My pulse is pounding, and my eyes are playing tricks. So much depends on what I do in the next sixty minutes that I'm terrified. In these cases, the State has at stake only a number on a spreadsheet. In comparison, flesh-and-blood people have real lives at stake: children and relatives, loved ones, and husbands and wives. Who's undergoing the blood pressure/heart-rate spike? Me or Lemongrass? But I've done this many, many times. My discomfort is short-lived.
The dais where the judges sit is vacant. There are three chairs up there waiting for the men and women who are, I hope, Washington's best and brightest. The three-judge divisional panel is routine. The Court of Appeals never sits en banc. I take my seat at the wide table on the left, all alone. Cache isn't able to attend—not yet—and Marcel is off interviewing potential witnesses. Ordinarily, my local counsel would be sitting right next to me, but Larsyn is no longer an attorney of record. So that leaves just me, and that's fine. Oh, yes, Millie has arrived, and she took a pew near the back of the courtroom. I see her as I turn to smile at the press. Always smile at the press.
At the table to the right of me sits Lemongrass and an older, reserved-acting gentleman who, I am going to guess, is the Attorney General himself. It's a case of first impression in Washington. He attends today because he wants the notoriety, the scent of a good murder case rightly handled where justice gets done in the name of the people of the State of Washington.
Horseshit. These two hacks want to execute my daughter because this is the age of the dollar in politics and they aim to present the AG's best case for re-election: if he wins today, he gets to boast how he saved the State $500,000 by the accelerated execution of a convicted felon who murdered a judge.
As these thoughts scrabble through my mind, I get angrier. Which is good: I want the anger to bubble up right now, a rich vein of it; anger will lend energy to my words.
As I'm revving up, the door on the far left side of the courtroom springs open and in file three robed and bespectacled jurists ready to do their best for the cause of justice almighty. Pious, smug-looking bunch of yahoos. Two men and a woman who resembles a young Shirley MacLaine with thick eyeglasses perched halfway down her nose. One of the men is quite short and Asian; the other is quite tall and African-American. The tall one reminds me of an NBA power forward on the Bucks; the short one can barely repress a smile, and I'm wondering what in God's world could seem humorous to him on this morning with a state-sponsored murder waiting on his plate. One never knows.
They take their places; the court is called to order; they pause and whisper among themselves, passing along a sheaf of papers and finally look up, one-by-one, awaiting the Chief Judge to start the show with the magic words judges get to say, "Counsel, it's your motion. You may be heard."
No sooner are the words spoken than Lemongrass is on his feet. He winds up, sucks down a lungful of air, and he immediately begins flailing the air with his arms. Spittle flies from his lips while he curries the judges with his words and economics. He tells them the July 25 execution date should hold if for no other reason than proper money management. It's the era of low-light government rooms and uncut freeway grass, and he drones on. A government can no longer afford what it once paid without hesitation.
He's quite brief in his presentation. Two of the three judges appear disinterested even after all that—a pulse-slowing observation for me. They look down, look at me, and exhale heavy sighs as if they'd prefer the first tee to this courtroom on such a pretty summer day.
Then I hear my name, and I snap to attention. I'm quickly on my feet waiting for absolute quiet in the room. Thanks to Marcel's well-placed phone calls early this morning, the courtroom—which is quite small, to begin with—is packed with press. Many of them are networks, I'm sure.
"May it please this Honorable Court," I lie, because I see nothing honorable about it so far, "let me begin by thanking you for agreeing to hear my response and counter-motion on such short notice."
The three judges seem to nod at me. Reserved, decorous nods not unlike how a library patron might react if a gnat were to settle on her nose.
