Thanksgiving Day on the Row began with a joke gone wrong, and ended with Batman calling an officer a “pustular berk with all the charisma of a plimsole”, as he threw several pieces of sweet-bean pie out on the run.
“What’s a ‘plimsole’?” Rabbit asked, his voice traveling 250-feet down a vanishingly thin transistor wire from two sections over and into my radio’s headphones. Years ago, some unnamed convicts figured out how to hack the circuit board of our clock radios so you could create an intercom system using one-half of a set of headphones as a microphone. All over the building, one can find – if one looks very carefully with an LED flashlight – thin wires running out of certain cells, into the dayrooms, and out again towards the next section. Rod and I had spent the better part of the past week climbing the dayroom bars when the picket officer’s back was turned, little pieces of tape stuck to our fingers, connecting our cells in Deathwatch to Rabbit and Judge, two of our closest friends living in the regular, non-terminal cells on A-Pod. I’d been “on the mics”, as we liked to put it, with many of my friends who had dates, traveling with them until their last hours; now, it was my turn to bear witness to others.
“I don’t have the slightest idea,” I admitted to my friend’s question. “I’m looking it up right now.”
“It’s a kind of shoe, I think,” Judge cut in.
“Yeah, a canvas shoe,” I answered, reading the definition to the group. “Apparently an ugly one, if Batman is to be trusted on style.”
“And a ‘berk’?”
“Again, no idea,” I responded quickly, already ahead of him. “I can’t find it with any of the usual vowels. For instance, my dictionary goes from Bering Strait directly to Berkeley. Sounds kind of posh, as insult terms go.”
“And ‘pustular’?”
“You know, like a pustule… a pimple or blister. The adjective thereof.”
Silence.
“So… like two-thirds of that insult went over our heads – what percentage do you think Officer H- understood?” Rabbit asked at last.
“I don’t know, but he’s throwing pie at him right now,” Rod laughed.
I had to put my headphones down on my table so I could run to the door to watch the show. Sure enough, pieces of crust and dark, toad-colored filling littered the run.
“It has not been a good morning for His Royal Highness,” I concluded, as soon as I returned to my desk.
It had not. Around 8am, a captain had walked the pod. All of the important ranking officers had the day off, so I honestly don’t know what he was up to. The only reason I even knew he was there was because Batman stopped him. John could always be depended upon to chat up whatever lawman happened to be around, A-Section’s own anti-personnel intruder alarm. I didn’t hear the first part of their conversation, but towards the end John had to raise his voice a little because the captain had already disregarded him and was walking down the stairs.
“Hey, Captain, I got a joke for you.”
In a place where nearly everyone’s ego has been battered and bruised for years, almost all jokes are weaponized. So, by the time I arrived at my door, the captain was giving Batman a wary look, like he was smelling the trap but couldn’t quite see it yet. I could feel John’s grin through a foot of concrete.
“It’s a physics joke, basic math. If you, Warden M-, and Major S- all jumped off the roof of 12-Building, who would hit the ground first?”
The captain definitely didn’t like where this was going, and it was obvious that he was trying to decide on the level of diplomacy required by the situation when Batman interrupted him. “Easy answer: Who the hell cares?” This was followed by a long, cackling laughter.
The officer’s lips thinned and you could tell he was swallowing a hefty dose of the first words that came to his mind. He finally cinched up his belt, a placating behavior that I’ve noticed is common with people who carry weapons at their waist. “Enjoy your Thanksgiving, Battaglia. You can tell me that joke again mid-February, we’ll see if it’s aged well.” Long pause. “Oh, that’s right. Byeeee!”
