David Dow - The Autobiography of an Execution

The prosecutor reminded the judge that someone who has been convicted cannot overturn his sentence unless he can prove that every reasonable person would think he is innocent. We were nowhere close to satisfying that standard, the prosecutor said. There were any number of reasons—the insurance money, the blood in the car, the fact that Henry’s marriage was in trouble—to believe that he might have done it. If there was any reason to believe he might have done it, the judge’s hands were tied.

Everything the prosecutor said was correct. The law might not have been on our side, but principle was. When it was my turn, I reminded the judge that the only reason Quaker had ever been convicted was that his lawyer was so bad. I stuck to our story: that the evidence of guilt was massively underwhelming, and that there was good reason to think that Cantu had committed the murders.

Judge Truesdale said, I sure would like to hear from Mr. Cantu. Where is he?

I said, I’d like to know that, too, Judge.

We’d gotten Cantu’s DNA off the orange juice carton, but he was not in any police databases. He could have been dead, back in Mexico, or living next door.

She banged her gavel, and we were done. We stood as she walked out. As we were packing up our files, one of the guards who would escort Henry back to death row came over and said to me, Good luck, sir.

WE’D GOTTEN A SHORT LETTER from Walter Buckley. He was scheduled to be executed in two days. He had sent it two weeks earlier but it took awhile to reach us because he had misspelled literally every word in my address. He was not my client. He was being represented (using that term in its loosest possible sense) by Karl Christianson, a notoriously inept lawyer. Under a Supreme Court case called Atkins v. Virginia , the states are not permitted to execute people who are mentally retarded. It was difficult to figure out exactly what Buckley was talking about, but it seemed he was writing to say that his lawyer had never raised an Atkins claim. If true, this was an unimaginable dereliction. One criterion of mental retardation is an IQ of 70 or below. According to our database, Buckley had an IQ of 54. Based on his letter, I would have thought it was even lower.

As usual, Jerome felt like we needed to do something. I felt like we couldn’t. Quaker’s execution was a week away. And even though we had already written everything that I expected we would need to write, you never know. Things always come up. We didn’t know how Judge Truesdale was going to rule, and if she ruled tomorrow, I’d want to turn our attention immediately to appealing if we lost, or to holding on to our victory, if we won. I also wanted to meet with the members of the Board of Pardons and Paroles, who had the power to recommend that Quaker be released from prison, or at least moved off of death row, and to talk to the governor and the warden. We couldn’t be jumping into a case about which we knew almost nothing less than forty-eight hours before an execution. I said so.

Presaged by the envelope, virtually every word in Buckley’s letter to us was also misspelled. He used quotation marks apparently at random and no punctuation except commas, again seemingly randomly placed. Maybe he was retarded. Maybe, too, Christianson had raised an Atkins claim, and Buckley didn’t realize it. Who knew?

Jerome said, Is it okay for me at least to call Christianson and see if he raised the claim and get whatever records he has?

You don’t have to be hard-hearted to do this work, but you have to develop some defenses. We can’t save everyone. We can’t even try to save everyone.

I said, Sure. Go ahead.

MY BROTHER STEVEN was in town for the day on business, and he had brought with him his daughter Hannah, who is Lincoln’s age, so the two cousins could play. I got home an hour before they would head to the airport. The kids wanted to have a relay race against the dads. The rules were numerous, if not complicated. In good nature, I repeatedly violated one rule. I was just clowning around, but seven-year-olds don’t always laugh at the same things I do. Lincoln began to get angry and raise his voice. He told me not to cheat. I told him not to scream at me and promptly cheated again. He raised his voice again. I told him that if he did it one more time the game was over, and I cheated again. His entire body tensed up and he shouted at me, Stop cheating, Dada.

I said, That’s it. Game’s over, amigo. Tell Hannah and Uncle Steven good night and go get ready for bed.

Dada, you’re being too hard on me.

I pointed toward his room. He stormed up the stairs. I walked into the kitchen and poured myself a drink. Steven followed me in while Hannah stood by the front door. I asked whether Hannah would be disappointed if they left without finishing the game. He said, She will be, but don’t worry about that.

Steven and his wife have three children. Hannah is the youngest. I asked whether he thought I had been too tough. Steven said, He seemed to me like he was trying to control himself. You got him pretty mad.

I said, He needs to learn to do what I say, no matter how mad he is.

Steven said, I agree.

I said, I’ll go upstairs and get him. We’ll be right down.

After we finished the game, and lost, of course, with me playing strictly by the rules, and after Lincoln had brushed his teeth and we had read a book and told a story and sung a song, I said, Amigo, I’m sorry I cheated and made you mad, but when Mama or I or Nana or one of your teachers tells you what to do, you have to do it, even if you don’t want to, and even if it makes you really mad. Can you try to do that?

He said, I’ll try, Dada. But it’s hard sometimes. I told him I knew, but I wanted him to try hard. He said, Okay, I will. Will you sleep with me for five minutes?

I’m no expert on the Holocaust, but I do know that one group of scholars blames the tragedy on an essential feature of the German personality. Katya and I have discussed this, of course. When we were in Germany visiting her relatives, she pointed out to me all the ways that Germans defer to authorities that Americans do not even notice. Once, riding the train from Manhattan to New Haven, she commented on how the riders were oblivious to the conductors as they walked through the cars asking for tickets. On German trains, the riders treat conductors like they are lords. It’s the uniform.

Which is worse, too much deference, or not enough? How do you insist to a child that he do what others say, without raising him to be an adult who says he had to do what he did because someone told him to?

TEN HOURS BEFORE Buckley’s execution, at eight o’clock on Thursday morning, Jerome walked into my office with a sheaf of papers and reported that Buckley had dropped out of school in the seventh grade, that he had taken three IQ tests and scored between 53 and 59 on all of them, that he had never been able to live by himself, that three doctors, including one employed by the state, had deemed him mentally retarded, and that, in spite of all that, his lawyer, Attorney Christianson, had decided not to raise a claim that Buckley’s retardation made him immune from execution. I asked Jerome why not. He said, Christianson told me that when he went to visit Buckley, Buckley just didn’t seem that slow.

Kassie and Gary were doing research to determine whether there was some way that Judge Truesdale could call off Quaker’s execution in a way that would not allow the state to appeal to a higher court. I called them into my office, and the four of us debated. It wasn’t much of a debate. I was the only one suggesting that we were too busy to do anything, and that there wasn’t enough time besides, but it’s hard to be passionate in advancing the proposition that we should stand idly by and allow the state to execute someone who the Constitution says can’t be executed. They overruled me again.