The Autobiography of an Execution

cared about doing the right thing in the Quaker case. Lots of things are legal and also wrong.

As I was finishing this book, Katya, Lincoln, the dog, and I were in Park City, Utah. There were no executions scheduled in Texas for another month. We were hiking along Yellow Pine creek, up in the Uinta mountains, a few miles north of Kamas. We wanted to hike through the forest up to the lake, but three miles in, Lincoln said he was tired and asked if we could turn around. We said okay, and Lincoln took off sprinting, back toward the trailhead, the dog on his heels. We stopped to watch them.

I began talking to Katya about the book. I told her I felt like it was missing something, but I wasn’t sure what. I said, The book is as factually truthful as I am allowed to be, and as emotionally honest as I am capable of being.

Katya said, Without years of therapy, anyway.

I smiled. We walked on along the creek, craning to keep Lincoln in sight.

The cases I have written about are not unusual. My other cases, every death-penalty lawyer’s cases, are just like them. What’s missing is the proof that what you have just finished reading is mundane. The day after Henry Quaker got put to death, my colleagues and I went back to the office and did it all over again, and all the same things happened.

I realized what’s missing: all the other cases.

Lincoln waited for us to catch up at the edge of a pasture. A couple dozen cows were grazing and lowing loudly. The moms hustled to get between their young calves and us. Katya’s afraid of cows. She walked closer to me. Lincoln said, Mama, maybe you should get a baby cow and that way when it grows up you won’t be scared.

Lincoln and the dog ran ahead again. When we caught up to them, Lincoln was sitting on the ground, leaning against an aspen, and the dog was drinking from the creek. Dark clouds were forming in the west. The setting sun sank behind them and streaked the sky with wisps of purple and orange. The wind blew down from the north, and the air held a hint of chill. Lincoln asked whether we could make a fire when we got home.

In a couple of days, or maybe in a week, I’d have to start working on the next execution. But at that moment, as we walked slowly back toward where we had started, the three of us with the dog, all we talked about was what we would fix for dinner that night, and when we would come back to this spot, and about where we would go tomorrow.

ACKNOWLEDGMENTS

I hear there are solo practitioners. But for me, the practice of law has always been a collaborative enterprise. Andrea Keilen is the supremely talented executive director of the Texas Defender Service. I thank her and the actual TDS lawyers with whom I work every day, including on all the cases described in this book: Kate Black, Frances Bourliot, Matt Byrne, Kathryn Kase, Alma Lagarda, John Niland, Katherine Scardino, Jared Tyler, and Greg Wiercioch. (Gloria Flores, Nick Mensch, Melissa Waters, Rindy Fox, Ariell Hardy, Neil Hartley, Kelly Josh, Susanna Trevino, and Jessica Lindley, while nonlawyers, help keep the place running.) Steve Hall and Laura Burstein are also routinely helpful, and George Kendall’s advice is routinely indispensable. The TDS interns are passionate and tireless.

Then there are the past (or almost) TDS lawyers who also worked on the cases described here, including: Melissa Azadeh, Sandra Babcock, Bryce Benjet, Dick Burr, Nicole Casarez, Mike Charlton, Phyllis Crocker, Karen Dennison, Mia de Saint Victor, Mike Gross, Andrew Hammel, Keith Hampton, Eden Harrington, Scott Howe, Cassandra Jeu, Lynn Lamberty, Maurie Levin, Jim Marcus, Joe Margulies, Robert McGlasson, Morris Moon, Brent Newton, Rob Owen, Jeff Pokorak, Danalynn Recer, Meredith Rountree, Raoul Schoneman, Naomi Terr, Jean Terranova, Mandy Welch, and Phil Wischkaemper. I’ve also been privileged to work with Tony Amsterdam, John Blume, Steve Bright, John Holdridge, Lee Kovarski, Greg Kuykendall, Paul Mansur, Nina Morrison, Barry Scheck, Jordan Steiker, Clive Stafford-Smith, Brian Stull, and Christina Swarns. I’m sure I’ve forgotten several people. I hope they’ll forgive me.

I am grateful to Eric Holz, the surgeon who saved my eye. I owe an enormous debt as well to my friends Bowes Hamill and Charles Katz, gifted physicians who never asked me to stop calling or e-mailing, even though I called or e-mailed so often that I almost caused myself embarrassment.

Dean Ray Nimmer, Associate Dean Richard Alderman, and former dean Nancy Rapoport have supported my work at every step of the way, no matter how strong the headwinds—and they can indeed be strong. My students, both at the University of Houston Law Center and Rice University, have been indispensable and inspirational.

For reading the manuscript or discussing sensitive issues about it with me, I am grateful to many people, including: my brother Mark Dow, the best reader and writer I know; Marcilynn Burke, Seth Chandler, Meredith Duncan, Michael Olivas, and Ron Turner, extraordinary colleagues and even better friends; my friend David Jones, whose convoluted analyses are usually worth untangling; Simon Lipskar, my dedicated agent, whose advice and judgment are invariably spot-on; also at Writers House, Maja Nikolic, Angharad Kowal, and Jennifer Kelaher, who tirelessly promoted this book, and Josh Getzler, who exhibited immense patience in dealing with me; Jonathan Karp, the remarkable editor and publisher who intuitively understood exactly what I wanted to do with this book and who turned a manuscript I liked into a book I like much more, and his terrific assistant, Colin Shepherd, who was calming and resourceful; and finally, my dear friend Jon Liebman, whose faithfulness, wisdom, and friendship I’ve been benefiting from for longer than I care to say.

Katya and Lincoln held veto power over the book. That I’ve written it reflects that they said I could. They’ve allowed me to steal, shape, and share our stories. They’ve also allowed me to steal my way into their lives. I’m a lucky guy.

APPENDIX Ethics Opinion for The Autobiography of an Execution Meredith J. Duncan

Publisher’s Note: In light of recent controversies regarding the authenticity of memoirs, we asked a professor of law specializing in legal ethics to explain the rules that constrain a lawyer’s freedom to disclose privileged and confidential information. Her essay follows. While recognizing that some readers prefer documented sources in a work of nonfiction, David R. Dow made the decision to disguise identities of some characters to comply with ethical rules mandated by his profession.

Lawyers are ethically obligated to keep their clients’ secrets, often forever. This obligation, which places serious limitations on an attorney’s ability to write about his experiences, stems from two different bodies of law— evidence law, which defines the attorney-client privilege, and the legal ethics rules, which provide the contours of a lawyer’s duty of confidentiality.[1]

The evidentiary attorney-client privilege protects communication between an attorney and the client from being revealed in court or other official proceeding.[2] When a client communicates with a lawyer seeking legal advice, that communication is protected by the evidentiary privilege. Consequently, the lawyer cannot be compelled to reveal that communication unless the client consents (or another limited exception applies).[3]

A lawyer’s ethical duty of confidentiality is much broader than the evidentiary privilege.[4] This legal norm prohibits lawyers from discussing their clients’ affairs. This duty of confidentiality protects all information relating to the representation of the client, regardless of its source.[5] It prohibits an attorney from revealing any information about a client, in or outside of a courtroom, whether known to others or not, and regardless of whether the lawyer learned the information from the client or someone else. This ethical obligation means that a lawyer may not reveal information relating to a client’s matter to others unless the client agrees to its disclosure (or one of a few limited exceptions applies).[6] It is primarily his duty of confidentiality