This produced the expected firehose torrent of vitriol, so I backed away from my door. A few years before, I’d asked my friend, Lester Bower, to describe what living on Deathwatch was like. A careful, thoughtful man, he reflected for a few minutes before saying, “The learning curve gets pretty steep at the end. Best to do all the preparing you can before you end up here.” I was finding his words to be very wise. One could start to feel the tension levels ratcheting slowly upwards as the days passed. Anthony Shore had spent a number of afternoons ensconced in a back room with the Texas Rangers, and came back smiling but otherwise mum. Everyone was wondering if he was clearing some of his old cases, or if he was trying to make one of us his next target. Every time he left, chatter started up, and this was making people snap at each other. The fact that the State served bean pie for dessert on Thanksgiving seemed to be the final straw for Batman. That probably doesn’t make much sense to a civilian, I know. (It doesn’t.) You have to try to place yourself into a world where virtually all of the normal pleasures in life are eliminated or put under such pressure that they are deformed into something ugly. Food, even the relatively mediocre food offered at the commissary, takes on an outsized importance. In the TDCJ, there are basically two trays out of the 1,095 served each year that are expected to be decent: Thanksgiving, and Christmas. Bean pie didn’t apparently make the grade for John, and he snapped. In his defense, I don’t think any of us were aware that such gustatory train wrecks even existed prior to our arrival in this strange place. For the record, if you are ever offered this dessert some time, go with pumpkin instead.
Outside of food, there are really only two crutches available to the condemned: religion and the law. It’s pretty common to hear about men having ‘road to Damascus’ type conversations after coming to Deathwatch. I suppose that’s understandable, even if I do think ‘Pascal’s wager’ is little better than an exercise for moral hypocrisy. Somewhat more rare (though nowhere near enough) are the instances when one of the newly converted gets delusions of grandeur about their newfound prophet status and makes the entire section miserable with the fires of their zeal. It’s no longer sufficient for them to believe something, you have to believe it too. Fortunately, no one in my class exhibited signs of this peculiar form of Jerusalem syndrome. Aside from me, everyone was a theist of some stripe, but theists of a mostly private nature. Small blessings from the universe.
Of the lesser gods of jurisprudence, only Rod and myself offered obeisance. It had come to Rod’s attention lately that the medical examiner overseeing his case had been censured for having a sexual relationship with one of his subordinates; during the subsequent investigation, it was discovered that this medical examiner had also not conducted many of the autopsies he had signed off on, instead allowing unqualified underlings to work in his stead, often with police investigators in the room supplying helpful theories and conclusions. Rod was attempting to find out if this applied to his case and, if so, whether a stay of execution might be granted so that additional filings could be submitted.
Of the clemency process, it appeared that only Rod, Juan Castillo and I had agreed to speak with a parole officer from Huntsville, the first step along the path to a hearing with one of the seven members of the Texas Board of Pardons and Paroles. Those numbers of participation were pretty close to average.
*****
I doubt that a day has passed during my time in prison when I didn’t actively long for a hidden video camera. I’ve seldom managed to find words capable of penetrating the dense layer of apathy most Americans construct between themselves and thoughts about the prison system; I know better than most the despair felt after producing what I believe will be a narrative capable of inspiring someone to think or vote differently, only to find this land to a chorus of yawns. I hope it is not naïve to believe that video footage would succeed where mere words on a screen fail. If the public could but catch a brief glimpse of what passes for “justice” in this nation! My initial hearing with the parole officer is a prime example of the immense distance between public perception and the sordid, shambolic reality. How would you expect a hearing to determine a person’s continued existence to look? A professional setting, perhaps; maybe a room lined with law journals or something. Numerous professionally dressed types, maybe a stenographer, or at least someone sufficiently bookish taking copious notes. The reality is not even close.
On the morning of my interview, I was led to one of the three “legal booths” situated along the central hallway of 12-Building. These enclosures consist of two four-by-six foot cells, separated by a thick pane of glass and iron mesh. They seem to be used mostly by mental health officials to screen troubled prisoners, of which 12-Building possesses an abundance. Because inmates are often left in these spaces for hours after these interviews are completed, they always smell of urine or feces. Indeed, on the day in late-November when I met with this functionary, a puddle of urine lay drying in one of the corners of my booth. I ended up staring at this for some time, reminding myself over and over again that omens do not exist outside of the mind.
