I have a confession to make.
Later. First, background.
As a new lawyer, I was assigned to a death row appeal that my firm was handling pro bono. The inmate was incarcerated in the Deep South. There was little doubt that he committed the crime for which he was convicted. We were not hoping to exonerate him.
There was also little doubt that he was mentally retarded. A Supreme Court case called Atkins v. Virginia (and, one would argue, common sense), held that execution of mentally retarded criminals is "cruel and unusual punishment" prohibited by the Eighth Amendment to the United States Constitution. We hoped to save his life.
I confess - I do not know if the state eventually, obstinately and senselessly, put to death my troubled, developmentally disabled client. And I don't want to know.
Everything I'll say here is either a matter of public record or is not related to my provision of legal advise to my client. But I will obscure some information that could identify him. Because I don't want to know.
My client is (was?) almost certainly mentally retarded. He attended school in an impoverished district in an impoverished state, and few if any services were provided to him. He was obviously "slow." He received no form of special education or services directed to his disabilities.
It is documented that he was physically and sexually abused by his father at a young age. He was taken from the home and placed in foster care. He bounced between his mother's home and foster care for many years. Ultimately, his mother rejected him and the demands of caring for him. Ultimately, the foster system did much the same.
While in foster care, he exhibited "troubled" behavior. He acted out sexually, as is typically for sexually abused children. He was impulsive and aggressive, as would be expected from an abused, mentally retarded boy.
He had considerable trouble at school, and eventually dropped out. He ran away from his foster home, and it appears that no one ever even reported him gone.
Somehow, he fell in with a biker gang. He was starved for attention, for affection. They were amused by him. They provided him with drugs. There's evidence that they provided him with pornography, to get him "riled up." He had a child's mind in an adult's body, with strong sexual urges that no one had ever explained to him. He was rejected by women for being "stupid." There's evidence that the gang sexually abused him.
One night, high and egged on by his "friends," who may have accompanied him to the scene of the crime but were never pursued as accomplices, my client raped, robbed, and murdered and elderly woman in her home.
As I said, we never hoped to exonerate him. Only to save his life.
What kind of person was he? Obviously, I never knew him when he was on drugs or hanging out with a violent group of creeps who abused him and thought it was funny to watch him commit crimes (there's evidence that he committed some other non-violent crimes before the one for which he was convicted).
He liked me. He called me, collect, at least once a week. I was a new attorney, and I'd talk to him. I was probably the only person who did talk with him. No one ever visited him. He hadn't seen his family since the last time he'd been placed in foster care (separated from his siblings). He was alone.
He talked constantly about "getting out." I tried, honestly I really did, to explain to him so many times that what we were doing would not get him out of prison, that that was beyond our help. He didn't understand. Or didn't want to.
He talked about what it would be like to go to a football game. To sit with a hotdog and a beer, to do "the wave." He'd never been. He talked about seeing birds through his window, and how he'd love to own a bird some day. They were so busy, and so happy.
He talked about cake. He never had cake in prison. He wanted to have a birthday party, with cake and balloons. He thought that maybe, once, he'd had one, but couldn't remember it well.
He broke my heart. He still brings me to tears. And he brutally, violently raped and murdered an elderly woman.
I was abused as a child. Here I am, a lawyer, with a family, and a good life. And I don't entirely know why. Why this for me, and that for him, and for so many others?
It helped that I was white, that I was smart, that my teachers took an interest in me. It helped that they assumed a life's path for me, and I was happy to follow it, if it made them happy, because it was so incredible to me to be able to please someone, and to have them praise me, love me, even.
But there are so many of us out there who are damaged, who are broken. My own parents are. People talk about whether this "excuses" conduct. I don't know. I'm not religious, and I don't have a rigid code of morality, I don't believe in "evil." I just know that we're all products of our lives, and some of us were damaged quite badly when we were quite young, and when you look at the damaged and destructive lives that followed, it's like dominoes falling.
I see the path my client followed to where he ended up. I think there were so many times that someone could have helped him. I think that society failed him. But I don't think that he was "innocent," or that he should have escaped punishment for conduct that, in the end, he knew and admitted was wrong. The whole situation was tragic, and made me feel helpless.
Anyway, he was convicted long before Atkins v. Virginia. At his trial, his attorney introduced evidence that he was "simple" and "slow" to help mitigate his sentence. Among that evidence was an IQ test that was administered by the school at some point in his childhood. There was no specific evidence that he was mentally retarded, because at that time, there was no point - mental retardation didn't become a means of avoiding the death penalty until 2002.
The state fought tooth and nail to avoid developing evidence on whether he was mentally retarded. Did not want an evidentiary hearing. Would not allow him to be examined by a psychologist. Secretly administered an "IQ test" in prison, without our knowledge, without the supervision of a psychologist, and he allegedly scored 70, 1 point above the IQ range for retardation. But mental retardation is diagnosed not just from IQ testing, but also from clinical evaluation of social skills and behavior. And my client seemed to be telling me that he'd been "prepped" to take the test. And even 70 is in the range of "borderline intellectual functioning."
