David Dow - The Autobiography of an Execution

Just as I was arriving at the cabin, at nearly five o’clock, Jerome called. He said, The judge ruled against us in O’Neill, and the clerk from the federal court of appeals called. They said that if we plan to file an appeal, it has to be there by five tomorrow.

The next day was Saturday. I asked Jerome whether he was sure that was what the clerk said. He said, I can e-mail you the order if you want me to. I told him that I’d be at the office by noon.

Upstairs, Katya was in the kitchen making cookie dough. Lincoln was licking the beater, and Katya was giving cherry-size pieces to Winona. I said, Looks like you guys will have enough energy for a superlong walk.

Lincoln said, Yippee.

I cut off the end of a cigar. When Lincoln, Winona, and I got outside, I lit it. Winona went running off ahead, chasing sand-crab smells. Lincoln said, Dada, please don’t smoke that.

I said, Amigo, I don’t smoke very many anymore, and I like how they taste, and they help me to relax. Lincoln and I were holding hands.

Winona circled back around to us. She had found a tennis ball. Her snout was covered with muddy sand. Lincoln said, Dada, if you smoke cigars you’re not going to be able to spend as much time with me.

I said, You’re a smart kid, amigo. I held the cigar until it burned itself out.

Lincoln said, Thank you, Dada.

AFTER LINCOLN WENT to bed, Katya and I sat outside on the deck with a pitcher of margaritas while the steaks were on the grill. It was cold, but not uncomfortable. The sky was clear, and we could see Orion, Taurus, and, inside the bull, the cluster of blue stars known as the Pleiades. I told her about O’Neill and that I would have to drive back to Houston first thing in the morning. She said, Do you really think the judges will be working this weekend?

I said, Of course not. This is their way of saying fuck you to us.

We sat and looked at the sky. I said, I saw O’Neill this morning. He did not remember me at all. He was randomly quoting from the Bible. At least it seemed random. His dad knew it was from Isaiah. They don’t want to watch the execution.

Katya lifted my right hand and put it in her lap. She said, In my astronomy class, I had to calculate the age of the Pleiades. The only time I could ever do math was when it involved the stars. I asked her how old they were. She said, I don’t remember exactly. I think one hundred million years or so. If it weren’t for Lincoln, that would change my perspective on the meaning of everything.

I said, It’s funny O’Neill was quoting Isaiah. The Pleiades are mentioned in the Book of Amos. You who turn justice into wormwood, and hurl righteousness to the ground. Seems appropriate, doesn’t it.

She said, I don’t know about Amos, but the Red Hot Chili Peppers sang about them. Wanna hear?

I smiled. I’ll take a pass, gorgeous.

She said, Why don’t you take the steaks off the grill and let them rest in the kitchen for a while?

I said, That is the perfect idea.

Later, while we were still lying in bed, I told her about the polygraph examination. Green answered yes when Faison asked him whether he had personal knowledge about the deaths of the Quaker family. He answered yes when asked if Ruben Cantu killed them. He answered yes when asked whether he had paid Cantu to kill Tricia Cummings. He answered yes when asked whether Cantu told him that he had killed the wrong person. He answered yes when asked whether Cantu had left a gun at the scene in order to make it appear that Dorris Quaker had murdered her children and then committed suicide. When I finished telling her about the questions and answers, she said, And? I told her that Faison would have a complete report later, but it was his opinion that Green was being truthful on all the questions. She said, I am not going to say I told you so.

I said, Why not?

She said, Because I’m starving, and I want you to bring my steak in here to me.

AS I WAS PACKING my bag the next morning Lincoln said, Why do you have to leave today, Dada? I told him that I needed to try to help someone. He said, But it’s probably not going to work, right?

I wondered whether he had heard me say that, or deduced it himself. He said, Won’t the person die anyway? I said yes, but that I still thought I needed to help him. He said, That doesn’t make any sense. Besides, why can’t his mom or dad help him?

I said, Amigo, he doesn’t have anyone who can help him. You and I are very lucky. We have lots of people who love us and who would try to help us if we were in trouble. This man I am trying to help doesn’t have anyone. I think it’s important to try to help people who don’t have anyone. Don’t you?

He was quiet for a minute. I asked him whether everything was okay. He said, Yes, I’m just thinking. I touched his cheek. He said, Dada, I’m glad you are trying to help that person, but I still wish you were staying with Mama and me for a little while longer.

O’NEILL HAD BEEN PLACED in mental hospitals more than a dozen times, usually by his parents, a couple of times by the courts. In a layperson’s terms, he was crazy. But being crazy matters in different ways at different phases of the criminal justice system. At a trial, if a defendant is too mentally ill to aid his lawyers, then he is incompetent to stand trial, and so the government keeps him in a mental institution until he is capable of standing trial or dies, whichever comes first. If, following a trial, a jury finds that the defendant did not know the difference between right and wrong, then he is criminally insane, and he can’t be sent to prison, but he can be sent to a mental institution, until he is healed or dies, whichever comes first. If a defendant is not found insane and is sentenced to death, but he becomes crazy while on death row, then the state cannot execute him, so the person stays crazy in prison until he dies, or the state medicates him so he is not crazy anymore, and then they can kill him. Contrary to conventional mythology, being crazy is not a get-out-of-jail-free card, and life in the cuckoo’s nest isn’t all that different from life in the joint.

The problem we had in O’Neill’s case, though, is that in 1996 Congress passed a law that basically makes it impossible for death-row inmates to challenge their convictions in federal court more than one time. When O’Neill went to federal court the first time, his lawyers did not say he was incompetent to be executed, because his execution was still years away. In addition to that, he had gotten worse and worse over the years. He might not have been incompetent to be executed when he first arrived on death row, but he certainly was now. We had already been to federal court, however, and we were not being successful in persuading the courts that they should allow us to come back. We were pinning our hopes on an obscure Supreme Court case that seemed to create an exception to the law for people who were raising issues that did not previously exist. The lower federal court was not persuaded, and we did not have much confidence that the court of appeals would be persuaded, either, but if the court of appeals wanted our appeal by Saturday afternoon, that meant they would probably rule against us first thing Monday morning, and we would have all day to get to the Supreme Court.

Everyone was at the office when I got there. Most lawyers have the philosophy that they should try to win in whatever forum they happen to be. So if you are in the trial court, think about winning there, not in the court of appeals. If you are in the court of appeals, think about winning there, not in the Supreme Court. The problem with that approach for death-penalty lawyers in Texas is that the federal court of appeals with jurisdiction over our clients consists mostly of judges who are utterly unprincipled and hostile to the rule of law. They look for ways to uphold death sentences even where constitutional violations are egregious. In recent years, the court upheld a death sentence of a black inmate who was sentenced to death by an all-white jury after prosecutors systematically removed every potential juror of color from serving. It upheld the death sentence of a mentally retarded inmate after his lawyer, who was afflicted by Parkinson’s disease, neglected to point out the inmate’s IQ score. It upheld the death sentence of an inmate who was probably innocent on the ground that his lawyers had waited too long to identify the proof of innocence. It upheld the death sentence of an inmate whose lawyer had literally slept through the trial. These judges get to be judges not because they are wise, but because they are friends with their U.S. senator, or a friend of a friend. They are smart, however. That means they are very good at hiding their lawlessness inside of recondite-sounding legalese. They look for reasons to ensure that a death-row inmate will get executed, and they usually find one. And not very many people care. Do you care that the rights of some murderer were violated? Most people say that the murderer got treated better than his victim, and that pretty much sums up the attitude of the judges on the court of appeals as well.