"We are here today because the Attorney General of this state wants to trade dollars for death. That's right; he wants to accelerate by several days the execution of a twenty-eight-year-old female prisoner hospitalized at Gig Harbor. He is seeking to do this just because she costs the state money. If the State of Washington has its way, we will have moved, in the United States, from an ethic where human life is priceless to where the continuance of human life is a financial calculation. A financial calculation that terminates human life, not because of humanitarian ends, and calls it ‘executions' in pursuit of justice. The new standard assimilated into the attorney general's weaponry is murder for financial savings. Is this the kind of landmark case Your Honors wish to be remembered for? It's not, but that's not even the point. The point is it's medieval. It sets civilization back five-hundred years if allowed to proceed. It's up to you to stop it.
"I could stop right here because the picture of such a sickening, cruel, horrifying future for the citizens of this state is so compelling that I'm guessing you would vote this minute to deny accelerated death. But I won't stop there. Let me get into the law as applied to our facts."
Now I present a compilation of state and federal cases that I've drawn together to demonstrate how far over the line of human decency the AG's motion has gone. The judges interrupt me twice—which is always welcomed by appellate attorneys. One judge asks why I came from out of state to represent the defendant. "I ‘fess up: I'm her father, our knowledge of each other's existence is very recent, and I would do it anyway, anywhere, for anyone if the same case were called to my attention and if I were asked to represent the man or woman on death row. That is my truth in all of this."
The woman judge stops me by holding up her hand; she wants to know how else the state could "cut its losses" in such cases. I am shocked at the congruity between her question and the AG's wish. She appears to be already on-board with the notion of the state saving money in death cases. The only question for her appears to be just how far the state should go to protect its coffers.
"Cut your losses?" I reply. Here's what I want to say: "Other ideas might include cutting back meals to one every other day, no toilet paper, no clean bedding, and, of course, the waste of energy and water in providing hot showers. Probably these should be employed as well as pushing up the date of death."
But I don't say that. Instead, I say, "Where is the law or administrative rule that says the state should consider cutting its losses in death row cases? It seems that the humanitarian ethic of steering clear of accelerated death dates is enough to recommend that losses shouldn't be cut. At least not by an early murder."
"Murder! Counsel," says the Asian judge, "when the state takes a life it isn't murder. When the state takes a life, it's the administration of justice."
I don't hesitate. "You may be right, judge. But what about those cases where, like this one, the defense attorney counsels the defendant not to testify because, unbeknownst to the defendant, the defense attorney is coaxing the trial judge to recommend him to the judgeship recently vacated by the victim. By the way, the victim had raped the defendant when she was in her early teens. That juicy little tidbit would've come out had defense counsel allowed his client to testify. Now, sir, you may call it the administration of justice but I see it as state-sponsored murder carried out by a team of bush league bureaucrats who wouldn't know justice if it bit them in the ass!"
"Counsel!" cries the taller, older judge. "You are very close to being held in contempt of this court. I know the client is also your daughter and that demands a certain leeway as you're bound to be emotional. But please let's try to keep the lid on."
He's right—as far as he's concerned. I can already hear the whispers among the media poised behind me, whispers that will hit the papers and TV screens with some of what's been said here today. Hopefully, they've learned something about the state. Early executions done
to save money won't please most citizens. More importantly, maybe some citizens will take the time to register their support of the defendant. The squeaky wheel and all that.
Now it's time to argue my motion for a new trial based on ineffective assistance of counsel in the trial court. I go into the payment by Judge Maxim of the ten thousand dollars to the Committee to Appoint Larsyn to Judge Wilberforce's seat on the bench. I wave around the image of the letter supplied to me by the assistant clerk of the court. There is also the new issue of judicial prejudice previously unaddressed by Larsyn: the blood-kin relationship of the trial judge Maxim with the so-called victim Wilberforce. Judge and nephew. A few eyebrows are raised at this, and I can hear a stirring behind me from the spectators. Then I go into the rest of it, taking my time, presenting the miscarriage of justice my daughter has suffered, a pebble at a time. As I'm rolling along, I am sure they will grant a new trial with a new judge.