Why was the state so stubbornly determined to execute him without knowing if he was mentally retarded? Why not find out? He'd never go free.
And there is, of course, a problem with the Supreme Court's rule in Atkins, highlighted by the alleged "70" result on my client's prison-administered IQ test - could one point of IQ really be the difference between life and death? Is a "borderline intellectual functioning" person with an IQ of 70 really morally, ethically on a different plane than a "mentally retarded" person with an IQ of 69? This case illustrates the problem with apparently "bright line" rules in the criminal justice system - there are shades of gray at the edges of such lines.
So, how is it that I do not know what happened to him? After a few years, I switched firms. And I found that I did not want to follow his case. Did not want to know what happened to him.
I knew him, in a way very few people (including my supervising attorneys) ever would. I hated to think of the state killing him. But, honestly, I also hated to think of him, dreaming about sitting in the autumn sun watching a football game, finally having a birthday party with cake and balloons, while he spent the remainder of his life in prison. Maybe death would be a relief. Maybe it would have been a reprieve.
On senseless death, and vengeance
I do not understand why the state barrels obstinately toward the execution of a man who may not be mentally competent, or who may be innocent. I think I have some understanding, though, of why family members like the MacPhail family may claim that the execution of Troy Davis was necessary for "closure."
I've been exposed to a lot of people who bring wrongful death cases against drivers, doctors, manufacturers. It seems to me that there are some common threads.
It seems easier for some people to cope with the death of a loved one when that death is "meaningful," or had a "purpose." For example, a firefighter who died trying to save someone trapped in a building. Even Christa McAuliffe, who died in the Challenger shuttle explosion, was reaching for the stars, knew and understood the risk.
But most of us will have senseless deaths, caused randomly by accident, cancer, negligence, even an act of violence. And many of us are not equipped to process a "senseless" death.
As a society, we are not surrounded by death the way we were through most of human history. For most of history, infant and child mortality was high, life expectancy was short, and we had no real treatment for disease. Senseless death was a part of life.
We've gotten used to the idea that we're all going to live to a ripe old age. We're shocked by death that comes "unexpectedly," because it's so much rarer than it used to be. As a society, we don't discuss death, there's no model for how to process it. I find it perverse that the most popular television shows involve murder, and that every week it's a new dead body, presented without a sense of emotion or tragedy, desensitizing us to it.
I've seen too many people latch onto the idea of legal process, of "justice," in lieu of processing the death of a loved one. I think I know how it happens.
I was once in a serious car accident, and became, well, obsessed with the moments just before the crash. With reliving the normalcy, before it all fell apart. With examining all the things that could have been done differently to avoid the accident.
Like an animal in captivity that begins to go crazy, to endlessly walk the same path until there's a deep rut in enclosure, my mind would endlessly loop through these pre-crash moments. It was familiar, soothing, a relief to re-experience those moments. I'd sit silently for hours, not wanting to interact with my visitors, not wanting to be in the here and now, because I was playing back that day before the crash. It took counseling for me to stop obsessively thinking these thoughts, to force me to deal with my scars, with the changes wrought by the accident.
I think that some people latch onto "the day when justice is served," and do not process their tragedy. It's why many people fall apart, their marriages destroyed, getting addicted, after they "win" money in a civil suit. Obviously, it does not bring back the person lost. And they've spent years not truly learning how to live with their loss, looping through the "some day" fantasies of revenge, or justice.
It's the only way that I can think that someone can call the need to kill a many who may have been innocent a necessary "closure."
I don't remember there being a vocal family advocating for the death of my client. His victim was, in many ways, as alone as he was. I suspect that the state succeeded in its quest to take his life. And I'm not sure what purpose that would have served. As a member of society, I don't feel safer for it.
As an "officer of the court," and as a result of my childhood, with its unpredictability, I am a devotee of rules, by and large. I like the logical framework associated with making a case. I like insisting that my opponent establish each element of the claim. I understood when we took my death row client's case, that we could never free him from prison, that he was guilty and rightfully punished for his crime.
But I don't believe that it was justice. I think that childlike, troubled man, the boy, really, who yearned to watch birds fly free and who had never had a real childhood, never been loved the way a child should be loved, I think he could have been rehabilitated. I think he could have lived as part of society. I don't think we needed to take his life, either through execution or decades wasted in prison. I am troubled and saddened to be part of the "system" that leads to such tragic results.
Fri Sep 23, 2011 at 11:43 AM PT: UPDATED 9/23/11: I have been asked to disclose what happened to my client, and after reflecting I fortified myself to read the last chapter, as it were. He came close to execution years ago, but received a stay, and eventually was adjudged to be mentally retarded and ineligible for imposition of the death penalty. He remains incarcerated and will never be eligible for parole.