by David R. Dow
The next case involved a trial lawyer who had been sleeping with the wife of his client. The two had sex for the first time in the lawyer’s office a week after the defendant was arrested. The conflict of interest was as obvious as they come: If his client wound up on death row, the married lawyer could keep his mistress. Judges Stream and Moss didn’t see it that way. They agreed the lawyer’s conduct was questionable, but, they continued, it was not nearly as reprehensible as what his client had done.
The last opinion in the stack dealt with a guy I knew, a guy so mentally impaired he routinely forgot to get undressed before showering. Every guard on the row knew he was feeble. Judge Moss denied the appeal. She said if the criminal had been smart enough to commit murder, he was smart enough to get executed. And then she ruled the inmate’s lawyer was in contempt of court and fined him five thousand dollars.
I said, I don’t think most of the lawyers who work on these cases even have five grand.
Sargent laughed. I said, What’s funny?
He said, As usual, Inocente, you’re missing the point.
I said, Which is what?
He said, Ain’t no environment shaping those two. It’s cool to hate. You just got to make sure you be hating the right motherfuckers.
I had not kept copies of their opinions, but at the public library in Kansas City, I printed two sets of several highlights. The morning after Reinhardt’s visit I went downstairs and gave each of my prisoners a copy.
I said, I’ve got a deal for you. If either of you can persuade me that even a single one of these ridiculous opinions you wrote makes sense, I’ll shave a year off your sentence.
Stream said, We don’t owe you any explanations for anything.
I said, John, were you listening to what I said?
He said, You’re nothing more than an arrogant punk.
Moss was looking at me like she wanted to say something.
I said, Are you familiar with the Stanford experiment?
Moss said, I am.
Stream sat in his chair and pretended to read.
I said, Congratulations, John. You have single-handedly given me empathy for the COs who used to toss my cell and steal my things and gas me for grins. I’ll see you around.
Moss said, Can you please wait for just a moment, please?
I said, Sorry, Jane. I’m afraid not.
* * *
• • •
Days passed, and then weeks. I didn’t want to hear their voices. I didn’t want to see their faces. I went downstairs only to collect the trash and bring them clean clothes.
In theory there’s a difference between an argument crafted by a lawyer and a judicial opinion. One is supposed to seek a certain outcome, the other is not. Lawyers are not expected to be neutral. Judges, on the other hand, claim to be principled and driven entirely by the rule of law, not by a desire to see a particular party prevail. The collected works of Stream and Moss obliterated the distinction. I continued to give them copies of their handiwork, but I resisted the urge to engage. Some narratives are already too far along to be rewritten by the time you arrive on the scene. Take a guy like Taylor, my Nazi neighbor from the row. A black CO might literally save his life, but Taylor still wouldn’t ever break bread with a shooter from the Crips. Same with Moss and Stream. If they couldn’t see for themselves how they’d eviscerate as many legal principles as they needed to in order to keep prisoners locked up, I didn’t see how a former prisoner like me could possibly give them any pause.
After a month, though, my resolve weakened yet again. When I brought them fresh clothes Stream said, I realize you believe I have to justify myself to you, but I am wondering whether you can first explain to me how your intentional misdeeds are justified as a response to our unknowing mistake.
I said, Don’t you think it’s a little mild to characterize allowing an innocent man to be executed as an unknowing mistake?
He said, Fair enough. Is that your answer?
I should have said Yes and left the room. Instead I said, No. My answer is that I am not trying to restore balance or order to the moral universe. This is all about teaching you a lesson, in case you are ever again in a position where it matters.
Stream said, That’s bullshit. If your holier-than-thou rationalization were true, I wouldn’t be stuck here, staring at a digital countdown.
I said, Teaching you a valuable lesson and scratching a vengeful itch are not mutually exclusive.
He said, Exactly.
I rehearsed pithy answers in my head. I wanted to say, Winning the debate and being right are not one and the same, but it was too late. He had done it again. Did the bodega have security cameras? Was there video of me sitting across from the courthouse or stalking the judges around town? Would Stream’s plane’s wreckage still contain my DNA? Maybe the paper trail I had left across the western US was so obvious any investigator would know it was a decoy. Only by staying preoccupied could I keep doubt at bay. I looked into opening a food truck. I thought about going to law school. I considered whether I had any skills Tieresse’s foundation could use.
In the end I did none of those things. Part of me thinks some other part of me knew I wouldn’t have time. Or maybe, like the Stanford students, I had simply grown to enjoy being the jailer.
* * *
• • •
Six months after the crash, the coast guard announced it was calling off the search and would resume only if new evidence or debris surfaced. A month after that, the NTSB issued its final report, declaring that while the reason for the crash remained undetermined, neither pilot error nor carbon monoxide poisoning could be ruled out. Private pilot discussion boards were more inclined to find Stream at fault. One pilot’s theory was that he had run out of fuel due to stronger than expected headwinds. This explanation was plausible, but as another pilot pointed out, it did not explain why Stream had not issued a distress call. Someone else speculated that the best cause of the radio silence was that he had turned on the cabin heat to combat the external air temperature, which was in the upper thirties, and a heater malfunction filled the cabin with carbon monoxide, rendering both Stream and Moss unconscious as the plane lost power and fell into the Gulf.
