We call him Little Z. Today he received in the mail the news he had been fearing, word from the trial court that he has been assigned an execution date in December. The up side is that he has five months to live; many people receive dates that are only sixty, or even thirty, days away. Not much time to attend to one’s affairs, come to terms with the fact that, like a termite in the foundation of a house, he will be exterminated by State “professionals.” The politicians, media, and Victim’s Rights Groups can call them what they want, but when the hyperbole and false piety has been stripped away, they are nothing but murderers. Little Z. has been held captive for thirteen years in preparation for that fateful encounter with death, subject to all manner of abuse and disrespect in the meantime, yet the perpetrators of the act, from the faceless individuals who under cover of law sign the death warrants to the guards, wardens, and executioners who carry out the plot, have comported themselves with the gravitas of respectable men and women. What garbage. Never has a murder been so premeditated, calculated, and anticipated as executions, and no one more inhumane than those who carry them out.
One troublesome thing about executions is that they are orchestrated by well-educated people. You will find no retarded persons involved in the death penalty process, no insane people, save those made grandiose by the ability to commit legal homicide, and no “factually innocent” people. For if one is truly innocent, has a soul bolstered by a temperate mind and a forgiving heart, he or she will never lapse into the business of killing other human beings. But the barbarity of the Texas justice system is legendary, and, due to the flames of enmity that are fanned by those who use subjugation as a ladder to greater things, isn’t likely to change in the foreseeable future. So Little Z. gets a letter from the clerk of the court telling him that on such-and-such a date in December he will be strapped down, afforded an opportunity to make a final statement, and poisoned to death through a catheter stuck in each arm. An execution date in the mail. The judge couldn’t even tell him face to face when his date would be and what will happen when he is executed. Just a cold, efficient, impersonal letter. Much like the execution process itself. Little Z. is not unique among Death Row Prisoners, as hundreds of us have been killed since the first Texas execution of the modem era was performed in 1982. But his case typifies what is wrong with our court system in the United States, its rush to judgment, result oriented, “kill at all costs while forsaking the historical doctrines ofjustice” mindset.
As with most Death Row prisoners, Little Z. did not have a privileged background. He was poor, came from a broken home, and to further complicate things received an injury when he was small that necessitated the placement of a metal plate in his head. The plate allowed his skull to heal, but could not cure the schizophrenia that resulted from the injury itself. He was never the same again, never a normal little boy who collected frogs and frolicked with puppies; instead, controlled by the voices in his head, he killed them. Excelling at school was out of the question, and soon he was labeled a “special needs” student, a moniker that when he entered junior high was changed to “troublemaker,”and when he was eighteen and broke the law, a symbolic red “C,” was painted on his chest, for “criminal.” Finally Little Z. committed the ultimate crime, capital murder, and found himself trapped in a version of Alice’s rabbit hole, where everything is the opposite of how it should be. Where people who should treat one respectfully do not, preferring instead to manipulate his feelings and plummet him into the deepest depression and anger. Where state officials are expected to exercise their intellect for the greater good, but opt to sacrifice their character to the gods of malevolence and shame. Never caring that inside the walls life becomes brittle and crumbles, while outside people are immune to the cries and final exhalations of the condemned.
At some point the U.S. Supreme Court outlawed the execution of the insane, but, as is its custom, provided no guidance to the individual states for what constitutes mental illness sufficient to shield one from the execution chamber, other than to say that the condemned must understand that he will be executed, and why. If there was ever an example of the Supreme Court abdicating its authority, this was it. Because defining the criteria for mental illness is left to the states there will be, and has been, a push to construct the most restrictive interpretation possible, one that is open to many opinions, depending on what political party is the flavor of the day. Almost every politician in Texas is conservative, especially in matters related to criminal justice, but even the moderates who should express their views after reasoned, moral consideration are unlikely to admit that anyone, regardless of the evidence, is so mentally ill as to be spared execution. They refer to such mercy as a “technicality,” connoting an environment wherein one, using fancy language or legerdemain in the courtroom, can evade his just desserts as imposed by a jury of his peers.
