David Dow - The Autobiography of an Execution

The harder question was what to do. I wrote three lines on the whiteboard in my office: the Supreme Court, the federal court of appeals, state court. The problem with the first option was that the last time the Supreme Court ruled in favor of someone who had used the legal device we would be forced to use was in the 1930s. We’d spend a lot of time writing with virtually no prospect of victory. I scratched through it. The problem with the court of appeals was even larger. Many of the judges on that court are an embarrassment, and I was still thinking about the way they had gone home the night of O’Neill’s scheduled execution. In addition, federal law mandates that, with few exceptions, inmates present their legal claims to state court before proceeding to federal court. I knew we couldn’t satisfy any of the exceptions in Buckley’s case, and I couldn’t even think of a decent argument for saying that we could. State court is what we were left with.

But even getting in to state court would be a challenge. We had to present significant evidence that Buckley was in fact retarded, and we had to explain why it took us so long to locate the evidence. Proving he was retarded was not going to be the problem. Explaining why we were coming forward with the proof only hours before the execution was. The truthful answer is that the court-appointed lawyer who had represented Buckley for the past two years had not done his job, but that is not a winning answer. Under federal law, Buckley did not have a constitutional right to have any lawyer at all. Therefore, even if Buckley’s lawyer was comatose, he still got more than he was entitled to. I told Gary, Kassie, and Jerome to divide up writing the part of the petition that would lay out the evidence of Buckley’s retardation, and I would try to come up with some explanation for why we should be allowed to raise the claim at this, the eleventh hour.

The federal courts accept emergency pleadings by e-mail. The state court does not. We have an office in Austin, where the court is located. We let them know that we would be sending them the Buckley petition later that afternoon. They would make a dozen copies and run them across town to the court. At two that afternoon I finished what I was working on and asked Jerome to send me what they had. I made some revisions, combined our two parts into a single document, and sent it back to Jerome, so he and the others could put it in the proper format for filing. Actually, what I should say is that I tried to send it. It wouldn’t go through. Our whole computer network had crashed.

Initially I was calm. I called Austin and told them to call the court and let them know we might be a few minutes late. It was nearly four. Austin called back. The clerk of the court had said that they close at five on the dot. I didn’t have time for this. Gary was trying to get our computer system running. I screamed at Kassie to deal with the clerk. She called the court of appeals again and insisted that the clerk tell his superiors that we were planning to file something for Walter Buckley, who was scheduled to be executed in two hours, that we had finished writing it, and that we were experiencing catastrophic computer failure, which was delaying our delivery of the petition. He called her back and said that the presiding judge of the court said that the court closes at five o’clock.

At four thirty Gary got everything restored. It was going to be close. We e-mailed the document to Austin. Including exhibits, it was 107 pages long. They printed it and made the required copies. They called the court to let them know they were on the way. The clerk answered. It was not quite ten past five. He said, The court closed at five. The paralegals drove over anyway. The door was locked, and no one came to open it when they banged.

We had a problem. It was almost five thirty, and the papers that we had been working on for the Supreme Court were based on the assumption that we had lost in state court, not on the assumption that we had never managed to get anything filed in that court. We couldn’t file an appeal from the state court’s decision, because there was no state court decision. I won’t bore you with the details of why this is a complicated problem, but it is. So I quickly wrote something up, asking the Supreme Court to issue a stay of execution, promising the justices that we would get something filed in the state court the following day. I knew as we were e-mailing it to the Court at minutes before six that it had all kinds of technical legal problems, but I hoped they would not matter, that what the justices would focus on was the fact that Buckley had an IQ score somewhere in the mid-50s. But hope is an impotent indulgence. One day soon, I swear, I am going to give up on it completely. The justices unanimously turned us down.

By the time I called Buckley to tell him the news, at a few minutes after six, they had already strapped him to the gurney. I did not get to tell him that our pleas had been turned away because the judges do not really care about principles or justice. I did not get to tell him that we had tried, and that I was sorry. I did not have to tell him that if our office had state-of-the-art computers, he would have lived to see another day.

Gary came into my office. His eyes were swollen. He said, This is my fault. I should have replaced that server six months ago.

I said, Pal, there is a long list of people whose fault it is, including nine in Austin and nine more in Washington, and your name is not on it.

I called Katya with the news. I asked her to put Lincoln to bed without me and told him a story over the phone. I gathered up the team and we walked next door to Cafe Adobe. We went through two pitchers of margaritas without exchanging barely a word. At nine I stood up, told them they were the best lawyers I knew, and that I’d see them in the morning.

ON THE SIDE of the freeway, a woman standing next to a pickup truck with a blown-out front tire was frantically waving her arms. I stopped. She had no cell phone and wanted to use mine to call a tow truck. I didn’t think I would feel comfortable driving away before the wrecker got there, so it seemed just as easy to change the tire. I pulled the truck as close to the shoulder as I could, turned on the flashers, and asked her to stand a ways up the road to wave people away from the shoulder. Twenty minutes later she was good to go. She had a folded-over stack of bills in her hand that was two inches thick. She said, Please, take this. Buy yourself dinner. I told her there was not a chance. She said, Please. I am going to feel terrible if you don’t.

I said, Ma’am, I promise you that I will feel worse if I do. She said thank you a half dozen times. Disproportionate gratitude, I believe, is always sincere.

I waited for her to drive off, then pulled onto the freeway behind her. At home I checked on Lincoln and told Katya the story. She became angry. She wanted me to file an official grievance with the judicial conduct commission. She wanted us to hold a press conference. I wanted to share her sense of outrage, but I couldn’t. I felt peaceful.

The definition of lucky in life is a wife and son and dog like mine to come home to, and the good fortune to have not the slightest inclination or need to take a couple of hundred bucks a stranger is offering as compensation for doing a tiny act of kindness that any decent human being would do.

KATYA AND I both have five names on our lists. They are the celebrities we have given each other permission to sleep with, should the occasion ever present itself. All married couples have these lists, right?