The story was on page one of the state news section of the Austin paper and was carried on the local TV stations, but no major national outlets picked it up. I felt safe once again. I went downstairs and read it to my prisoners.
I said, Here we’ve been together half a year, and I think I can finally stop looking over my shoulder. What do y’all think?
Moss said, Gloating is an ugly thing.
I said, You’re right, Jane, it is. But it’s like I’ve committed a crime and can’t be prosecuted because the statute of limitations has expired. Do you realize how exhilarating that is?
Stream had said, There are ways around those statutes.
I said, That attitude, John, is precisely why you’re here.
I resumed my routine. I flew to Cortez, Colorado, and spent a week in the wilderness of the San Juans. I rented a bike in Moab, Utah, and stayed in a one-room cabin heated by a wood stove. I went to New York and saw three Broadway shows in two days. Once a week, on Wednesday afternoons, I checked in with Olvido to say hello.
Around the same time our romance turned serious, Tieresse began selling the numerous pieces of her sprawling business. I asked her whether she was worried about being bored. She said, I have a weakness many driven people have. I cannot cut back. If I have a company to run, all I will do is run it. But I want to read more books and see more films and go to more museums. Unless I sell all of it, I won’t do any of those things. I said, I am worried you will resent me. She kissed me and said, Don’t flatter yourself, amor. It’s a priceless luxury not to have to worry about all the little things. The only way I can afford it is to go cold turkey.
With nobody looking for Stream and Moss,
I felt free to stop worrying about the little things. I decided to go back to Austin. I rented a room in a four-star downtown hotel and leased a car. Stream’s house appeared to be vacant. The lawn was manicured and mowed but the windows were dark. At Moss’s house, on the other hand, every light seemed lit. I drove by again in the morning and saw her husband get in his car. He had grown gray around the temples. I thought about leaving him a note.
There’s a scene in Raging Bull where Jake LaMotta is trying to adjust the television antenna while eating a sandwich. He’s won the middleweight championship and lost it again. LaMotta’s potbelly spills over the top of his shorts, and his brother mocks him. You can’t be tightly disciplined forever. But if you cross the line between venting the pressure and growing complacent, you’ll wake up in a cell. On Saturday afternoon, driving back into the city on US 183 after a barbeque lunch in Lockhart, I was pulled over by a Texas state trooper.
He removed his aviators and asked for my license and proof of insurance. His eyes were cobalt. His cheeks were shaved so close they shone. He took my documents, told me to remain where I was, and walked back to his car. His boots clicked on the asphalt. In the rearview mirror I could see him talking on the radio and tapping on a computer keyboard. If I fled, they would catch me. If they arrested me, would they let me go in exchange for information? I rehearsed how I would offer to make a deal. I’d say, You know those judges whose plane crashed? Yeah, well, they’re alive, and I know where they are. I watched as he strode back to my car. He said, I remember you, Mr. Zhettah. You’re famous around here. I’m going to let you off with a warning this time. Speed limit’s sixty-five, though. Okay? Have a good day, sir. I looked at the stripes on his sleeve. I said, Thank you, Sergeant.
That night I drank all the whiskey in the hotel room’s minibar and ordered room service. In my isolation, I’d begun talking to Tieresse more and more. I said, Well, my love, I got lucky and learned my lesson without having to pay a price. I won’t take the risk again. There will be no more complacency for me. From now on, I never stop sweating the little things. She said, Weren’t you paying attention, amor? It’s the little things that will steal your joy. I said, I believe I already consumed my earthly allotment of joy. She said, I do not want to hear that from you, Rafael, and I felt her lips brush mine. Before the sun came up the following day I was on my way home.
* * *
• • •
At the grocery store I bought a dozen fresh eggs and an unsliced loaf of country bread. I cooked a frittata with sundried tomatoes, garlic, red chiles, and feta cheese and carried it down to level 6 with a spatula and three plates and forks. I said, I’m a little late, but I’ve been busy. Belated happy New Year. I fixed breakfast, and I handed each of my prisoners a plate. Moss said, Thank you. Stream said, We had eight thousand cases filed in our court last year. I stopped chewing. He said, Five thousand of those were petitions for a writ of habeas corpus.
I said, Okay, I’ll play. I used to serve a thousand meals a week.
He said, Do you believe human activity is contributing to global warming?
I told him of course I did. So he asked whether I think vaccines cause autism, whether the earth is flat, and whether I accept the theory of evolution. I told him no, no, and yes. Then he asked me whether I am a scientist.
I said, That’s an interesting question, John. Most great bakers are chemists at heart, and I’ve met two or three chefs who are pretty scientific. If you ask me, they are soulless. But I guess I’m old-fashioned. Is there a point here?
He said, Yeah there is. You rely on experts just like we do.