But what if the jury who imposed the sentence did not have all the facts? That Little Z. committed the crime for which he was charged is not in dispute. But as his trial date approached his court-appointed attorney did not seek a hearing to determine if he was competent to stand trial. He had a history of schizophrenia and a metal plate in his head, plus he had written letters to the presiding judge and threatened him, complaining that he, Little Z., was the target of a conspiracy between the judge and prosecutors, yet the trial attorney did not request a competency hearing. Which was fine with the prosecutors, because the attorney’s inaction waived the issue for appeal.
The term “conservative” as it relates to government is not necessarily bad, as many great thinkers of this and other countries have espoused a conservative view of societal progress, but those thinkers practiced conservatism in its purest form, that is to say, as the Merriam Webster’s Collegiate Dictionary, Tenth Edition, defines it. (Definition subsection “a”): “Tending or disposed to maintaining existing views, conditions, or institutions.” There is nothing wrong with taking a cautious approach in reviewing precedents inside the legal arena, but somewhere along the line “conservatism” became a euphemism for the shunning of fairness and justice, for if a judge is “conservative” he is likely to seek any avenue possible to deny relief to an – Appellant who under established law deserves it.
The state prosecutors have at their disposal many methods to ensure that a mentally ill person finds his way to the execution chamber. It speaks volumes that a prosecutor is willing to try a mentally ill person in the first place, because if said prosecutor were to adhere to his oath to seek justice rather than mere convictions, he would move the Court to hold a competency hearing on his own, but most do not, electing to ignore these words from the Supreme Court’s opinion in the case of Berger v. U.S, “The United States Attorney (Prosecutor) is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . . while he may strike hard blows, he is not at liberty to strike foul ones . . .”
So the trial is held and the jury never learns ofthe Defendant’s mental abnormalities, therefore he is convicted and sentenced to die. While on Death Row the Defendant, now Appellant, may seek the aid of the Unit Psychological Department, and they will perform the duties one might expect ofthem, such as medicating the Appellant, in some cases counseling him, and making periodic visits to his cell to see if he is okay, but beware what they write in his chart!
Most prison workers, from the highest Director to the lowest guard, consider themselves an arm ofthe prosecution, a view they would disavow but which is apparent “ in the testimony and documentary evidence some have given at the retrials of prisoners who have had their convictions overturned. A Director, who is almost always a former warden, may testify that based on his experience in prison management the Defendant fits a category of prisoner who cannot be rehabilitated and should therefore be executed, or, if the case isn’t a capital one, incarcerated for the rest of his life.
“Do you know this Defendant personally?” the defense attorney may ask.
“Yes.”
“While he was housed at your unit did he give you any trouble? Was he always causing problems?”
“Well, er, no. But I attribute that to his being an expert manipulator. These prisoners are very smart, you know. They understand how to pick their targets and lie in wait for the right moment to do something. This guy just never reached his right moment, but I have no doubt that if he had stayed in my prison it would have come eventually.”
“So it is your opinion that he’s a plotter, a schemer?”
“Absolutely!”
“Even though he has an IQ of 65?”
Or a prison guard may testify that the Defendant threatened him with bodily harm, or threw an unidentified liquid on him through the bars of his cell.
“I see,” the defense attorney may say. “And making threats against an officer and throwing foreign liquids on him is a violation of the prison rules, is it not?”
“You bet it is!”
“Then would you tell this jury why, if my client committed these illegal acts against you, there is no record in his file of a disciplinary report being written about either incident?”
“Uh, well, you see, I was gonna write him up, but the Sarge had a problem down on another tank and he ordered me to suit up, because we had to run in on an inmate and extract him from the cell. I got so caught up doing paperwork that I forgot all about writing up your client.”
“Both times?”
“Huh?”
“You said he threatened you one time and threw a foreign substance on you another, but there isn’t a disciplinary record for either incident. Did you have to suit up and extract someone else from his cell on each occasion?”
