David Dow - The Autobiography of an Execution

The warden squeezed the bridge of his nose. One of the guards wiped his eyes with his forearm. Henry looked at the warden. He said, That’s it.

The warden seemed lost for a moment. Then he took a copy of the death warrant and read it out loud. He asked Henry if he had a statement. Henry said, Warden, I’m ready.

The newspaper the next day would say that Henry started softly to sing a Psalm. It wasn’t a Psalm. I recognized it. It was a Tracy Chapman song. He was singing about saving a space in your heart. But who was he singing to? Dorris? The children? Was he saving the space, or was someone else supposed to save it for him? These are the questions I wanted to ask. He turned his head and faced the window separating him from me. Could he see through it, or was he seeing his reflection? I think I might have shaken my head. He smiled, like it was a joke. He had to be able to see me. He said, Thank you, man. Thank you. Then he faced the ceiling and sang again.

This could not be happening. We had an appeal pending. My head fell against the window, like a Muslim in prayer. The warden nodded at someone, and instantly a guard was behind me, his hand on my shoulder. I said to no one, We have an appeal still pending. Could anybody hear me?

He seemed to relax. I said, I’m here, Henry. I’m here. I’m standing right here.

He turned his head toward me. He mouthed, Good-bye . He coughed gently and closed his eyes.

No.

I slumped down onto the floor, my back against the wall separating me from him. I heard a chaplain repeating a monotonous prayer. I watched him play with his beads. I felt my phone vibrate in my pocket. I did not look down to see who it was.

At 11:37 p.m. the doctor pronounced him dead.

EARLIER I SAID life has no lessons. That’s not exactly true. There are lessons, but only for the wise. If you don’t learn them, you have only yourself to blame. There might not be anything you can do about it, but it’s still your own fault. Fault and free will are unrelated ideas.

We represented a death-row inmate named Darrin Grand. The judge who presided over his trial had carried on an affair for more than ten years with the district attorney who prosecuted Grand. At the time, each was married to someone else. They kept their relationship secret.

People don’t care about murderers, or about the constitutional rights of men like Darrin Grand, but right and wrong aren’t a matter of popular sentiment. If you were getting a divorce, and you found out the judge was sleeping with your spouse’s lawyer, how confident would you be that the judge was fair? Maybe you can’t imagine getting a divorce. Do you want the pitcher’s father calling balls and strikes when your kid is standing at the plate?

Two weeks before Grand was supposed to be executed, an assistant district attorney gave us an affidavit confirming that his boss had been sleeping with the judge. We filed an appeal citing the alleged affair. The court of appeals ruled against us, saying that all we had was rumor and statements from third parties. They demanded proof of the affair with firsthand evidence. The appellate court’s theory boiled down to this: Since the trial judge and the DA weren’t talking, the state could go ahead and execute Mr. Grand, even if everyone else in the courthouse, from the other judges all the way down to the nighttime cleanup crew, swore the affair had gone on.

Some days murderers steal my spirit. Most of the time, though, it’s judges.

But for every ten or twenty gutless panderers, there’s a soul that houses righteous indignation. One of them lived north of Dallas, and we won the lotto when our case was randomly assigned to his court. He ordered the former judge and prosecutor to sit for depositions. One of law’s mysteries is the power of the oath. Witnesses swear to tell the truth, and they usually do. Even presidents can’t resist. The DA and the trial judge both admitted to the affair.

But none of that happened until many months later, and it never would have happened at all if Grand hadn’t managed to escape being executed on the night the court of appeals turned us down. After the state court denied our request for a stay at eight o’clock in the evening, we decided to file something else. We more or less made it up as we were writing it. It had no chance of succeeding. None. It was such a feeble theory that, as I write these words, I can’t even remember what it was. All I know is that it was like heaving the ball toward the hoop after all the fans have left the arena, the lights have been dimmed, and the officials have taken the basket down.

Pursuit of futility, however, is not necessarily a futile pursuit. By the time the other side filed its response, and by the time the appellate court ruled against us yet again, it was half past eleven. Prison officials said they could not carry out the execution in the remaining half hour. They put Grand back in the van and returned him to death row.

We had run out the clock. We kept Grand alive for a little longer, and in that time we stole, we proved what the judges on the court of appeals probably thought—what they secretly hoped—we never would, which is why Grand is still alive today. There is no such thing as delay for the sake of delay, because delay’s shadow is where relief often lurks.

Why hadn’t I remembered Grand? Why hadn’t I done something to stall? I could have kept banging on the window. I could have struggled with the guard if he tried to pull me away. I could have barged into the press witness area and shouted to them what was going on. I could have tried to barricade myself in the holding cell. Maybe the guards would have cooperated. Nobody knows. I did not even try to stop them from escorting an innocent man to his death. I was a German watching the brownshirts take my neighbor. I could have rushed into the execution chamber. I could have caused a commotion. I could have tried. I did none of that. I stood there. I was idle. I was a man making phone calls, a wordsmith, a debater, an analyst.

I could have, I could have, I could have. The three words that enable all evil.

Quaker needed action. I gave him tears.

ICALLED THE OFFICE. Kassie put me on the speaker and I told them all what had happened. I could hear their silence. My brother Steven keeps telling me I need to hire a grief counselor. He should know. He also works with people who are staving off the flood with teaspoons. One committed suicide last year; she hanged herself in the basement, right next to the washer and dryer. I talked to them until I was sure they were as okay as one can be, and told them I’d see them tomorrow.

Katya was in bed watching TV. I said, I can tell you about it in the morning. Don’t wait up for me.

I want to. Are you okay?

Not yet.

I returned phone calls from reporters at the Houston Chronicle , the Dallas Morning News , the Austin American Statesman , the Chicago Tribune , and the New York Times . I like all the reporters, but that’s not the reason I called them back. I called them so I did not have to be alone with my thoughts.

MAYBE HE DID do it. It’s not impossible.

JENNIFER HECHT WROTE a book called Doubt . There’s a thirteen-question quiz near the beginning (e.g., Do you believe that some thinking being consciously made the universe ?; Do you believe that the world is not completely knowable by science ?). According to Hecht’s scoring scale, I am a hard-core atheist… of a certain variety: a rationalist materialist . I took offense at that. That’s not me at all. I’m a deeply spiritual person.