o’clock.
At four thirty Gary got everything restored. It was going to be close. We e-mailed the document to Austin. Including exhibits, it was 107 pages long. They printed it and made the required copies. They called the court to let them know they were on the way. The clerk answered. It was not quite ten past five. He said, The court closed at five. The paralegals drove over anyway. The door was locked, and no one came to open it when they banged.
We had a problem. It was almost five thirty, and the papers that we had been working on for the Supreme Court were based on the assumption that we had lost in state court, not on the assumption that we had never managed to get anything filed in that court. We couldn’t file an appeal from the state court’s decision, because there was no state court decision. I won’t bore you with the details of why this is a complicated problem, but it is. So I quickly wrote something up, asking the Supreme Court to issue a stay of execution, promising the justices that we would get something filed in the state court the following day. I knew as we were e-mailing it to the Court at minutes before six that it had all kinds of technical legal problems, but I hoped they would not matter, that what the justices would focus on was the fact that Buckley had an IQ score somewhere in the mid-50s. But hope is an impotent indulgence. One day soon, I swear, I am going to give up on it completely. The justices unanimously turned us down.
By the time I called Buckley to tell him the news, at a few minutes after six, they had already strapped him to the gurney. I did not get to tell him that our pleas had been turned away because the judges do not really care about principles or justice. I did not get to tell him that we had tried, and that I was sorry. I did not have to tell him that if our office had state-of-the-art computers, he would have lived to see another day.
Gary came into my office. His eyes were swollen. He said, This is my fault. I should have replaced that server six months ago.
I said, Pal, there is a long list of people whose fault it is, including nine in Austin and nine more in Washington, and your name is not on it.
I called Katya with the news. I asked her to put Lincoln to bed without me and told him a story over the phone. I gathered up the team and we walked next door to Cafe Adobe. We went through two pitchers of margaritas without exchanging barely a word. At nine I stood up, told them they were the best lawyers I knew, and that I’d see them in the morning.
ON THE SIDE of the freeway, a woman standing next to a pickup truck with a blown-out front tire was frantically waving her arms. I stopped. She had no cell phone and wanted to use mine to call a tow truck. I didn’t think I would feel comfortable driving away before the wrecker got there, so it seemed just as easy to change the tire. I pulled the truck as close to the shoulder as I could, turned on the flashers, and asked her to stand a ways up the road to wave people away from the shoulder. Twenty minutes later she was good to go. She had a folded-over stack of bills in her hand that was two inches thick. She said, Please, take this. Buy yourself dinner. I told her there was not a chance. She said, Please. I am going to feel terrible if you don’t.
I said, Ma’am, I promise you that I will feel worse if I do. She said
I waited for her to drive off, then pulled onto the freeway behind her. At home I checked on Lincoln and told Katya the story. She became angry. She wanted me to file an official grievance with the judicial conduct commission. She wanted us to hold a press conference. I wanted to share her sense of outrage, but I couldn’t. I felt peaceful.
The definition of lucky in life is a wife and son and dog like mine to come home to, and the good fortune to have not the slightest inclination or need to take a couple of hundred bucks a stranger is offering as compensation for doing a tiny act of kindness that any decent human being would do.
KATYA AND I both have five names on our lists. They are the celebrities we have given each other permission to sleep with, should the occasion ever present itself. All married couples have these lists, right?
Last winter a cab driver in Utah told me that her best friend and the friend’s husband had the same arrangement. Angelina Jolie was on his list. The week before, during the Sundance Film Festival, Jolie was standing in front of him at the Starbucks in Park City. He was a ski instructor in the winter and a raft guide in the summer. He probably made less than $25,000 a year. He told her that the latte was on him. I am clearly not the only delusional man in America.
Judge Truesdale called my cell phone. She invited me to coffee on Tuesday afternoon, the day before the execution. I was pretty sure Katya was wrong about her and I was right. Once we were watching a movie where a man called his wife to say he was working late. He went to a hotel with a client. When he got home, his wife, son, and daughter were eating dinner in the kitchen. He kissed his wife and then his children. Katya said, I could forgive you if you were to cheat on me, but if you kiss me when you get home afterward I’ll kill you. It was an empty gesture. There are two kinds of men: those who can cheat, and the ones who can’t. I’m not saying that either is better than the other. I’m just saying that Katya knew which group I was in.
When Ezekiel Green called me from death row on a cell phone he was not supposed to have, I didn’t want to know the terms of his barter. Now I did. Perhaps it is possible to be unfaithful without being disloyal.
IN 1924, CLARENCE DARROW saved Nathan Leopold and Richard Loeb from the gallows. The two young men had kidnapped and murdered a young boy named Bobby Franks, just to see if they could. Leopold and Loeb might not have been geniuses, but they were both supremely bright. Darrow made the astonishing decision to eschew a jury. His clients pleaded guilty, and Darrow threw their fate at the feet of the judge:
Your Honor, it may be hardly fair to the court. I am aware that I have helped to place a serious burden upon your shoulders…. I have always meant to be your friend. But this was not an act of friendship. I know perfectly well that where responsibility is divided by twelve, it is easy to say: “Away with him.” But, Your Honor, if these boys hang, you must do it. There can be no division of responsibility here. You can never explain that the rest overpowered you. It must be by your deliberate, cool, premeditated act, without a chance to shift responsibility.
What Darrow understood is that our system of capital punishment survives because it is built on an evasion. It permits everyone to avoid responsibility. A juror is one of twelve, and therefore the decision is not hers. A judge who imposes a jury’s sentence is implementing someone else’s will, and therefore the decision is not his. A judge on the court of appeals is one of three, or one of nine, and professes to be constrained by the decision of the finder of fact, and therefore it is someone else’s call. Federal judges say it is the state court’s decision. The Supreme Court justices simply say nothing, content to permit the machinery of death to grind on with their tacit acquiescence.
Darrow didn’t let them hide. He demanded that people who uphold the law take responsibility for their actions, especially when those actions are momentous. I think he was right. Jurors and judges who send someone to the gallows should be required to witness their deed and observe the execution. Every court of appeals judge who upholds a death sentence should have to visit death row and deliver the news personally. Supreme Court justices who refuse to grant a death-row inmate a stay of execution should have to deliver the news face-to-face to the inmate as he waits in the holding cell eight steps down the dank hall from the execution chamber, instead of having one of their law clerks call the inmate’s lawyer. If we are going to execute people in our society because we believe that it is an appropriate punishment for people who callously and irresponsibly take another’s life, then the people with the power not to execute ought to take responsibility themselves for imposing the punishment, or at least not negating it. It’s easier to kill somebody if it’s someone else’s decision, and if somebody else does the killing. Our death-penalty regime depends for its functionality on moral cowardice.
In Texas, the most gutless of all is the governor. If he wanted authority to decide for himself whether a convicted murderer should be spared, the legislature would give it to him in a heartbeat, but he doesn’t. He hides behind the jury, and behind the courts, and most of all, behind the Texas Board of Pardons and Paroles. The Board consists of seven feckless people who gave him a lot of money. The governor appoints them to six-year terms, and they do what they think he wants them to. If the Board recommends that an inmate be spared, the governor can go along with that recommendation or not, but if the Board votes against the inmate, then the governor’s hands are tied. Governors, like George W. Bush and Ann Richards, want the Board to turn the inmate down, and, through back