In another ten minutes, I've finished my oral argument and take my seat. Now Lemongrass gets to replay his original argument. That takes less than ten minutes. I swear the guy sounds somewhat deflated and less full of himself, probably attributable to the fact this charade might very well be broadcast to the entire nation at five o'clock and he doesn't want to come across as a hitman for the state.
We wrap up, the room goes silent, the three judges turn in their chairs and consult, and, astonishingly, they turn back, and the taller one announces the verdict.
"The State's motion to accelerate the administration of the death penalty is denied. The defendant's petition for post-conviction relief—including the counter-motion for a change of judge and a new trial—is denied. We are in recess."
Just like that. We are now looking at the original execution date of August 3. Nothing has changed, in the end.
I plod outside, into the bright sunshine, that I pray Cache gets to see and gets to feel on her shoulders some day.
Millie joins me at the flagpole. It flies the U.S. flag and the green, Washington State flag. Back to our left is a thatch of red bushes and off to our right is the roadside sign identifying the court to passing cars. It's a rather unpretentious little building, and that pleases me.
Millie is a mess. Tears stream down her dark skin. She shudders and spreads her arms wide to be embraced. I accommodate her and pull her close. "Thank you," she says through her wracking sobs. "Thank you for keeping our daughter alive nine more days, Michael."
I don't know if she's being sarcastic or means it, but I decide the latter. Millie, ever the scientist, doesn't do sarcasm all that much and maybe not at all. It's been a long time since I've just talked to her and much of her personality is forgotten by me. Verona, who is coming in today, would be happy to know that.
Suddenly the dam inside of me breaks.
"The sons-of-bitches denied my motion for a change of judge even in the face of a ten thousand dollar payoff and even in the face of a close blood relationship between the judge and the so-called victim."
"Something stinks to high heavens."
"Tell me about it."
"Where do we go from here, Michael?"
"State Supreme Court. I've already got the notice of appeal drawn up, printed out, and Marcel is on his way to deliver it because he didn't hear otherwise from me by noon. It's now 12:07 and time's up. I've also attached the identical motion for emergency hearing and crossed the T's and dotted the I's."
"Good on you, Michael. Thanks for that."
I stop looking around at the beautiful day and focus down on her. "Thank me? I'm her father, for godssakes. There's no thanking me! It's my duty, goddamit! And if you had recognized this twenty-five years ago and allowed me access to my daughter and her life we probably wouldn't be here today. Damn you, Millicent!"
She turns away, weeping again. And I feel like a total butthole.
"Come here," I say, turning her with my hand on her shoulder. "That shouldn't have been said. I'm sorry. Look at me. I'm sorry. Do you forgive me?"
She's weeping but manages to jerk a layer of tissues from her purse and removes her sunglasses. She wipes her eyes and then blows her nose.
"No need to ask. You were forgiven before you even said it. I deserved to be talked to like that, Michael. It's a terrible thing I've done. I can't and won't argue with that. It was, and is, terrible."
I pull my sunglasses out and hide behind them. "You know what? I feel like hitting Mickey D's and polishing off a Big Mac with fries. You ready to have a heart-stopping experience with me, Millie?"
"Sure I am. I came here in a taxi."
"Then we'll take my SUV. I think I saw the golden arches a few blocks back. Follow me."
While we head for the SUV, strolling under a cerulean sky that looks as if it hasn't seen clouds in years, Millie does the unthinkable. She reaches over, takes my hand in hers, and squeezes. Just as quickly, she disengages, dropping my hand back down to swing with my stride.
I appear not to notice.
But I have noticed. And I am grateful Verona is hitting town today.
It's just the kind of restraint I need while I'm increasingly unable to rein in my feelings. There's great comfort in a shared catastrophe. We are sharing this morning's right now, and we are very close.
I once loved this woman. Short, sweet, all true.
But there it is.
DAY 14/30
It's a new day—the fourteenth of thirty days.
I got Lucky the dog, and I got really lucky last night.
