The Autobiography of an Execution

That’s what I think about when I hear Ornette.

She said, People think it’s a Miles Davis record, but it’s actually Charlie Mingus. Anyway, don’t tell anybody, but I feel that way, too.

Possibly she mistook my expression of surprise for something else. Our apartments were a block away from one another. As we were walking home from the bar, she grasped my hand in both of hers and said, What is going on between the two of us?

Later I would admire her forthrightness. But at the time, I was completely nonplussed. I didn’t know what to say. I was impressed with her, not in love. I considered her just my friend and was pretty sure there was no good way to say that under the circumstances in a nonhurtful way. So I stood there, mute as an idiot. I had no earthly idea what I had done or said that would even make her question conceivable. How could she apparently be thinking something that had not even crossed within a thousand miles of my mind? Was she delusional, or was I? If you ponder that question for a moment or two, you realize that it has no good answer.

Subsequent evidence would indicate that I may have been the one with problems of perception. During my first year as a law professor, I was assigned the job of sitting in on a course taught by a practicing attorney. She was a trial lawyer, and the course was a practical one. We would visit briefly before each class. Afterward, while a group of students clustered around her to ask her more questions, I would wave and drive home. After the last class of the semester, we walked out to the parking lot together, and I told her how much I had enjoyed the class. It was not a line. I had enjoyed it. We got in our cars, but I had left my lights on, and the battery was dead. She offered to drive me home. When we pulled into my driveway, she asked if she could come inside and use the toilet. I was standing at the kitchen counter, sorting through the mail, when she walked out of the bathroom, wearing nothing.

At some point, when you think you see the world one way, but the rest of the world apparently sees it another, then, no matter how big your own ego happens to be, you need to acknowledge the numbers and concede that the world must be right, and that you are therefore wrong. That idea is what leapt into my brain as I sat there in Judge Truesdale’s office. But Henry Quaker crowded her away. He was in a holding cell next to the courtroom, less than a hundred feet from where we were. He popped into a cartoon bubble, just like in Annie Hall, and whispered to me, Kiss her, man. Kiss her.

A prosecutor in a different case walked in with an order she wanted the judge to sign and leaned against the door frame. I told her hello. Judge Truesdale reached out her hand to take the order, but she kept her eyes on me. She said, I just wanted to tell you off the record that I’ve read everything you’ve written, or your associates have written, and I have real reservations about this case, but I am not sure there is anything I can do. From the corner of my eye I saw the prosecutor nod.

I said, Well, Judge, I think there is.

She said, We’re off the record here. I’m Jocelyn.

I said, Jocelyn. We are going to ask you to withdraw the execution warrant.

Her right leg was crossed over her left. She said, Hmmm. She smoothed her skirt and brushed something invisible off. She stood up and said, Can you help me with my robe here?

CONTRARY TO OUR WORST FEARS, Judge Truesdale let us put on every piece of evidence we wanted. Maybe she really was bothered by the case. We called the insurance agent, who recalled that she had aggressively pushed a life insurance policy on Henry when he had been shopping for auto insurance. The custodian of records for Daniel’s pediatrician provided records that indicated that Daniel did in fact get frequent, spontaneous nosebleeds. Six guards said they believed Quaker was innocent and shouldn’t be executed even if he wasn’t. He was a model inmate, doing exactly what authorities asked him to. Detective Wyatt testified that he had interviewed Ruben Cantu because Cantu owned a truck with a license plate that could have meant it was the truck the neighbor saw in front of the Quakers’ house. He said he never took Cantu seriously as a suspect, because, so far as he knew, Cantu did not know the Quaker family, but he also conceded that he had not looked into Cantu’s alibi.

I did decide to ask him about having tested Dorris’s hands for gunshot residue. He said it was routine. I said, Was it routine because you found a gun near her body? He said that there had not been a gun near the body. I said, So you thought she might have shot and killed herself and then disposed of the gun? The district attorney objected to that question and Judge Truesdale ruled in his favor and told Wyatt not to answer, but I was happy about that because I didn’t want to trade this trivial battle for the bigger war. I just hadn’t been able to help myself. I looked over at my team, making sure there wasn’t anything I’d forgotten to cover. I noticed Henry. He was barely suppressing a glare. I had to turn away, like he was a flaming sun.

Henry was sitting between Kassie and me. Jerome and Gary were right behind us. The guards prefer that when death-row inmates are in court, no one is sitting between them. I asked the guard whether he wanted me to change places with Henry. The guard folded his arms and shook his head. He said, Nah. Far as I’m concerned, he can stay right where he’s at.

We had a tussle over Green’s sworn statement. The hearsay rule prevents people from saying what other people supposedly said. The idea behind the hearsay rule is that the best evidence of whether someone said something is to ask her directly, rather than allowing someone else to give a secondhand report. But there are exceptions. Green’s claim that he paid Cantu to kill Tricia Cummings was admissible under a doctrine known as a statement against interest. Because Green was saying something that incriminated himself, the judge could consider it. But his statement also reported what Cantu supposedly told him—that Cantu had mistakenly killed the Quaker family, and that he had left a gun there to make it look like suicide. That was hearsay, and the district attorney strenuously fought to keep it out of the record. In the end, the judge decided that she would think it over, and we did not really care what she decided, because either she believed Green or she didn’t, and I was clinging to the hope that what she believed about what had happened would mean more to her than what she thought the rules of evidence allowed.

She asked us if we wanted to make a closing argument. We did. The prosecutor went first. He pointed at Quaker and said, Your Honor, a jury found this man guilty of murdering his wife and his two children. He turned and stared at Henry, and Henry looked back. He had a serenity to him, like he wasn’t entirely there. I thought how Lauren Bacall reacted in To Have and Have Not, when the Vichy officer took her passport and slapped her in the face. Later, Humphrey Bogart told her that she hardly blinked an eye. I think it was because her hatred was tempered by understanding. At least that was how I interpreted Henry’s stare.

The prosecutor reminded the judge that someone who has been convicted cannot overturn his sentence unless he can prove that every reasonable person would think he is innocent. We were nowhere close to satisfying that standard, the prosecutor said. There were any number of reasons—the insurance money, the blood in the car, the fact that Henry’s marriage was in trouble—to believe that he might have done it. If there was any reason to believe he might have done it, the judge’s hands were tied.

Everything the prosecutor said was correct. The law might not have been on our side, but principle was. When it was my turn, I reminded the judge that the only reason Quaker had ever been convicted was that his lawyer was so bad. I stuck to our story: that the evidence of guilt was massively underwhelming, and that there was good reason to think that Cantu had committed the murders.

Judge Truesdale said, I sure would like to hear from Mr. Cantu. Where is he?

I said, I’d like to know that, too, Judge.

We’d gotten Cantu’s DNA off the orange juice carton, but he was not in any police databases. He could have been dead, back in Mexico, or living next door.

She banged her gavel, and we were done. We stood as she walked out. As we were packing up our files, one of the guards who would escort Henry back to death row came over and said to me, Good luck, sir.

WE’D GOTTEN A SHORT LETTER from Walter Buckley. He was scheduled to be executed in two days. He had sent it two weeks earlier but it took awhile to reach us because he had misspelled literally every word in my address. He was not my client. He was being represented (using that term in its loosest possible sense) by Karl Christianson, a notoriously inept lawyer. Under a Supreme Court case called Atkins v. Virginia, the states are not permitted to execute people who are mentally retarded. It was difficult to figure out exactly what Buckley was talking about, but it seemed he was writing to say that his lawyer had never raised an Atkins claim. If true, this was an unimaginable dereliction. One criterion of mental retardation is an IQ of