David Dow - The Autobiography of an Execution

The foreman at the job site where Henry had been working testified at the trial that Henry had been sullen. The man who lived next door to Sandra Blue, two doors down from the Quakers, told the jury that he saw a truck like Henry’s in the driveway at around 8:00 p.m. He had given police the part of the license-plate number that he remembered. A DNA expert explained that the blood in Henry’s truck belonged to his son. A police officer said that the three victims had been shot with a .22-caliber pistol, and that Henry owned such a gun. Officers looked in the house and in Henry’s truck for the gun. It was never found. Someone from the benefits office of Henry’s company showed the jury copies of the forms where Henry had listed himself as the beneficiary on life insurance policies taken out for his wife and kids; he stood to receive half a million dollars for their deaths. Gatling, Henry’s lawyer, did not call any witnesses of his own. He told the jury that the case against Henry was entirely circumstantial. It was, of course, but Gatling had not challenged or questioned any of the circumstances. Saying he phoned it in would flatter him. Despite all that, it took the jury more than six hours to convict.

At the punishment phase of the trial, where the prosecutor asks the jury to sentence the defendant to death while the defense pleads for life, Gatling called no witnesses. He had not interviewed anyone from Henry’s past who could have told the jury about him. He later said that he had been expecting an acquittal, so he wasn’t prepared for sentencing. Henry told Gatling that he wanted to testify himself, but Gatling told him it would be a bad idea, and Henry went along. Gatling did not make a closing argument. He later said that he decided not to beg for Henry’s life because by saying nothing, he would not give the prosecutor an opportunity to make a rebuttal. The judge said it was the only capital-murder trial she had ever heard of where the defense lawyer did not implore the jury to spare his client from execution. It took the jury three hours to sentence Henry to death.

IREAD THE TRANSCRIPT of the trial after a federal judge appointed me to represent Henry in his federal appeals. As Yogi Berra said, it was déjà vu all over again. Gatling was dead, having died from cirrhosis of the liver, but his tactics in the trial had been exactly the same as his approach in the trial of Derrick Raymond, my first client. He did not interview any witnesses. He did not put on any evidence of his own. He had no idea whom the state was going to call as witnesses. Henry told me that Gatling smelled like a bottle at eight in the morning. He told me that Gatling fell asleep during the trial, and the judge’s law clerk confirmed it was true.

Quaker’s case was like my first client’s in another way as well. The lawyer who had represented Quaker in his first appeal in state court had neglected to complain about the inadequacies of the trial lawyer. Quaker’s lawyer did not miss a filing deadline, but he might as well have. He did not raise a single decent claim, even though there were plenty to choose from. That was a problem; as I noted before, the federal courts will not consider any issue that the state court did not examine. The state court had not examined whether Quaker’s trial lawyer was incompetent because the lawyer who represented him during that appeal failed to raise it. In other words, Gatling was not the last bad lawyer in the case. Quaker’s appellate lawyer was incompetent, too. I would try again to go back to state court to complain about Gatling’s incompetence, but the state courts have a rule of their own: Unless you raise the issue the first time, you cannot raise it later. So I was going to be hamstrung. The federal court would refuse to look into the issue because the state court had not examined it, and when I asked the state court to examine the issue so that I could go to federal court, the state court would refuse because Quaker’s original lawyers forgot to ask them to. I told Quaker that I wasn’t optimistic.

He said, It’s like a Catch-22, right? I nodded. He said, I love that book.

Normally, the first thing a death-penalty appellate lawyer does is conduct a complete investigation of the case: locate witnesses the previous lawyers had not talked to, interview jurors, reconstruct the entire case. But there was no point to doing that investigation without first figuring out a way to make it matter. Why spend a thousand hours pursuing futility? Death-penalty lawyers have many clients, and we have the same twenty-four hours in our day as everyone else. An hour spent on one case is an hour not spent on another. Jerome thought there was enough doubt about Henry’s guilt that we should at least do enough to raise questions about his innocence. If we did that, perhaps a court would cut us some slack. I overruled him. It did not make sense to look for a needle in a haystack without even knowing whether a needle was in there. Instead, we would try to get a court to agree to let us start over. Then, we still might not find anything, but at least we would know that if we did find something, a court would listen.

So we filed papers in federal court saying that Henry had been represented at his trial by an incompetent trial lawyer, and that the only reason that issue had not been presented to the state appellate court was that his appellate lawyer was terrible, too. We said that basic fairness dictated that he should be entitled either to have the federal court address his issues, or to a second trip through the state courts so that the state court could address his issues. The federal judges said, in effect, Sorry, our hands are tied. We tried the same argument again, this time in state court. The state judges said, Sorry, the legislature has decided that you get one and only one crack, and you have had yours.

Nothing worked. Henry would not get a bona fide appeal, where some judge reviewed the legality of his trial. Jerome said, I still think we should investigate the innocence angle. If he didn’t do it, someone will care about that.

I said, His kid’s blood was in the car. He had a life insurance policy on his family. His gun, which is the same caliber as the murder weapon, is missing. There are no other suspects. How do you plan to prove that he’s innocent?

Gary and Kassie looked at Jerome. He said, All I’m saying is that it’s all we’ve got.

He did have a point.

A week after the federal appeals court had ruled against us, I saw one of the judges outside a restaurant, waiting for the valet to bring his car around. He had written the opinion in the case ruling against Quaker. He’s a handwringer, a supposedly devout Catholic who goes to extraordinary lengths to uphold death sentences. I used to divide my life into boxes, too. I had different sets of friends who did not know each other, and all of them knew a different side of me. I’m sympathetic to people whose lives are segmented by Chinese walls. I understand this judge. He reminded me of who I used to be unhappy being. I stood behind him, hoping he might not notice me, but as his car arrived, he did. A tiny man, he hugged me, and his arms didn’t get past my shoulders. He said, I saw Sister Helen Prejean give a speech last week. I have never been so moved in my life. What an amazing woman. He got in his car, waved, and drove away.

Sister Helen gave a speech at the law school where I teach a few years before. People were sitting in the aisles. She talked for more than an hour without a single note. She combines humility and moral authority in a way I’d never seen. Like the Houston Oilers head coach Bum Phillips used to say about Earl Campbell, she might not be in a class of her own, but it doesn’t take long to call the roll. Afterward, several of us went out for a few drinks. It was the first time I went drinking with a nun. She said, You know, support for the death penalty is a mile wide, but just an inch deep. I believe that.