David Dow - The Autobiography of an Execution

I have a recurring dream: Someone has killed everyone I love. He’s tied to a chair, his arms cuffed behind him, his legs bound. There’s a blue bandana tied around his throat and he can barely breathe. Both he and I are bloody and bruised. I whip him with a gun. His head sags. Blood is pouring from his mouth and nose. I reach my right arm out and press the barrel to his left temple. He is not defiant. He is not contrite. And always, moments before I wake, I try to imagine how this is going to feel.

In the Hebrew Bible, the government does not carry out executions. The death penalty is inflicted by the goel , the avengers, family members of the victim. In Islamic law, the family can spare from death the criminal who caused them harm. I think that if we are going to have the death penalty, the family members should carry out the executions. Some of them would do it. Maybe I would, too.

But not in the dream. In the dream I drop the gun. It clatters to the floor, and I walk away. It’s not a betrayal not to feel a need to kill.

At five thirty the clerk from the Supreme Court called to tell me that our petition had been turned down. He asked whether we were going to be filing anything else. This is a boilerplate question that he always asks, and the answer is always no. He wants to go home. The law clerks want to go home. The justices want to be able to concentrate on their poker games. A judge on the court of appeals once wrote an article saying it was hard on him to be at dinner parties on the night of an execution because the possibility that a last-minute appeal might be filed made it hard for him to enjoy himself. When I told the clerk that I was not yet sure I could feel him stiffen. He thought I was being flip. He had not heard that the judge had withdrawn the date and that the state was appealing. I said, Sorry for making y’all stay late tonight.

I called Henry again. It was about the time they’d move him from the holding cell to the execution chamber. The guard who answered the phone was unusually polite. He used the word sir three times in our three-second conversation. Hello, sir. Yes sir, he is right here. One moment, sir. I told Henry that Judge Truesdale had withdrawn the date. He did not say anything, but he must have reacted. I heard the guard saying, What is it? Henry told me to hold on, and I heard him tell the guards. I heard one of them shout, All right!

I told him that the DA was appealing and we were a long way from out of the woods. He said, I don’t even count the chickens once they’ve hatched. I wait till they’re supper.

That’s what he said, but in his voice I thought I could hear relief.

AT JUST PAST SIX, we got a copy of the district attorney’s appeal. The argument was brief. They wrote that because no appeal was pending in Judge Truesdale’s court, she did not have any authority to withdraw the execution date, and they requested that the court of appeals order her to reinstate it. We were in the conference room. I zinged my Super Ball off the thick glass door. I said, I think they blew it. Everyone looked at me. I said, They asked the court of appeals to order Judge Truesdale to reset the date. I don’t think they can do that. Setting an execution date is a discretionary act, and courts of appeals cannot order lower-court judges to do something if that something is discretionary. I paused to see whether anyone disagreed. No one did. I said, I guess we should file a response, just in case.

Gary started to crank it out. All he planned to write was that the court of appeals had no authority to order Judge Truesdale to do what the DA had requested. But the court of appeals beat us to it. At seven we got their opinion. Gary said, This is unbelievable. They gave them a friggin’ road map.

It was true. But now here is what you have to understand to appreciate exactly what we were feeling: When the court of appeals rules against us, as they do pretty much all the time, they ordinarily just tell us that we lose, and that’s it. You can write a sophisticated appeal that is three hundred pages long, and the court of appeals will say, We’ve considered your argument, and we reject it. They do not tell you why; they do not reveal their thinking; they do not tell you which features of your argument they don’t accept. They just say: You lose. But not this time. The court of appeals wrote:

Under state law, a court of appeals may not compel a lower court to perform a discretionary act. However, when a lower court’s act is ultra vires, the court of appeals has authority to overrule that act and restore the status quo ante. Because we have not been asked to do so, we express no opinion on the desirability of such correction in the current proceeding.

Ultra vires is legalese for beyond its authority . That phrase made my heart race. The court of appeals was agreeing with the DA.

One Saturday night when I was fourteen and my brother Steven was ten, he was cooking himself a hamburger for dinner. I flipped it from the skillet onto the floor. The dog ate it in a flash. Steven waited up for my parents to get home and told them what I had done. My dad asked him how he thought I should be punished. Steven proposed that I be forced to go a week without dinner. My dad said, That seems a little severe. What if he had to cook you a new hamburger tonight and another one tomorrow? Steven said that sounded like a good idea to him, and so that’s what happened.

It is a grievous insult to my honorable and deeply principled father to have been reminded of that childhood episode by the Texas court, but there it was. The court of appeals told the DA that they could not correct the problem the way the district attorney had asked them to, then added that the district attorney had not asked them to do the one thing they did have the power to do. I could see my brother Steven nodding at my dad’s advice. And despite what some others may tell you, the district attorneys are not imbeciles. At eight o’clock they sent us a copy of their newest filing, which was identical to the previous one, save for the last page, on which they asked the court of appeals to declare that the decision withdrawing the execution date was void and of no effect, and that the warden was therefore still under an order to carry out the execution before midnight. At eight fifteen the court of appeals issued an order saying that Judge Truesdale’s attempt to nullify the execution date was null and void.

EVERY CASE HAS its own unique moment of panic where the last best hope has just evanesced and the only honest corner of your rational brain tries to convince the rest of your emotional and effectively delusional self that you can keep pulling the trigger for as long as you want but the target has left the room, but of course if you were rational you would have stopped doing this work long ago when you realized that nearly all your clients end up dead, so you horde a hundred tricks, a thousand, for convincing yourself that what appears to be reason is actually surrender, and surrender is never reasonable, or at least never honorable, and so you start firing wildly like Jodie Foster in Silence of the Lambs where she can’t see an inch in front of her face but is going to go down shooting, and just because it’s a movie doesn’t mean it couldn’t really happen that way, and so you are convinced that the fact that she killed the bad guy means that you will, too. Justice will prevail.

Jerome said, We need to file an original writ.

Ah Jerome, my very own Jodie Foster.