Fool that I am, I honestly expected a thorough grilling about my crime, my conduct in prison, and my request for clemency. I had brought with me two large legal folders containing diplomas, affidavits, a complete record of my publication history – in short, a documented image of what a model prisoner ought to look like. What I ended up getting was a sermon of sorts on Calvinistic theology, soteriology, and morality.
Things didn’t start out auspiciously. The woman sent from Huntsville couldn’t seem to get her generous proportions comfortably seated on the cheap plastic chair provided by the Major’s office. The legal booths all contain sets of telephones installed on either side of the glass, but inmates had stolen the magnets out of them long before I was ever sent to the Row, making them little better than wall decorations. When the parole officer picked hers up, I leaned over and spoke through the metal mesh, trying to explain this fact. She cut me off immediately, angrily asking if I had been the one to steal the magnets. I had no idea what to say to this, my mind stuttering to a coughing, wheezing stop. Who the hell would try to add complications to one’s ability to communicate when the entire point of the conversation was to try to save one’s life? Instead of voicing this, I concentrated on a single thought: Do not anger the nice lady from Huntsville. I ended up having to repeat some variation of this mantra several times during the two hours we spent together, though the adjectives shifted from synonyms of “nice” to ones orbiting “crazy as hell”. As she fumed, an officer was summoned, who promptly repeated exactly what I had been trying to tell her about the malfunctioning phones, and that we would have to bend over to speak through the screen. The woman harrumphed loudly, and began complaining about her neck. My doubts, so carefully corralled into locked rooms inside my head, began to murmur and tap on the walls.
I wish I could be somewhat more fair to this woman. However, she was a nearly perfect example of a difficulty I have sometimes encountered when writing about the employees found in the Texas prison system. People are always complex. We all know this. When we come across one-dimensional, stock characters in fiction, we recognize it immediately, and usually reject just as quickly this characterization as false, or at least unimaginative. And yet, these officers are trained to only show us one face, and that face often ends up looking like the sort of thing I might be accused of inventing, as if I sat around imagining how to construct some sort of apotheosis of redneckery, a universal embodiment of all of the worst stereotypes people think about when they imagine the Deep South. And yet (and yet, and yet, and yet), caricatures and typecasts abound because the traits they inflate actually exist in some general, distributed sense, and it is just a fact in the increasingly modern Texas that if you are someone with authoritarian tendencies, low education levels, and an inability to get hired by police agencies, the prison system is pretty much the only place in the state left where you can get decent medical insurance. I’m sure this parole officer had some positive traits; I’m sure she had layers to her beliefs that allowed for the possibility of nuance. It’s just that she allowed me no view of this multi-dimensionality, and that’s the problem: if people like this are the gateways to the clemency process, it’s no wonder that so few inmates have managed to find success there. People can believe whatever stupid things they like, but when those beliefs not only inform but almost entirely determine a judicial outcome – like the actual existence of human beings – they open themselves up to critical evaluation. In this state, the First Amendment isn’t even a joke to be worked around.