In the case of prison psychologists, who may also be called to testify against a prisoner, their favorite term is “malingering,” which means to fake one’s condition. An objective review of the files of most psychiatric patients on Death Row would reveal an over-usage of this term, because the psychologist understands that if he says or writes anything that could benefit a prisoner he will be ostracized by his fellow employees for being an “inmate lover” at best, and lose his job at worst. The idea is to keep the prisoners incarcerated for as long as possible, or, if one receives a reversal of his conviction, ensure that he comes back to prison. Which is understandable in a way, for if an employee revels in making prisoners’ lives miserable, even going so far as to perjure himselfto get them back under his thumb, he wouldn’t wish to see anyone get out; some may have their minds set on payback.
Little Z., as is the norm in Texas, was saddled with one court-appointed lawyer after another, and none were interested in seeing that he received a new punishment hearing. By the time he obtained for his Federal appeal the services of an attorney who cared about justice, she had little to work with. The rules of Appellate Procedure dictate that when one appeals to the Federal courts he may raise only claims raised in the State courts, and if his lawyers didn’t do their job on that level the Appellant is screwed, as there are only so many ways even a gifted attorney can rephrase what was said at the State level. On top of this little Z. had officials from the prison testify that he was malingering, that he wasn’t mentally ill, that he was just trying to avoid being executed. Against this backdrop the 5th Circuit Court of Appeals, the highest federal court next to the Supreme Court, upheld Little Z.’s conviction, paving the way for him to be given the execution date. But there’s more. In explaining their affirmance ofthe case, the justices CONCEDED that the performance of Little Z.’s trial attorney was deficient, but upheld the conviction, anyway.
A person who has been indoctrinated to believe that the U.S. justice system is fair and unbiased may ask how, when a court admits that a person’s trial attorney was ineffective, it can uphold his conviction, and this requires a labyrinthine answer. There is a case in the law books called Strickland v. Washington. and it established the standard of review in cases where ineffective assistance of counsel is claimed by an Appellant. The standard is two-pronged. First, the Appellant must show that counsel’s performance was deficient, which Little Z. did, but the second prong is the killer: The Appellant must show that but for the attorney’s deficient performance the result ofthe trial would have been different. Which requires a subjective opinion rendered about a case that is often a decade or more old, and places on the Appellant a burden that is, due to the unwillingness of conservative judges to disturb State court convictions, unmanageable.
In essence what the courts require under Strickland is that the Appellant prove that if the jury had enjoyed the benefit of all pertinent information about the Defendant’s background and character they would have judged him not death-worthy and given him a less severe sentence. A review of ineffective assistance of counsel claims in capital cases would show that most Appellants have met the burden under Strickland, but there is almost never a reversal based on a showing of ineffectiveness. The courts have their out: As in the case of Little Z., they rule that the evidence of guilt is so overwhelming as to trump any showing of attorney ineffectiveness, thus the conviction and death sentence should stand. Remember the phrase “But for counsel’s deficient performance the result of the trial would have been different”? Which judges on the various courts who affirmed Little Z.’s conviction could say with certainty that if his jury had heard the evidence of his mental incapacity they would not have sentenced him to life in prison rather than to death? Or if he were deemed incompetent to stand trial–an option that, due to his trial lawyer’s laziness, no jury ever had an opportunity to do–wouldn’t have sent him to a mental hospital where he belongs? But that would smack of a technicality. Better to execute a brain-damaged schizophrenic whose trial attorney the courts would later concede was ineffective than to send him to a mental facility and risk being labeled a weak-on-crime milksop. That is, after all, the Texas way, to kill everyone and let God sort out who was innocent, retarded, insane, or rehabilitated. Therefore the judges, forgetting their oath to pursue the administration of justice, wear blinders when presented with evidence of ineffective assistance of counsel, and exacerbate the problem by making willy-nilly rulings that had jurors heard all the facts they would still have sentenced the Defendant to death rather than to life in prison, the only other punishment available to those who have been convicted of capital murder in Texas.
So it has all been said and done, and Little Z. will be moved to the Death Watch wing of Death Row, to where people with execution dates are sent to spend their last months, weeks, days, and hours. This section has its own mystique, attended by a sense of emptiness, sorrow, despair, and fear. Regardless of where in the Death Row building one lives, when news of an execution date has been received by prison officials via fax or U.S. mail, the person to whom the date has been assigned is escorted to the Major’s office and apprised of the bad news. Then he is told that upon returning to his cell he must pack his property, as he will be moved to the Death Watch wing.
