido said they were filing something in the federal court so it would already be there if the Texas court did not intervene by noon.