Given this lady was giving me both barrels of her native unpleasantness, I briefly considered whether she was trying to throw me off or anger me, a sort of test of my ability to weather stress and hostility. If so, she was an exceptional actress. Within minutes, I could tell that this was not the case; my calm demeanor irritated her, and irritated her progressively, but I didn’t really know what to do about it, considering how much worse the alternative would be. It was like she had already written a report condemning me for my combativeness, and I wasn’t playing the part she needed me to. She seemed particularly irked by the stack of materials I was trying to submit for the Board’s review. According to her, she couldn’t accept documents from me directly, a point which I now know to be incorrect; had I not also sent copies of everything to the Board directly, this tactic of hers would have been effective in preventing the members from having ever seen these materials. Instead, she decided that she would flip through my paperwork, and would select certain exhibits to be copied. A secretary from the Major’s office was summoned. The number of women in authority casting frowns in my direction doubled. My doubts were shouting now, and beginning to self-organize into committees. The stack of materials set down in the ‘disregard’ pile was adding up, while those documents selected for copying remained fairly paltry. I noticed pretty quickly that this latter group consisted mostly of the roughly fifty religious courses I had completed over the years – though I also noticed that she frowned over and did not include any of the Buddhist ones. She slowed down a bit when she opened my folder containing roughly two dozen essays I had curated for consideration, as well as a summary of my overall publication history: 150 or so essays I had written for Minutes Before Six (MB6), a non-profit journal for incarcerated writers I founded in 2007; 250 or so academic essays penned during my undergraduate studies; and another 170 or so papers written while completing my Master’s. The message I had desired to send to the Board was pretty simple: I had not wasted my time on the Row – indeed, I had been engaged in positive activities aimed at rehabilitating and educating myself.
I could tell, almost from the outset, that this functionary was not receiving the intended message clearly, but the nature of the problem didn’t become clear until she stopped breezing her way through my paperwork and focused on a single essay.
“Oh, yes, I know these two,” she remarked, not, I noticed, without a certain degree of smugness. I leaned over to see an essay I had written years ago about the similarities between Camus’ essay “The Myth of Sisyphus” and Hemingway’s novel The Old Man and the Sea. I tried to recall my main theme: that some of the major modernist writers had mapped out the contours of existentialism a decade or two before Heidegger and company had explored that particular terrain formally.
“Oh, yes,” the lady repeated, casting her eyes to meet mine. “I studied both of these men. Both denied the Gospels, and both were driven by the demons of suicide to their deaths.” Crap, I thought, then: Do not correct the batshit crazy lady from Huntsville. “If their decisions were influenced by other Powers, wouldn’t that negate the freedom of the will necessary for condemnation to have any validity?” were words that absolutely did not pass my lips. Instead, I died a little inside and nodded politely, not so much agreeing, but allowing her the floor. “My brother is a professor,” she continued, the odd stress she put on his occupation indicating she felt it to be about on par with a serial rapist. “Very smart man, but he thinks just like Camus. Oh, the debates we’ve had, but I know who will win out in the end. We’ll see how smart he feels then.” The look she gave me was triumphant, and I no longer knew whether we were talking about Camus, her brother, or me. This morphed into a sermon on predestination (or at least a Calvinist-lite version), a subject that I mostly ducked and dodged my way through, before arriving back at the safe ground of my criminal history. Never had I been so relieved to return to the topic of my worst mistakes.
I arrived back at my cell feeling like the rope in a tug-of-war contest.
“Well?” asked Rod, as soon as I had connected to the mic network.
“I think I just met the modern, female version of Torquemada. Or Tertullian. Which is the one who thought the chief pleasure of Heaven would be contemplating the miseries of the damned in Hell?”
“So, I’m hearing you say it went really well.”
I struggled to put my frazzled thoughts into words. “It was like… a very strong type of culture shock,” I started, before pausing. Over the course of my years in prison, I had attempted to put the pieces of my mind into some semblance of order, to gather genuine knowledge and dispense with all of the delusions that had caused me to commit my crime in the first place. The tools of what Carl Sagan called “the fine art of baloney detection” became my faith: independent confirmation of “facts”, an encouraging of substantive debate on all evidence by knowledgeable proponents of all points of view, a disregarding of arguments from authority, an attempt to quantify values instead of using vague heuristics, to use as many controls as a situation allows, and so forth. This commitment had taken me on a journey from political conservative to liberal, from fundamentalist Christian to Spinozistic pantheist. In other words, knowledge had come with a heavy cost, but the values it taught were the values that allowed the world to become modern in the first place, and that which was lost was a sacrifice of ignorant certainty. I had surrounded myself with people who saw the Enlightenment as a net positive, and who desired a second coming to push us past the current postmodernist rot that was infecting the West. This woman appreciated none of that; virtually everything I had learned over the years while in prison was in direct, hostile opposition to her version of reality. Not only had I not done my time well, in her eyes I had probably delved even further into evil.