When Death Row was housed at the Ellis Unit a person wasn’t moved into the Death Watch cell until 36 hours prior to his date. Meanwhile he could fraternize with the people in his recreation group, members of which could support him emotionally and psychologically as the date approached. As ghoulish and nonsensical as the execution process is, it is much easier to endure when one is surrounded by friends and acquaintances to whom he can talk, as those who know him understand that his need is for someone to listen to him ramble, regardless ofthe subject. Then when the recreation period is over and it is time for everyone to return to his cell, it does the man with the date good to hear his fellows tell him: “Hey, I’m pulling for you, buddy. I hope those courts do the right thing for once!” But when we were relocated to the Polunsky Unit the officials took away our ability to physically associate with each other, even when one of us has an execution date.
Death Watch, structurally speaking, is a section just like any other on the Row, but the moment one walks in he sees that it is elementally different. The first thing he notices is the quiet, as if no one else is there. Later, the other denizens of the Watch ease up to their doors to inquire as to who the new arrival is. Sometimes, depending on how much of a killing mood the State is in, Death Watch is full. At other times there are only four or five people there, making an ominously quiet environment even quieter. Reflection, contemplation, prayer, and writing letters home to say goodbye to family and friends, these account for the silence. It is like Gods “time-out” room, wherein one must sit for anywhere from weeks to months and not just review his life, but prepare himself for its end. He tries to coerce his mind into believing that his being strapped down and, via a triad of poisons, smothered to death while dispassionate officials, survivors of the victim’s family, media representatives, and perhaps even the condemned’s own family look on is the final step in the natural order ofthings, but the mind rebels. It would prefer to be taken by natural causes rather than atop an altar of hate.
The Death Watch section is meant to isolate and demoralize, to remind one that he is undeserving of mercy. He sits in his cell and hopes for visits from loved ones while at the same time dreading them. He understands that the day will come when he must face those who care about him, look into their eyes, and say a tearful goodbye. His people will present a strong facade, but confronted with the certainty that he will be killed in a few hours their tears will flow as freely as his, intensifying the pain felt by both. The parties will place their hands on the plexiglass partition, and he will promise to honor their love beyond his death. It will be their belief, survivors and condemned alike, that such is the nature of love, to transcend the grasp of the Reaper. What choice have they but to believe as they do? It would be unbearable to admit that once the embers of life have been snuffed out his awareness will be erased, so it is preferable to surrender to the illusion that love will survive the poisons and their deed.
While the condemned sits in Death Watch and tries to reconcile his mind to the end of his existence the officials are stoic and judgmental, treating him with the same contempt they have exhibited since his arrival to the Row. It doesn’t bother them that a human being is sitting in the cell thinking of those events or people from the past that made him happy, such as his first pet, perhaps a scruffy dog with dark, glistening eyes that followed him wherever he went. Or elicited laughter when they played tug-of-war with an old towel, the dog digging its paws into the ground as if it were filled with menace, when in truth it would have protected its master from any evildoer. Maybe the condemned thinks of the fishing trips he, at the age of five or six, took with his grandfather, a kindly man with thinning white hair, a pink scalp, and blue eyes that twinkled in the sun, notwithstanding the cataracts that threatened to steal his vision away. Who would not cherish the memory of sitting in a boat with such an elder, being too squeamish to thread a hook through the worm and asking Grandpa to do it for him? Knowing that the old guy would not criticize or belittle, but take the duty in stride?
