that approach for death-penalty lawyers in Texas is that the federal court of appeals with jurisdiction over our clients consists mostly of judges who are utterly unprincipled and hostile to the rule of law. They look for ways to uphold death sentences even where constitutional violations are egregious. In recent years, the court upheld a death sentence of a black inmate who was sentenced to death by an all-white jury after prosecutors systematically removed every potential juror of color from serving. It upheld the death sentence of a mentally retarded inmate after his lawyer, who was afflicted by Parkinson’s disease, neglected to point out the inmate’s IQ score. It upheld the death sentence of an inmate who was probably innocent on the ground that his lawyers had waited too long to identify the proof of innocence. It upheld the death sentence of an inmate whose lawyer had literally slept through the trial. These judges get to be judges not because they are wise, but because they are friends with their U.S. senator, or a friend of a friend. They are smart, however. That means they are very good at hiding their lawlessness inside of recondite-sounding legalese. They look for reasons to ensure that a death-row inmate will get executed, and they usually find one. And not very many people care. Do you care that the rights of some murderer were violated? Most people say that the murderer got treated better than his victim, and that pretty much sums up the attitude of the judges on the court of appeals as well.
Justices on the Supreme Court are slightly better. They could hardly be worse. But the big problem with counting on winning a victory in the Supreme Court is that the justices are so inundated with cases that they don’t have time to be sticklers for principle, even when they are so inclined. Nevertheless, even an infinitesimally small chance of victory is infinitely greater than a zero chance. I told Jerome that we should write something cursory for the court of appeals, since we knew we were going to lose, and start working on writing a powerful appeal to the Supreme Court. Gary disagreed. He reminded me that the Supreme Court had recently agreed to hear a case from Alabama called
SUNDAY MORNING Fred Faison called to let me know that he had dropped off his report at my office. I asked him for the Cliffs Notes version. He said, Anyone who trusts these machines will not find any deception in Mr. Green’s answers. I asked him what his report said. He said, It says that, in my opinion, Mr. Green’s claims of knowledge and responsibility for the murders of the Quaker family are truthful.
I said, So you are saying that you believe my client is innocent.
He said, I’m saying that I believe what Green said.
Two days later we had polygraphed Quaker. I had not been there. Faison said he was telling the truth, too.
Mark Roberts lived in my neighborhood. I e-mailed him and asked whether he had time to chat later that day. He called me a few minutes later and asked whether I’d had breakfast. I told him I hadn’t. He said, Let’s ride our bikes to the Breakfast Klub and talk there. Roberts had been a semiprofessional cyclist before he gave it up and went to law school. I told him I wasn’t sure he could pedal slow enough for me to keep up. He said, I just finished a seventy-miler. I was about to jump into the shower. You’ll be able to keep up.
We both ordered waffles and wings. I told him our problems. There was blood from a victim in Quaker’s car. He had life insurance on his family. He was mentally unbalanced from the fire. A gun he owned had disappeared. Cantu was gone, and it probably wouldn’t matter even if he weren’t. Unless he was on death row somewhere, so that he didn’t have anything to lose, I didn’t see him clearing his conscience to save a guy he didn’t know. Kassie had found Tricia Cummings, the woman Green had supposedly wanted Cantu to kill. She had gotten married, changed her name to Tricia Davis, had a daughter, and died of a heroin overdose. She was buried in the Fourth Ward. That pretty much left us nothing but Green’s statement.
Roberts said, How did they convict the guy with just that?
He was right, of course. Daniel had frequent nosebleeds. Quaker had told me that, and the nurse at Daniel’s school verified it. The blood meant nothing. The life insurance also proved very little. The insurance agent gave Gary a statement that she had pressured Henry to buy it when he came to see her to buy auto insurance. It hadn’t even been his idea, and either he forgot he had it or had no interest in it after the murders, because he took no steps to collect the money. I said, His lawyer was Jack Gatling. Roberts nodded and chewed on a wing.
He said, Listen, I’m sympathetic, but I think I’ve done everything I can at this point. I have a call arranged with Green for Tuesday. I’ll tell him that you and I have talked. I already said you can use his statement if he doesn’t make it to Friday, but if we catch lightning in a bottle, I don’t see how I can agree. He’ll be opening himself up to another death sentence. I’ll tell him that, and if he wants to fire me if he gets a commutation so that he can talk to you, then he can.
I asked Roberts whether it was okay with him if I tried to talk to Green one more time on Thursday. He said, You mean while he’s in the holding cell? I nodded. He said, What? You figure he’ll be like Honest Abe thirty minutes before he gets the juice?
I said, You never know.
He said, This is why I don’t want my clients to be innocent. Too much pressure.
I ate the last bite of my waffle and said, Do we have to ride back home or can we call a cab? He laughed, which I took to mean we were riding.
JEROME SPENT THE NIGHT at the office on Sunday. When I got there just after seven on Monday morning, he was asleep on my sofa. I said, Hey, Little Red Riding Hood, you want some coffee? He sat up and apologized. He washed his face and came back into my office with the appeal for the Supreme Court he had spent the night writing. It was seventy pages. I said, This is too long. We’ve got to chop it down.
He said, I know.
I said, Good thing we have eleven hours.
Considering that the court of appeals had had our petition since late Saturday afternoon, and considering that law clerks work long hours on weekends even though their judicial bosses do not, I expected that we were going to hear something from the court first thing in the morning. When neither fax nor e-mail had arrived by ten, I asked Jerome to call the clerk, just to make sure they had not sent something that hadn’t reached us. She said that the court had not yet announced a decision. Gary and Kassie went next door to pick up Vietnamese food. I sat at my computer, trying to work on the Quaker case, but I couldn’t concentrate on it, so I buzzed Jerome on the intercom and told him I’d take over editing the O’Neill appeal. He said he was almost finished, that it was down to fifty pages, exactly what is allowed. So I sat in my chair, bounced the Super Ball against the wall, and downloaded an Art Tatum song from iTunes.
Kassie walked in and said, We’re eating in the conference room. My fortune says that all great battles are lost in the middle. I think it’s Lao Tzu. Do you think middle refers to the court of appeals? She smiled.
I said, I heard it as all great wars. I thought you were going to the Vietnamese place.
She said, We did.
I said, I don’t think you can place much faith in a fortune cookie from a Vietnamese joint.
She said, I think that might be a racist comment.
At two o’clock the clerk called and told us the court had issued its opinion. They had e-mailed it to me. She asked whether I wanted a copy in the mail. I laughed. No thank you, I said. The four of us stood in a semicircle, reading the pages as they came off the printer. We had lost, but we had lost in a very surprising way. There are eighteen judges on the court of appeals, but they sit in panels of three to decide cases. The rule on the court is that once a panel decides an issue a certain way, all the judges on the court, even if they were not on that panel, are required to decide the same issue in the same way, unless the court as a whole reverses the panel decision. The panel that decided our case seemed to have agreed with Gary’s argument that they should hold the case until the Supreme Court ruled in
As I read the panel’s opinion, the judges were almost inviting us to ask the entire court to review the case. I