“We sometimes mock people who claim to have a black and white view of morality,” I continued at last. “But I think these are mostly strawmen we invent to make our own arguments or positions seem more urbane and advanced. We don’t really believe people like that exist anymore, if they ever did. I think this woman is one of the true believers, though. And since she has the power to punish those who disagree with her, she’s taking advantage of it.”
That gave him pause. “Well,” he breathed eventually, “if it’s any comfort, as a Catholic in good standing with connections to the Vatican, I can pretty much guarantee you that you aren’t going to spend an eternity in Hell.”
“Ah, thanks. I think.”
“I can’t do much about the eleventy bazillion years you are going to have to spend in Purgatory, though. Maybe, if you make me some tacos tonight, I can talk with Jesus about knocking a few years off here and there.”
“Talking theology with you always makes me feel warm and fuzzy, you know that?”
Two days later, we all had reason to feel that way when the local NPR station reported that Juan Castillo, my neighbor on the right, had been granted a stay of execution so the State could test some of the evidence in his case. I heard the news and started shouting and kicking the wall. Everyone was soon cheering, and inmates began calling over from other sections to make sure he had heard the news. He kept asking if we were pulling a prank on him, so conditioned was he to disappointment and failure. An escort team arrived a few hours later, and told him to pack his stuff. I’ve never seen an inmate leave a section so fast – neutrinos would have been envious. He was literally dragging a pair of officers in his wake.
A psychologist would have had a field day describing the multihued varieties of envy flowing out of the cells on A-Section as Castillo fled the abyss. I doubt there was a single occupant of those cells who didn’t immediately begin calculating the odds. Of all the people given execution dates in recent years, about a third had been given stays. With Castillo gone, the cold realities of mathematics were starting to look very problematic for the rest of us. The numbers were recalculated a few days later when Erick “Truman” Davila arrived, his date set for the 25th of April. Truman was not, to put it mildly, someone who valued restraint or the keeping of his opinions to himself. Whereas Rod, Batman, Rayford, Castillo, Tabler and I had more or less decided to step carefully around the issue of Shore’s frequent chit-chats with the police, Truman wasn’t having any of our collective discretion. Almost from the first hour, he was calling T-Bone variations of “Sir Snitch-a-lot”. Initially, I thought that this might increase the tension in the section, but it actually served to let some of it bleed off in a strange way. It was like we no longer had to ignore it: Anthony was snitching, and now we could get on with whatever else we were doing.
*****
When I look back over my journal from the month of December, what strikes me most is that my overwhelming concern was that I was going to leave some projects incomplete. This was how I was obviously conceptualizing my end and trying to resolve my feelings of guilt: as a failure to comply with my duties and obligations. I wish now that I had spoken more about this with everyone else. Knowing Rod the way I did, I know that he viewed his death in religious terms, as a chance to rid himself of some terrible mistakes, and a chance to see his dad again. I suspect that Rayford was in this camp as well, and I know that whether or not the State killed him, he felt that he had mostly lived out the full measure of his life in any case; I’d heard him use the very Jobian term that he was “full of days” on a number of occasions, and it always made me smile a little. Shore was obviously terrified of death, or he wouldn’t have been willing to sacrifice every last vestige of his virtue in an attempt to preserve his life. Truman, I would come to see, viewed his demise in heroic terms: he would die a soldier-martyr for the “Stop 6 Bloods”, his crime having allegedly been committed in the furtherance of this gang’s goals. I’d never met such a person before. While I might have some obvious doubts about whether all of the prison gangs in the world are worth a single human life, this story he was telling himself did grant him genuine strength. I never once heard him complain. If anything, he was the condemned least affected by his fate. Only once did I hear him say anything that indicated he was concerned about where things were heading. Polunsky sits right next door to a tiny regional airport, so small private planes are constantly sputtering their engines above us as they take off. One morning, one of those vehicles seemed particularly loud, and I heard him call out something like, “I’m here!”, as if he wanted them to swoop down and lift him to safety. It was a clear attempt at affirmation of existence, as if he was coming to terms with the idea that, very soon, he would not be here.