How did my life go from catastrophe at the court of appeals to an abundance of luck in my life?
It's all happened in my heart, where I really live.
Yesterday, Verona got in late, found my hotel, and rapped on the door while Lucky barked. It was good to see how Lucky's already become territorial. This is his place, he announced with his barks. Verona entered and did a slow look around. Like wives can be, she is territorial, too. It all looked acceptable and singular, so she relaxed. We hadn't seen each other for awhile, so we talked, drank ice tea, and talked some more. Then we snuggled up and made love until two a.m. It was very gentle, and we felt like one person.
Marcel calls and wants to see me this afternoon. He has something to run by me. I ask him to call later, maybe around two or three.
This morning, I am rested, relaxed, and ready to storm the Washington Supreme Court. Marcel has arranged a ten a.m. teleconference with one of the justices. He—or she, N.T. McKinney—will decide whether the court should take up the matter of the emergency appeal or just deny it out of hand. I've got my foot in the door, in other words.
But first comes breakfast from the Escoffier kitchen of this hotel. This morning's dining reminds me that Verona once attended a month-long Paris culinary school, mastering everything Le Guide Escoffier had to offer. This was while she was living in Moscow with her first husband and their children were young. Verona was very happy then. I know it more than I hear it, however. I try to get her to speak more of that incredible time in her life when there was youth, love, and young children, but it's almost like she's afraid to go there.
"It hurts to go back over those things," she says whenever I try to bring it up. "The stars were aligned just so. Then Mikhail died in that boat in Colombia, and the entire world changed color. The leaves were no longer green and gold, but gray; the sky was no longer blue, but an ashen wash; my children's voices were no longer poetry to a mother but became as honking geese. His death changed it all, and it still is all changed. Thank God, there's you, Michael. The colorless world is slowly recovering."
I can only look at her. But she turns back to the plate of food before her. She won't look at me. I know how desperately hurt she is, how much she still loves her dead husband. I would give her back to him in a second should he reappear, though it would break my heart because I love her more than I have ever loved. But if it made her happier to return to him, I would step aside.
But it's not in the cards.
We eat, slowly and quietly, then we pour
another cup and retreat to the loveseat in my suite. It is a houndstooth fabric, where we sit, black against white so that it, too, becomes gray. My poor wife, I am thinking.
"Hey," I shout, "why don't we do something terrifically fun today? Like drive over to Coeur d'Alene and have a late lunch or picnic by the lake. With a bottle of wine of your choosing?"
She places her feet side-by-side on the floor and stares down at the symmetry. She lifts her eyes to me to speak.
"No, I didn't come all this way to drink wine and look at a lake. I need to first go and meet our new daughter."
Did I just hear myself correctly? Our?
I love her for the way she takes on my life issue and joins me in it, making it our issue. That's when people no longer feel lonely.
"I thought you might say that," I reply, "let me call the Supreme Court at 9:59, put my petition on the record, and we'll head out to Gig Harbor. Lucky loves to travel."
"Good. You can try one more time to explain to me why we have a new dog. I'm all ears, Michael."
Good, she's back to her usual self.
At 9:59 I dial and find myself on hold while Lemongrass joins the conference call. At 10:02 a voice announces that Lemongrass is on the line, then I am on the line, and Justice N.T. McKinney comes online. A new voice speaks up. "Gentlemen, this is Justice McKinney. I've read the petition for post-conviction relief that was denied yesterday by the Court of Appeals, Division Three, and the response. Mr. Gresham, it's your petition. Please present your case for an accelerated hearing in this court. I'll rule on that before the court takes up the post-conviction relief and its substantive complaints of error."
I clear my throat and begin. Mainly I make the same argument that I made yesterday to the Court of Appeals except this time it's the Supreme Court I'm talking to, and that challenge is not lost on me. It takes all of fifteen minutes, and I'm done. Lemongrass sounds like a recording from yesterday's oral argument; nothing new there.
30 Days of Justis Page 13
