David Dow - The Autobiography of an Execution

Last winter a cab driver in Utah told me that her best friend and the friend’s husband had the same arrangement. Angelina Jolie was on his list. The week before, during the Sundance Film Festival, Jolie was standing in front of him at the Starbucks in Park City. He was a ski instructor in the winter and a raft guide in the summer. He probably made less than $25,000 a year. He told her that the latte was on him. I am clearly not the only delusional man in America.

Judge Truesdale called my cell phone. She invited me to coffee on Tuesday afternoon, the day before the execution. I was pretty sure Katya was wrong about her and I was right. Once we were watching a movie where a man called his wife to say he was working late. He went to a hotel with a client. When he got home, his wife, son, and daughter were eating dinner in the kitchen. He kissed his wife and then his children. Katya said, I could forgive you if you were to cheat on me, but if you kiss me when you get home afterward I’ll kill you. It was an empty gesture. There are two kinds of men: those who can cheat, and the ones who can’t. I’m not saying that either is better than the other. I’m just saying that Katya knew which group I was in.

When Ezekiel Green called me from death row on a cell phone he was not supposed to have, I didn’t want to know the terms of his barter. Now I did. Perhaps it is possible to be unfaithful without being disloyal.

IN 1924, CLARENCE DARROW saved Nathan Leopold and Richard Loeb from the gallows. The two young men had kidnapped and murdered a young boy named Bobby Franks, just to see if they could. Leopold and Loeb might not have been geniuses, but they were both supremely bright. Darrow made the astonishing decision to eschew a jury. His clients pleaded guilty, and Darrow threw their fate at the feet of the judge:

Your Honor, it may be hardly fair to the court. I am aware that I have helped to place a serious burden upon your shoulders…. I have always meant to be your friend. But this was not an act of friendship. I know perfectly well that where responsibility is divided by twelve, it is easy to say: “Away with him.” But, Your Honor, if these boys hang, you must do it. There can be no division of responsibility here. You can never explain that the rest overpowered you. It must be by your deliberate, cool, premeditated act, without a chance to shift responsibility.

What Darrow understood is that our system of capital punishment survives because it is built on an evasion. It permits everyone to avoid responsibility. A juror is one of twelve, and therefore the decision is not hers. A judge who imposes a jury’s sentence is implementing someone else’s will, and therefore the decision is not his. A judge on the court of appeals is one of three, or one of nine, and professes to be constrained by the decision of the finder of fact, and therefore it is someone else’s call. Federal judges say it is the state court’s decision. The Supreme Court justices simply say nothing, content to permit the machinery of death to grind on with their tacit acquiescence.

Darrow didn’t let them hide. He demanded that people who uphold the law take responsibility for their actions, especially when those actions are momentous. I think he was right. Jurors and judges who send someone to the gallows should be required to witness their deed and observe the execution. Every court of appeals judge who upholds a death sentence should have to visit death row and deliver the news personally. Supreme Court justices who refuse to grant a death-row inmate a stay of execution should have to deliver the news face-to-face to the inmate as he waits in the holding cell eight steps down the dank hall from the execution chamber, instead of having one of their law clerks call the inmate’s lawyer. If we are going to execute people in our society because we believe that it is an appropriate punishment for people who callously and irresponsibly take another’s life, then the people with the power not to execute ought to take responsibility themselves for imposing the punishment, or at least not negating it. It’s easier to kill somebody if it’s someone else’s decision, and if somebody else does the killing. Our death-penalty regime depends for its functionality on moral cowardice.

In Texas, the most gutless of all is the governor. If he wanted authority to decide for himself whether a convicted murderer should be spared, the legislature would give it to him in a heartbeat, but he doesn’t. He hides behind the jury, and behind the courts, and most of all, behind the Texas Board of Pardons and Paroles. The Board consists of seven feckless people who gave him a lot of money. The governor appoints them to six-year terms, and they do what they think he wants them to. If the Board recommends that an inmate be spared, the governor can go along with that recommendation or not, but if the Board votes against the inmate, then the governor’s hands are tied. Governors, like George W. Bush and Ann Richards, want the Board to turn the inmate down, and, through back channels, they let their cronies know that. Later, they stand outside the governor’s mansion and shrug their shoulders and say that the inmate received a fair trial, that it was reviewed by the courts, that his appeal for clemency was turned down by the Board, and that there is nothing they can do. Then they head off to dinner at the Four Seasons and talk about bearing the weight of permitting someone to die.

Is there any phrase in the English lexicon more immoral than There was nothing I could do ?

But some people are changed by responsibility. Paul Brownwell, a cattle rancher in Giddings, was one of them. He called me at my office at seven o’clock on Monday night. He said, I wanted you to know before we tell the press that the Board just voted against recommending commutation in Mr. Quaker’s case. The vote was four to three. I’m just sick about it. It was the best clemency petition I’ve ever read. I’m sorry to be telling you this.

I thanked him for the call. I walked into the conference room where the others were eating a pizza and told them the news. We have among us fifty years of death-penalty experience, but everyone was stunned. In the extraordinary case—with an inmate who is mentally retarded, for example—we expect the Board to recommend relief. In the typical case, we expect the Board to deny relief, usually by a vote of seven to nothing. We had little experience with a vote of four to three. I had thought the clemency petition was a waste of time. It turns out that the real waste of time was not spending another hour on it to try to pick up one more vote. I’m not a cheerleader, but their faces were breaking my heart. I said, It’s not even close to over. We’ve got lots of arrows left in the quiver.

What I didn’t say was that I had a bad feeling we had already used the one with the sharpest point. I didn’t need to. They didn’t believe a word I was saying.

TUESDAY AFTERNOON Judge Truesdale called and asked whether we could meet for a drink at the Magnolia instead of coffee at Diedrich. She was sitting at a table in the back when I got there. The waiter came over and I asked him for club soda with lime. She said, I’ll have another. Bring him one, too.

When I’m in a bar or restaurant and I run into a judge presiding over one of my cases, I become a stick figure. I want to say what I think, but I feel like I can’t, and it is a short step from there to feeling like I am someone else, someone I recognize but do not really know, the way most people know their neighbors. I used to think it was because of ethical restrictions on what lawyers are supposed to say to judges about cases pending in their courtrooms, but that’s not really it. It is because they are not mortal. They hold the power to spare my client. For a short moment in a tiny space, they are God. I want to know what they are thinking, so that if they are thinking wrong, I can try to nudge them. If Moses can rebuke Yahweh, I can implore a judge. I want them to see the human reasons my client deserves to live, not the legal ones. I want them to be moral agents, not judges. But Moses turned away from the burning bush. I know exactly what I will say, and I also know I won’t.