I have no idea what Batman was feeling. I originally wrote he was, in Thomas Pynchon’s words, a “chaos of peeves, whims, hallucinations and all-round assholery”. Maybe. Looking back from this distance, though, it sometimes feels like his outbursts had more to do with a certain default or readiness of expression, rather than a genuine depth of feeling. I think he mostly just felt tired, and was ready for the prison chapters of his particular story to come to an end. In that we could agree. Going through a death penalty trial does strange things to one’s sense of guilt. I can’t speak for everyone, but I suspect that most of us felt a crushing sense of despair over the choices we’d made, not to mention some confusion over how so many tiny decisions had led up to something so terrible. Over the years, I have heard numerous inmates remark that “this isn’t [their] life”, meaning, I think, that whatever they did to get convicted, it was a mistake and outside of their true characters. Sure, we all had regrets over the outcomes of our decisions; nobody wanted to get dragged off to the Walls Unit to be put down like a mangy dog. I think most of us had an even deeper sense of remorse and failure over the motives that we felt catalyzed our crimes, however. For most people, when they say they feel “guilty” over some decision, what they are talking about is something really very vanilla in the grand scheme of things. That species of guilt feels nothing like the type that hollows out and strangles you when you have to wake up every single morning knowing that another sentient creature is no longer alive because of you. It is a brutal, crushing thing, and if there was any silver lining to my execution, it was that I wouldn’t have to wince every time I saw an advertisement in the newspaper, or heard a song on the radio, that reminded me of my brother or my mother – although, even this felt like a shameful evasion of the responsibility of feeling the pain I deserved to feel, a sort of moral failure creating an even deeper and more complex whirl of guilty feelings. If there is a sort of inverse-square law for guilt, I never noticed it.
For all of my Sartrean focus on tasks and projects, I was having a surprisingly difficult time finishing the ones that seemed the most important to me. Master wordsmiths like Jane Austin might have been able to write a whole bunch of books in the midst of the Napoleonic Wars and not mention them, but it seemed like every time I sat down with pencil and paper, I inevitably ended up orbiting the subject of death. In only two projects did this prove to be marginally useful. I’d completed all of my coursework for a Master’s degree in Humanities the year before, but I was still struggling to complete my thesis. Turns out, doing research without the aid of search algorithms or libraries is a bit of a slog. I’d been leapfrogging from bibliography to source text to increasingly worn out friends in the free world for more than a year, finally completing everything but the last chapter. Since I was writing about the missing image of resistance in Michel Foucault’s early work, the looming specter of the 22nd of February added an extra dose of reality to the subject. I would complete the final draft 38 days prior to my execution.
For most of my time on the Row, I’d been writing a book in serial about the time I spent running from the law in Mexico. We post new content every Thursday on MB6, but whenever we had an open week and needed filler, we’d publish a chapter. Stretched out over many years, the narrative was a description of a finite time period, but it had also become a sort of slide show on the evolution of my thinking and style of writing. Given this latter point, it felt right that the final chapter of this series should be written as my end approached. I’d deliberately waited to write its last section as my case was working its way through the Supreme Court. I managed to complete the chronicle just a few days before Christmas.
