said to the others, Does it seem to you all that they are asking us to request en banc reconsideration? We all pored over the opinion again.
Gary said, If the panel does want us to request en banc reconsideration, and we don’t, how will that look when we appeal to the Supremes?
I didn’t think our chances in the Supreme Court would be much affected one way or the other. At the same time, if we were right that the panel was nudging us to request that the full court of appeals address the issue, then maybe they had some inkling that the full court would grant our request. Otherwise, why propose a tactic that would just consume valuable time? I said, En banc reconsideration it is. We briefly discussed how to frame the argument. Gary and Kassie went with Jerome into his office, and an hour later they handed me a motion. I read it quickly, made a minor change or two, and said, File it.
Our motion for en banc reconsideration got to the court at three thirty. The clerk called us to confirm receipt. O’Neill was sitting in a van, on his way from the Polunsky Unit in Livingston, where death-row inmates are housed, to the Walls Unit in Huntsville, where they are killed. His execution was two and a half hours away.
JEROME LEFT for the prison. He would deliver the news to O’Neill that we had lost, and then watch our client get executed. Kassie asked him whether he wanted her to go with him and drive. He thanked her and said no. He called at five, just as he was about to go visit with O’Neill in the holding cell. He wanted to know whether there was any news. I said there wasn’t. He said, That’s good, right? They would have denied us by now if they were going to deny us, don’t you think?
Being a death-penalty lawyer requires constant delusion. You have to convince yourself that even though you hardly ever win, this time is going to be different. I said, Don’t get his hopes up.
Jerome said, I don’t think it makes one bit of difference what I say to this guy.
He had me there. I said, Well, if you see his parents, don’t get their hopes up.
Fifteen years ago, before they changed it to 6:00 p.m. so that the guards could be home in time for dinner, Texas carried out executions at midnight. The death warrant instructed the warden to carry out the execution on a certain date, before sunrise. So the execution window lasted roughly six hours, from midnight until dawn. We represented an inmate named Lupe Hernandez. The day before his execution, the widow of Hernandez’s brother showed us a letter in which the brother claimed credit for the murder that our client was going to be executed for. We filed a last-minute appeal, on the day of the execution. After a flurry of skirmishes in the lower courts, we got to the Supreme Court around nine o’clock at night. At nearly five in the morning, there was still no word from the justices. Dawn would soon break over East Texas, and the death warrant would expire. At a quarter past five, a state court judge stayed the execution, with an opinion saying that the State of Texas should not carry out an execution while the highest court in the land was still considering the appeal.
But inherent in that state court judge’s opinion was a point that gave me a chill as we waited for the court of appeals to issue a ruling in the O’Neill case: Unless a court or the governor granted a stay of execution, the warden could carry out the execution at any time between six and midnight. The fact that we had filed an appeal meant nothing. We needed the court to tell the warden that he could not go forward.
At seven thirty there was still no word. Jerome had called half a dozen times, thinking that his cell phone must not be ringing. Each time I told him that the court had not called. In the office, we grew more hopeful. There would be no reason to take so long, if the court was simply going to issue its form-letter denial of our request.
The phone rang at a quarter past eight. The clerk of the court and a lawyer from the attorney general’s office were on the line. The clerk said, I am calling to let you know that the court has instructed me that it will be taking no further action tonight.
What? There were nearly four hours left in the execution window. We had gotten our appeal to the court five hours before. The judges had had plenty of time. How could they go home? I said, When will they make a decision?
The clerk said, The court has instructed me that it will be taking no further action tonight.
I said, Can we file a motion with the panel asking them to grant a stay until the entire court has an opportunity to rule on our motion?
The clerk said, The court has instructed me that it will be taking no further action tonight.
You have to beat me upside the head only so many times. I said okay and told the clerk good-bye, then told the assistant attorney general that I would call her right back. Gary said, I think we need to file in the Supreme Court.
Kassie disagreed, saying we did not need to do anything. She said, They can’t kill him with our motion still pending.
I was not so sure about that. We called the attorney general’s office. The lawyer handling the case was an experienced death-penalty lawyer named Eddy Martin. She said, I’ve spoken to my boss and the attorney general. We are going to advise our client not to go forward with the execution this evening.
I said, Eddy, can you assure us that the warden will follow your advice?
She said, No, I cannot.
I said, We’ll call you back.
I called Jerome and explained to him what had happened. I said, I need you to talk to the warden, or someone in his office, and find out whether he is going to follow Eddy’s recommendation.
Ten minutes later he called back. He said, The warden’s assistant was very nice. She said that the warden wouldn’t talk to me.
If death-penalty lawyers made a lot of money, this is where they would earn it. It was around nine. There were three hours left during which the warden could lawfully execute O’Neill. The attorney general’s office had told the warden not to go through with it, but we did not know whether the warden would listen. After all, he was holding a court order commanding him to carry out the execution. We had two options. One was to do nothing and hope the warden listened to a lawyer’s advice rather than adhering to a judicial order. I figured there was a fifty- fifty chance he would. The other was to file a motion with the Supreme Court and ask that Court to stay the execution. There were a couple of problems with the latter approach. One was an arcane legal problem having to do with on what basis we would ask the Supreme Court to intervene. Typically, when someone asks the Supreme Court to do something, the party making the request argues that the lower court got the wrong answer to the question. In our case, the lower court had not gotten the wrong answer; it hadn’t given an answer. There was, therefore, nothing to appeal from. Although I felt we could overcome that issue, the other problem was more pragmatic: If the Supreme Court refused to intervene, maybe the warden would interpret that refusal as authorization to proceed. I figured we had slightly under a fifty-fifty chance of getting a stay from the Court.
Call heads or tails, I said to Gary. Let’s just decide by flipping a coin. He and Kassie stared at me. I said, I’m kidding.
We decided to do nothing. I called Jerome to let him know. He said, What? Y’all are just going to sit there? I said that was the plan. He said, You want me to tell his parents? I told him that I would call them. I was not doing it just to be nice. I was doing it so that I had something to do.
I filled a coffee mug with crushed ice and took it and a bottle of Jack Daniel’s and climbed out my window onto the fire escape. I called Katya and told her what was up. When I told her about the judges on the court of appeals calling it a day while our motion was still pending, she said, You need to file a judicial grievance. I told her I didn’t see what good it would do. She said, That’s not the point. You need to hold their feet to the fire. That is inexcusable. They shouldn’t be allowed to get away with not justifying themselves.
I said, K, you’ve got a lot of spunk. But she wasn’t in a smiling mood. I told her I’d call when something, or nothing, happened.
At ten minutes past midnight, Jerome called. They’re taking him back to Polunsky, he said. Jerome told me that the warden had called him just before midnight to ask him whether he wanted to say anything to O’Neill before they drove him back. Jerome went back to see O’Neill in the holding cell. O’Neill had ordered a half a gallon of vanilla ice cream as his final meal. It was served to him when he got to the Walls Unit at four that afternoon. When Jerome went to see him, O’Neill was drinking the vanilla ice cream with a spoon, like it was soup. Jerome repeated to me what O’Neill said: Tell that gentleman that you work with that I told him not to concern himself. His wings and his breath surround me. Please tell him I thank him for his efforts all the same. Will you kindly ask whether I can bring this ice cream back with me?
