The Autobiography of an Execution

Texas, in the Arnold Broxton case. The only issue in the trial was whether Broxton is mentally retarded. There was no jury. A judge would decide. With an impartial adjudicator, it would have been a close call. Of course, with an impartial adjudicator, we would have been somewhere besides East Texas.

Broxton’s IQ scores were right on the border of mental retardation, so the critical factor was whether we could produce evidence of what are called adaptive behavior deficits. People with mild mental retardation can live independent and productive lives, but they have limitations that result from their mental health. They cannot do certain things, like attend to their hygiene, hold a job, maintain a home, and the like. Lawyers prove that their mentally retarded clients have these adaptive deficits by calling witnesses who have known the inmate for a long time and can testify as to these limitations.

Broxton has a younger brother. He would be our key witness on adaptive deficits. He had seen his older brother fail and fail again. He had worked with Broxton at a flooring company and he recounted, among other things, that Broxton could simply never learn how to lay tile. In the days leading up to the trial, Broxton and his brother had several telephone conversations. The sheriff’s office recorded them. At the trial, the state planned to use the recordings to prove that Broxton was aware of what was happening in his case and was therefore not mentally retarded.

Now this argument is as moronic as it is a non sequitur. Mentally retarded inmates can often understand what their lawyers tell them, and we had told Broxton what the hearing was about, and how we were going to proceed. But that’s not the point of this story. Broxton and his brother had spent pretty much all their lives either in inner-city housing projects or in prison. Their idiom reflected that history. The language in their conversations was R-rated and coarse. Every other word was nigger-this or nigger-that. Broxton had been convicted of murdering a convenience store clerk; it was not a high-profile or an infamous crime, but we were in a small town, where every murder trial is a big deal, especially when the defendant is black. East Texas timber country is still a Klan-friendly place.

The local TV news stations were filming the proceedings from beginning to end. The lawyer for the state was the elected district attorney, and he was putting on a show. He played a CD-ROM of the conversations between the two Broxton brothers. The conversations had been transcribed. He handed me a copy of the transcript, and read aloud several lines of dialogue. He did so, mimicking the patois of the Broxton brothers. Even by East Texas standards, it was appalling. I stood up and said, Excuse me, Judge. I would like the record to reflect that the district attorney is no longer speaking in his natural voice, but is trying to sound like my client and his brother. The fact that he is failing miserably at sounding like either one of them does not make his effort any less offensive.

The judge had been checking her e-mail or playing Solitaire or doing something on her computer, and she looked up, baffled. She said, Is that an objection?

I said, Not really. It is a simple expression of moral outrage.

She stared at me and said, Treating it as an objection, the objection is overruled.

The district attorney smirked. He immediately resumed his effort to sound like a brother. I started to rise from my seat again. Gary gently put his hand on my arm and, in a whisper, told me to count to ten. I said, I’m already up to thirty-seven and it isn’t helping.

This is the reality: When you know that you are not going to succeed, and that your client is going to die no matter what you do, and that it does not matter a whit whether the facts and the law are on your side, you can either do nothing and accept defeat, or modify your definition of success, but what you also have to realize is that even if you choose the latter route and opt to redefine the meaning of winning, and therefore count it as a small victory (for example) when you don’t sit silently by while a district attorney puts on his black face and carries on for the cameras with an egregious display of overt racism, your client is still going to get escorted into the execution chamber, strapped down to the gurney, and put to death.

There are some philosophers who say that we create the world we live in with our language. I am sorry to say that that is not how it works. Reality is a relentless and crushing force, and it cannot be thwarted or outrun with a lawyer’s effete semantics.

I told Lincoln that I’d try to help the person I was going to see, and I headed for the prison.

AN ALABAMA SONG was playing on the radio. It reminded me of when I had picked up Lincoln from Rachel’s house after a playdate six months before. Alabama was singing about how angels come down from heaven to visit us when we’re sad. Lincoln asked me to play it again. I told him I couldn’t because it had been on the radio. He downloaded it from iTunes as soon as we got home and sat in front of his computer listening to it, over and over. When Katya called him to dinner he said, This song brings tears to my eyes.

I’d never seen him so morose. Katya gently pressed him to tell us why he was sad. He said, It’s because I don’t have any courage.

Yes you do, amigo. You have plenty of courage.

It’s not true.

His lower lip trembled like he was about to start crying. But he didn’t. Katya said, Lincoln, why do you think you don’t have any courage?

He said, Rachel was sad. I don’t know why. I could tell she was sad, and I didn’t have the courage to say anything to her.

Katya said, Sometimes it’s hard to talk to someone who’s sad, isn’t it?

Yeah.

Well, Lincoln, no matter what you say, if you are trying to make that person feel better, she will appreciate it. Do you understand what I mean?

Yeah. Thanks, Mama.

THE HOLDING CELL has a distinctly medieval feel. It is damp and dark and gray. There is no TV or radio, but there is a rotary-dial telephone on the concrete floor that might have been new in the 1970s. To get to the place where condemned prisoners spend the final three hours of their lives, you pass through two electronically controlled doors. Then you exit the prison through a heavy steel door that opens with a key that is eight inches long. The warden’s assistant, the key dangling from her neck as if she were a character in a Dickens novel, escorted me across a small courtyard, really just a rectangle of grass surrounded by concrete walls, and knocked on another door like the one through which we just passed. A guard inside peered through a slot covered with Plexiglas and visually identified my escort and me. Then he opened the door with another giant key. The warden’s assistant left, and I was standing in an L-shaped, windowless area.

The base of the L is the actual holding cell; the rest is a short hall where the three guards stood and watched over Green. To my right, as I faced Green, was another steel door that looks like it belongs on a submarine. It is the entrance to the room where inmates die. The holding cell itself has two walls of cinder block, and two walls of steel bars covered with a mesh that looks like chicken wire. A metal cot is bolted to one wall, and there is a stainless- steel toilet. It is five steps long and two and a half steps wide.

Green was sitting on the cot, inhaling through his nose and exhaling loudly through his mouth. Beads of sweat covered his forehead and his upper lip. For a brief moment I thought he had not heard me come in. The three guards lingered off to my left standing next to a small table, talking in low voices that were not quite a whisper. On the table was a plate piled with french fries and a second plate with a slice of pie covered with whipped cream from a can. There was a squeeze bottle of Hunt’s ketchup and a plastic cup with what looked like lemonade. Green looked at me and said, Hey. Just then the phone rang. A guard picked it up, spoke briefly, and handed it to Green. Green said, Uh-huh, uh-huh, okay, and handed the receiver back to the guard. He said to me, That was Mr. Roberts. I got turned down.

When my clients ask me to, I watch them die. When they don’t, I sit in my office until the courts and the governor’s office have all turned down our final requests for relief, then I close my door and call my client, just like Mark Roberts had just done. I make notes to remind myself not to say certain things, like Talk to you later, or Take care, or See you around, or any of the other meaningless expressions that pepper our everyday discourse and that become suddenly full of meaning when they aren’t true and can’t possibly be. I found myself standing next to Green with no Post-its to remind me what not to say and no script of what I wanted to cover. I said, I’m sorry. Green leaned forward and held his head in his hands. I wanted to be outside. I said, I just wanted to come see you to say thanks for trying to help me.