70 or below. According to our database, Buckley had an IQ of 54. Based on his letter, I would have thought it was even lower.
As usual, Jerome felt like we needed to do something. I felt like we couldn’t. Quaker’s execution was a week away. And even though we had already written everything that I expected we would need to write, you never know. Things always come up. We didn’t know how Judge Truesdale was going to rule, and if she ruled tomorrow, I’d want to turn our attention immediately to appealing if we lost, or to holding on to our victory, if we won. I also wanted to meet with the members of the Board of Pardons and Paroles, who had the power to recommend that Quaker be released from prison, or at least moved off of death row, and to talk to the governor and the warden. We couldn’t be jumping into a case about which we knew almost nothing less than forty-eight hours before an execution. I said so.
Presaged by the envelope, virtually every word in Buckley’s letter to us was also misspelled. He used quotation marks apparently at random and no punctuation except commas, again seemingly randomly placed. Maybe he was retarded. Maybe, too, Christianson had raised an Atkins claim, and Buckley didn’t realize it. Who knew?
Jerome said, Is it okay for me at least to call Christianson and see if he raised the claim and get whatever records he has?
You don’t have to be hard-hearted to do this work, but you have to develop some defenses. We can’t save everyone. We can’t even try to save everyone.
I said, Sure. Go ahead.
MY BROTHER STEVEN was in town for the day on business, and he had brought with him his daughter Hannah, who is Lincoln’s age, so the two cousins could play. I got home an hour before they would head to the airport. The kids wanted to have a relay race against the dads. The rules were numerous, if not complicated. In good nature, I repeatedly violated one rule. I was just clowning around, but seven-year-olds don’t always laugh at the same things I do. Lincoln began to get angry and raise his voice. He told me not to cheat. I told him not to scream at me and promptly cheated again. He raised his voice again. I told him that if he did it one more time the game was over, and I cheated again. His entire body tensed up and he shouted at me, Stop cheating, Dada.
I said, That’s it. Game’s over, amigo. Tell Hannah and Uncle Steven good night and go get ready for bed.
Dada, you’re being too hard on me.
I pointed toward his room. He stormed up the stairs. I walked into the kitchen and poured myself a drink. Steven followed me in while Hannah stood by the front door. I asked whether Hannah would be disappointed if they left without finishing the game. He said, She will be, but don’t worry about that.
Steven and his wife have three children. Hannah is the youngest. I asked whether he thought I had been too tough. Steven said, He seemed to me like he was trying to control himself. You got him pretty mad.
I said, He needs to learn to do what I say, no matter how mad he is.
Steven said, I agree.
I said, I’ll go upstairs and get him. We’ll be right down.
After we finished the game, and lost, of course, with me playing strictly by the rules, and after Lincoln had brushed his teeth and we had read a book and told a story and sung a song, I said, Amigo, I’m sorry I cheated and made you mad, but when Mama or I or Nana or one of your teachers tells you what to do, you have to do it, even if you don’t want to, and even if it makes you really mad. Can you try to do that?
He said, I’ll try, Dada. But it’s hard sometimes. I told him I knew, but I wanted him to try hard. He said, Okay, I will. Will you sleep with me for five minutes?
I’m no expert on the Holocaust, but I do know that one group of scholars blames the tragedy on an essential feature of the German personality. Katya and I have discussed this, of course. When we were in Germany visiting her relatives, she pointed out to me all the ways that Germans defer to authorities that Americans do not even notice. Once, riding the train from Manhattan to New Haven, she commented on how the riders were oblivious to the conductors as they walked through the cars asking for tickets. On German trains, the riders treat conductors like they are lords. It’s the uniform.
Which is worse, too much deference, or not enough? How do you insist to a child that he do what others say, without raising him to be an adult who says he had to do what he did because someone told him to?
TEN HOURS BEFORE Buckley’s execution, at eight o’clock on Thursday morning, Jerome walked into my office with a sheaf of papers and reported that Buckley had dropped out of school in the seventh grade, that he had taken three IQ tests and scored between 53 and 59 on all of them, that he had never been able to live by himself, that three doctors, including one employed by the state, had deemed him mentally retarded, and that, in spite of all that, his lawyer, Attorney Christianson, had decided not to raise a claim that Buckley’s retardation made him immune from execution. I asked Jerome why not. He said, Christianson told me that when he went to visit Buckley, Buckley just didn’t seem that slow.
Kassie and Gary were doing research to determine whether there was some way that Judge Truesdale could call off Quaker’s execution in a way that would not allow the state to appeal to a higher court. I called them into my office, and the four of us debated. It wasn’t much of a debate. I was the only one suggesting that we were too busy to do anything, and that there wasn’t enough time besides, but it’s hard to be passionate in advancing the proposition that we should stand idly by and allow the state to execute someone who the Constitution says can’t be executed. They overruled me again.
The harder question was what to do. I wrote three lines on the whiteboard in my office: the Supreme Court, the federal court of appeals, state court. The problem with the first option was that the last time the Supreme Court ruled in favor of someone who had used the legal device we would be forced to use was in the 1930s. We’d spend a lot of time writing with virtually no prospect of victory. I scratched through it. The problem with the court of appeals was even larger. Many of the judges on that court are an embarrassment, and I was still thinking about the way they had gone home the night of O’Neill’s scheduled execution. In addition, federal law mandates that, with few exceptions, inmates present their legal claims to state court before proceeding to federal court. I knew we couldn’t satisfy any of the exceptions in Buckley’s case, and I couldn’t even think of a decent argument for saying that we could. State court is what we were left with.
But even getting in to state court would be a challenge. We had to present significant evidence that Buckley was in fact retarded, and we had to explain why it took us so long to locate the evidence. Proving he was retarded was not going to be the problem. Explaining why we were coming forward with the proof only hours before the execution was. The truthful answer is that the court-appointed lawyer who had represented Buckley for the past two years had not done his job, but that is not a winning answer. Under federal law, Buckley did not have a constitutional right to have any lawyer at all. Therefore, even if Buckley’s lawyer was comatose, he still got more than he was entitled to. I told Gary, Kassie, and Jerome to divide up writing the part of the petition that would lay out the evidence of Buckley’s retardation, and I would try to come up with some explanation for why we should be allowed to raise the claim at this, the eleventh hour.
The federal courts accept emergency pleadings by e-mail. The state court does not. We have an office in Austin, where the court is located. We let them know that we would be sending them the Buckley petition later that afternoon. They would make a dozen copies and run them across town to the court. At two that afternoon I finished what I was working on and asked Jerome to send me what they had. I made some revisions, combined our two parts into a single document, and sent it back to Jerome, so he and the others could put it in the proper format for filing. Actually, what I should say is that I tried to send it. It wouldn’t go through. Our whole computer network had crashed.
Initially I was calm. I called Austin and told them to call the court and let them know we might be a few minutes late. It was nearly four. Austin called back. The clerk of the court had said that they close at five on the dot. I didn’t have time for this. Gary was trying to get our computer system running. I screamed at Kassie to deal with the clerk. She called the court of appeals again and insisted that the clerk tell his superiors that we were planning to file something for Walter Buckley, who was scheduled to be executed in two hours, that we had finished writing it, and that we were experiencing catastrophic computer failure, which was delaying our delivery of the petition. He called her back and said that the presiding judge of the court said that the court closes at five