All of that left me feeling pretty good. However, on the more important project of my clemency petition, I felt like I’d spent most of the month of December spinning my wheels. I had all sorts of ideas and plans and theories stored away for this moment, but when it came to finally actualizing them, not much was getting accomplished. For instance, I had a media strategy all laid out – one that utilized a long list of local reporters who had written fair stories on the subject of capital punishment over the previous decade. This approach involved saturating the local media with stories, to the point that regional outlets would become interested. Then, if we were lucky, newspapers like The Washington Post, and radio outfits like the BBC, who have a far wider reach, would pick it up. I’d written myself long explanations about which sources seemed to be connected: the way story X would likely flow through certain outlets in predictable patterns; which reporters did double, or even triple, duty with different news organizations; and which blogs and podcasts seemed to be monitored by influential people. What I wasn’t certain about was timing. I knew that I had to file the final version of my clemency petition by the 1st of February, exactly three weeks before my date. I also knew that I was going to be meeting with one of the members of the Board at some point, since I had requested this in writing. The question was: When would media saturation be most impactful? I had no illusions about getting Fox Noise or Breitbart to run a positive story on my family’s situation, but some viewers of those outlets watched or subscribed to ones that I should have been able to penetrate, and the letters and phone calls of this small, conservative subset were going to play an outsized importance in the days leading up to my execution. I not only needed a wave, I needed it to crest at exactly the right moment.
For all of their legal brilliance, neither David Dow nor James Rytting seemed all that knowledgeable on this subject. They were wary of the press, for good reasons, but now their reticence was working against me. They had other matters to focus on, in any case. Dow was handling my eleventh hour state court appeals, Rytting my federal ones. Both would center on the issue of “future dangerousness”. Most people do not know this, but no one in Texas is technically executed for the crime that caused them to be arrested in the first place. Instead, after jurors have convicted a defendant of capital murder, they are asked “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society”. We are, in fact, executed over prophecy. Of the five states that have a procedure like this, none define what constitutes a future danger, so jurors are free to forecast as they like. The American Psychological Association estimates that roughly two out of three predictions of future danger made by psychologists are wrong, and subsequent data on the behavior of death sentenced inmates whose cases were commuted to a lesser sentence have borne this out. Future dangerousness is junk science, and we intended to show that the jury had simply gotten their prediction wrong by presenting to the court my disciplinary history in prison. This was a long shot, no matter how true it may have been, no matter how logical, but all such last-minute appeals are. I, personally, had zero confidence in the TCCA setting precedent on something like this. Take future dangerousness away and Texas doesn’t out-execute everyone else in the modern world – and we can’t have that, can we?
Thanks to a significant donation given at the beginning of November from an MB6 supporter from Hong Kong, I had been able to hire Salima Pirmohamed, a lawyer who typically handled mitigation research issues in capital appeals. She had formally organized all of the materials for submission to the Board, and was also contacting correctional officers to see if any of them would be willing to write affidavits testifying to my positive behavior in prison. If I was to be executed because I was too dangerous an individual, even for the prison society – the core of the future dangerousness argument – then having such officers affirm that they would be fine working around me in the general population environment could be very powerful attestations to provide to the Board. Getting them to participate was going to be tricky, however, as correctional officers are strongly advised not to assist in legal matters that could potentially benefit inmates (they are encouraged to testify against them, naturally, and many do). More than three dozen officers had swung by my cell during my first few weeks on Deathwatch to let me know that they didn’t agree with my execution. Many of them agreed to speak with one of my representatives. One of them, however, wasn’t certain about whether she would be allowed to do this, and approached her shift lieutenant. Almost immediately, a sergeant from the Office of the Inspector General (OIG) met with staff during their morning “turn out” briefing, and threatened termination if anyone spoke with my attorneys. Considering the purpose of the OIG is to investigate criminal behavior in the prison system, it is curious that they would have gotten involved in this in any way, and I have no real explanation for it. Since OIG staff are legitimate police officers, accustomed to working with the FBI and the DEA in gang taskforce operations, maybe the government thought they would be the scariest messengers. Whatever the reason, after this, only four correctional officers ended up submitting affidavits – still, a miracle when you think about it. All four had either moved on to new jobs or different prisons, so weren’t present for the OIG’s tampering. Whatever else you can say about their tactic, it was highly effective.
