David Dow - The Autobiography of an Execution

He said, It was the best night I’ve had in years. We sat quietly for nearly a minute, then he added, I heard yours was pretty good, too.

I told him about the last-minute activity in the O’Neill case, and then I told him again about our plan for the hearing. But I had a bad feeling I had used up all my luck. Maybe he read my mind. He said, You remember that story I told you about when I was in the psych hospital in New Braunfels after the fire? I said I did. He said, I feel like that right now, man. My will is spent. I ain’t gonna tell you to give up or to stop what you’re doing, but if we lose, it’s okay. It really is. I’m ready to just be done with it, you know what I mean?

I knew exactly what he meant, but I didn’t say so. Instead I said, I’m not planning for us to lose.

WHEN I GOT HOME, Katya and Lincoln were there, playing a video game that I did not understand. Lincoln shouted, Dada, and came running to me. I kissed Katya and she hugged me tight, squeezing the air out of me.

I said, Hey, be gentle with me, and Lincoln laughed.

He went to the closet under the stairs and came back with our baseball gloves and a tennis ball. He said, Dada, can we play catch? I looked at Katya and she nodded. She said she’d go pick up Thai food while we were playing.

The temperature had dropped into the upper forties, which in Houston is cold enough to justify a fire in the fireplace. Lincoln and I carried in some logs, and Katya put the take-out cartons on the coffee table in the library. I said, Hey Linco, do you want to try this chicken with basil and peppers?

He said, In case you forgot, Dada, I’m a vegetarian. I told him I had not forgotten, that I was only kidding around. He said, Oh. Well, it’s not very funny. You shouldn’t kill animals to eat them.

Katya said, What a guy.

I said, I know it.

And I thought to myself, I wonder if I disappoint him.

FOR THE NEXT TWO DAYS, I went to my office at five so I could be home by eleven or twelve. Katya, Lincoln, and I rode our bikes, sat by the fire and watched SpongeBob , read books, went out to lunch, played board games, tossed the tennis ball, and saw some movies. On Thursday morning, as we were finishing our pancakes, Lincoln said, What are we going to do when you get home today, Dada? It was the day of Green’s execution. I told him that he was going to have to hang out with Mama today, because I had to go to the prison. He said, Are you trying to help some person? I told him that someone else was trying to help the man. I was just going to go visit him. He said, Why can’t you help him, too?

It had been hard enough explaining to Lincoln that I try to help people who have killed somebody. It would be harder to explain that, in truth, I can’t really help anybody. Last summer, Gary, Kassie, and I spent a week in East Texas, in the Arnold Broxton case. The only issue in the trial was whether Broxton is mentally retarded. There was no jury. A judge would decide. With an impartial adjudicator, it would have been a close call. Of course, with an impartial adjudicator, we would have been somewhere besides East Texas.

Broxton’s IQ scores were right on the border of mental retardation, so the critical factor was whether we could produce evidence of what are called adaptive behavior deficits. People with mild mental retardation can live independent and productive lives, but they have limitations that result from their mental health. They cannot do certain things, like attend to their hygiene, hold a job, maintain a home, and the like. Lawyers prove that their mentally retarded clients have these adaptive deficits by calling witnesses who have known the inmate for a long time and can testify as to these limitations.

Broxton has a younger brother. He would be our key witness on adaptive deficits. He had seen his older brother fail and fail again. He had worked with Broxton at a flooring company and he recounted, among other things, that Broxton could simply never learn how to lay tile. In the days leading up to the trial, Broxton and his brother had several telephone conversations. The sheriff’s office recorded them. At the trial, the state planned to use the recordings to prove that Broxton was aware of what was happening in his case and was therefore not mentally retarded.

Now this argument is as moronic as it is a non sequitur. Mentally retarded inmates can often understand what their lawyers tell them, and we had told Broxton what the hearing was about, and how we were going to proceed. But that’s not the point of this story. Broxton and his brother had spent pretty much all their lives either in inner-city housing projects or in prison. Their idiom reflected that history. The language in their conversations was R-rated and coarse. Every other word was nigger -this or nigger -that. Broxton had been convicted of murdering a convenience store clerk; it was not a high-profile or an infamous crime, but we were in a small town, where every murder trial is a big deal, especially when the defendant is black. East Texas timber country is still a Klan-friendly place.

The local TV news stations were filming the proceedings from beginning to end. The lawyer for the state was the elected district attorney, and he was putting on a show. He played a CD-ROM of the conversations between the two Broxton brothers. The conversations had been transcribed. He handed me a copy of the transcript, and read aloud several lines of dialogue. He did so, mimicking the patois of the Broxton brothers. Even by East Texas standards, it was appalling. I stood up and said, Excuse me, Judge. I would like the record to reflect that the district attorney is no longer speaking in his natural voice, but is trying to sound like my client and his brother. The fact that he is failing miserably at sounding like either one of them does not make his effort any less offensive.

The judge had been checking her e-mail or playing Solitaire or doing something on her computer, and she looked up, baffled. She said, Is that an objection?

I said, Not really. It is a simple expression of moral outrage.

She stared at me and said, Treating it as an objection, the objection is overruled.

The district attorney smirked. He immediately resumed his effort to sound like a brother. I started to rise from my seat again. Gary gently put his hand on my arm and, in a whisper, told me to count to ten. I said, I’m already up to thirty-seven and it isn’t helping.

This is the reality: When you know that you are not going to succeed, and that your client is going to die no matter what you do, and that it does not matter a whit whether the facts and the law are on your side, you can either do nothing and accept defeat, or modify your definition of success, but what you also have to realize is that even if you choose the latter route and opt to redefine the meaning of winning, and therefore count it as a small victory (for example) when you don’t sit silently by while a district attorney puts on his black face and carries on for the cameras with an egregious display of overt racism, your client is still going to get escorted into the execution chamber, strapped down to the gurney, and put to death.

There are some philosophers who say that we create the world we live in with our language. I am sorry to say that that is not how it works. Reality is a relentless and crushing force, and it cannot be thwarted or outrun with a lawyer’s effete semantics.

I told Lincoln that I’d try to help the person I was going to see, and I headed for the prison.