There is no shortage ofthoughts for one in Death Watch. Indeed, they are so plentiful that one wishes he could shut down his mind for a while. Sleep would do it but sleep brings dreams, and not pleasant ones. Plus it is folly to sleep because when one wakes up he is one day closer to the executioner’s ball. Therefore he stays awake as much as possible, tiring his mind and body, writing letter after letter for fear that he will forget to say something important to important people, holding the pen and paper to remind himself that for the moment he is a person of worth. But this view is easily shattered, because as one slips into the reverie of personal value a guard will come by to demand his name and number, ask with a smirk if he wants to recreate, or just stand there gawking at this dead man praying. If not a guard, then a prison preacher who never cared enough to stop by and talk before, but now is the time for saving souls and the preacher wants to give the condemned every chance to accept Jesus as his Lord and Savior. “What a blessed event!” this preacher may say with wet eyes and a beatific smile. “I’m so envious of you! In a short while you’ll be with our Law-urd and I’ll be stuck here doing His work! When, Law-urd, I ask you? When will you call me home, too?”
Most people in Death Watch are courteous enough to refrain from suggesting that if the preacher is in such a hurry to meet the Lord he go home at the end of the day and blow his own brains out.
When such interruptions are over, when the first-shift guards and their partners in crime, the preachers, are eating supper or watching movies with their families, the condemned can resume his reminiscing. It is odd how he recalls every incident that was significant throughout his life, whereas before he could not recall a third of them. Like the fights he had in grade school, none of which, save for those that resulted in a bloody nose, amounted to much. Or the way certain teachers would speak as they lectured the class, some of whose voices were nasal and shrill, others bass and commanding, and still others musical and pleasing to the ear. Since romance in all its guises creeps into the life of most people, the condemned may recall his first girlfriend, the cute redhead with pigtails and freckles in third grade, when kisses on the cheek were sneaked and promises to remain faithful until adulthood were made. When adulthood came a marriage would ensue, babies would be born, and the couple would live happily ever after. There would have been no plans made in the event the boy grew up to land on Death Row, leaving the girl and the children to face an uncaring world on their own, for in third grade they could not foresee such things happening in American society.
The condemned is haunted and pleased by these memories, although their recall is a razor that cuts both ways. He may remember his first real kiss and sexual experience, for maybe he married the girl with whom he shared both. But in remembering he realizes that all hope of being with her, or, if she has divorced him, someone like her, is gone, and this settles an ache in his belly, a foreboding that wraps him in wasted years, calling forth the loudest of his silent screams.
I do not know if Little Z. will have some ofthese experiences, none of them, or all of them. I cannot see into the depths of his tortured brain, therefore cannot predict what he will ponder as death draws near. But our focus, notwithstanding the tragedy of his situation, should maybe not be on what Little Z. will feel, rather, what his loved ones will feel. Somewhere out there he has a mother, an ex-wife, and some children. Brothers and sisters, too. If we concede that nothing we say or do can help Little Z., then logic suggests that we speak up for his survivors. They have done nothing to deserve what the State will put them through. Probably they are good citizens who pay their taxes, vote in elections, and are not shy about lending a hand to a neighbor or passerby in need. Just average people trying to attain their dreams. Yet the State has no compunction about subjecting them to the most psychologically destructive process imaginable, forcing them to vicariously participate in the countdown to Little Z’s execution. Imagine being in a room with your child and knowing that on a certain date someone will come in and kill him or her. Just blow out his or her life like a candle while you stand there watching, begging for mercy. Sound graphic? That is what the State of Texas has done more than 300 times since 1982. Blown out the lives of someone’s children. Or brothers. Or sisters. Or parents. And for what? Vengeance.
Much has been said about the execution process being a means of applying justice, but what is just about ripping the hearts of people who have broken no law to shreds? It has never been explained how on the one hand death penalty supporters can state that killing is wrong (when the victim was their loved one), while on the other that killing–executions–is right (when the victim is someone else’s loved on). If these people were compassionate and cared about the emotional well-being of others, the last thing they would wish is to subject them to what they themselves had already experienced and found horrendous. Maybe their pain has blinded them to the pain of others, because amid the death chants one will hear no reference made to the people the condemned will leave behind. In fact, via a misuse of the facts, those who hide beneath the cloak of justice” to ensure that executions go forward have lost their way. They refuse the extended hand of truth, regardless of the sympathy with which it is offered, and their morality sinks like a stone to the bottom of what passes for their souls.
Meanwhile Little Z. hopes, prays, writes his letters, and plans his final visits, knowing on every level of his being that the State killers will ultimately have their way.