I looked over at Moss. She had eaten her eggs and half a piece of toast and placed her fork in the middle of the plate. Stream appeared to be waiting for me to say something. I had a bite of frittata.
He said, We rely on lower court judges to do their work, and we rely on our staff attorneys. We don’t have the time to review every appeal ourselves. Everybody alive depends on experts, including you. You pretend to be a self-righteous avenger. I think you’re just a cheap hypocrite.
His outburst surprised me, and for a moment, I admired his fervor, but it did not take long for admiration to morph into disgust.
I said, Here’s the problem with your argument, John. The trial court judge to whose expertise you supposedly defer ruled in my favor. She wanted to test the DNA. You and Jane here reversed her.
Stream said, Because she was wrong.
I said, One of your colleagues didn’t think so. The way I see it, two of the state of Texas’s finest judges wanted to make sure they got it right, and two others didn’t.
Stream said, And your fellow citizens elected Judge Moss and me to be two of the three ultimate decision makers. I’m not seeing much of a line between your moral outrage and an embrace of authoritarianism.
Before I knew very much about my lawyer, Sargent filled me in on her background. She had been mentored by an Ivy League–educated Texan who had been a captain in the marine corps infantry before attending law school. He kept a tall brass spittoon on the floor in his office, and it was not for decoration. He had been the subject of an award-winning documentary, and Sargent had a copy of the biography on which the film was based. One evening a guy we called Javier was set for execution. Javier had confessed to shooting a cabdriver somewhere in West Texas, but for the past few years had been insisting he had not really done it. The day before the execution, the investigator from the case called Javier’s lawyer and admitted he had tortured Javier to extract the confession. The cop was apparently on his deathbed and anxious to clear the deck. The lawyer filed a last-minute appeal. The case went all the way up to the Supreme Court, and they did not reach a decision until after ten o’clock. They ruled against Javier, by a vote of five to four. Javier was pronounced dead around eleven. When word got back to the row, there was no raucous protest. There was just stunned silence. Sargent said, Yo, Inocente, listen to this. He read a passage from the biography quoting Olvido’s mentor. You tell the jury your client was not even at the scene, but if he was, he was not the one who pulled the trigger, and even if he did, he had a good reason. You give them A and B and C. The courtroom is not a laboratory where one answer is true and the others are false. It’s a baseball game where you don’t care whether you get a hit, take a walk, or get hit by a pitch, just so long as you wind up on first base. I was depressed about Javier. I said, As usual, compadre, your point is eluding me. He said, It ain’t only the cops and DAs who think this is a game. It’s our side too. Reason Javier ain’t back here is on account of this shit is just a sport to the dudes who know for sure they ain’t never settin’ foot in the place. You know who the Sophists were?
I did, of course. They were philosophers. According to Plato, the Sophists cared more about crafting a winning argument than about identifying the truth.
I said to Stream, Maybe the difference is not obvious to you, but it sure is to me. You know what Churchill said? The best argument against democracy is a five-minute conversation with the average voter. He might have added with an average judge, because what neither you nor the people who voted for you can even begin to comprehend is the real-world impact of your sophistry.
Stream said. Churchill never said that.
I said, Maybe you’re right, John. Maybe it’s apocryphal. But who said it isn’t the point. The point is, it’s true.
As I was gathering my things to leave Moss joined the fray. She said, I assume you are aware your lawyer has a bit of a reputation. She has gotten too close to the line too many times. Most judges are not inclined to be generous to someone who takes advantage of the system.
I said, Jane, you fined a lawyer five thousand dollars for pointing out his client was mentally retarded. I knew the guy. I’ve never seen a person so impaired in my life.
Moss said, Your lawyer is not the only one who throws Molotov cocktails.
I said, Let me make sure I underst
and: You resent aggressive lawyers, so you hold their fervor against their clients, but you will pay close attention to crappy lawyers, even though they don’t have anything to say. Do I have that right?
Stream said, Guys like you think a lawyer is crappy if he doesn’t raise a hundred issues. The reality is that most lawyers do not raise many issues because most issues are frivolous, and they recognize raising a weak claim is at least as harmful as raising no claim at all.
My parents were not devout, but they both believed in good and evil. Maybe that’s why I felt so at home in college in Utah. The Mormons who surrounded me had a very clear vision of right and wrong. I didn’t share their religious beliefs, but I could easily relate to their morality. It took being convicted of murder to realize how mistaken I had been.
I asked Stream, How many guys are on death row?
Stream said, I’m not sure.
I looked at Moss. She shrugged.
I said, Three hundred and forty-five. If I were to shoot you two right now, three hundred and forty of them wouldn’t even bother looking up from their checkers games. They’d be certain I had done the right thing. You know what that tells you about moral absolutes?
Stream said, A prison full of murderers are who you look to for moral authority?
I said, Actually, lots of guys on death row believe in the death penalty just as much as you do. But not a single one of them thinks it’s too much to ask that you be absolutely, positively sure before giving the state the green light to execute somebody.
Stream said, I’m not ever absolutely, positively sure of anything.