It became clearer to me, as the days of December ticked by, that I badly needed Keith Hampton on my team. Dow and Pirmohamed had been attempting to sway him on his participation, but he remained hesitant. With deadlines fast approaching, my father finally called Hampton and had a long conversation with him. His initial resistance dealt with the almost universally sensationalist media coverage my case had produced, what he referred to as “a tidal wave of propaganda”. When my dad explained that this was largely due to the fact that we’d never really had any sort of professional help in shaping the coverage – indeed, we seldom called reporters out for any of the outright falsehoods they regularly repeated to each other – he became more interested. By the end of the conversation, the attorney I had always wanted to handle my clemency petition was onboard. He later told me that before he’d gone to bed the evening following my father’s phone call, he had already envisioned how he wanted to approach the Board.
I had some initial concerns about how Hampton’s inclusion might destabilize the division of labor settled on by Pirmohamed, Dow, and Rytting, attorneys and their egos being what they are. I needn’t have worried, though; he worked well with everyone right from the start – and, I think, secretly, both Dow and Rytting were pleased to get what they saw as a pointless clemency effort off their backs. In an instance of selflessness that is almost unheard of in the legal community, Rytting removed his name as co-counsel from the clemency petition, so Hampton could receive enough money from the State to justify his time. Hampton also worked well with my core supporters, including Dina Milito, the curator and editor of MB6. To her, he gave the responsibility of coordinating the campaign of emails, letters and phone calls we were going to ask MB6’s readership to aim at the Board and the Governor’s office. Everyone appreciated having been given tasks to complete, instead of merely sitting around waiting on an incomprehensible court process to run its inevitable course. Hampton brought an energy and positivity that was greatly appreciated.
Perhaps most importantly, Hampton had a rolodex of media connections that went far beyond my own. He understood implicitly that clemency is an almost purely political mechanism: if the Governor is able to make the calculation that he would gain more political capital from pretending to be merciful over being a stern advocate for right-wing justice, the inmate wins. On some level, I knew this was the case, but I think I always believed that there was some kind of moral core to this process, that everything wasn’t just optics, or so dependent upon whether Dan Patrick, Texas’ uber-conservative lieutenant governor, was going to challenge Governor Abbott from the right in November. (He didn’t, and I’m alive because of it. Had Patrick run, Abbott’s options in my case would have been entirely foreclosed.) I think all of my family and friends became exhausted with trying to keep track of the ideological currents in Austin, to the point that when I try to bring up politics in conversations today, you can see their eyes unfocus a little.
Since Hampton is based out of Austin, he was able to hand deliver an initial draft of my clemency petition to the Board’s offices. The lawyers for the Board are amazingly pedantic about how certain subjects are worded. For instance, one cannot ask that one’s “death sentence be commuted to life in prison”. Instead, one must request that one’s “death sentence be commuted to a lesser sentence”, even though a life sentence is the only statutory alternative to death. Hampton knew this from his past experiences with the Board, so our initial draft was littered with these apparent faux pas, with the theory being that this would require someone from their staff to contact us. If this happened, the reasoning went, we might be able to gather some meaningful intelligence about where the winds were blowing behind some otherwise impregnable walls.
Amazingly, this worked out even better in practice than it had appeared on the drawing board. During Hampton’s first visit to the Board’s offices, a staff attorney took one look at our draft petition and exclaimed, “Woah, Whitaker!” He seemed to possess an inordinate (read: creepy) amount of information about my case. Of all the parole officers and attorneys and former staff we contacted to build our “opposition research file” on the Board’s members, no one gave us more timely information on how the individual members were processing my petition than this man. Naturally, in response to this, errors in each subsequent draft multiplied like mushrooms after a downpour, giving us weekly (and sometimes daily) contact with this gentleman. I don’t know what his true beliefs or motivations were about the ultimate outcome of my case; all I can say is that he treated us very fairly, giving us the same access to information that the Fort Bend attorneys were getting. I know of no other case about which this can be said.
Once the initial draft was submitted, Hampton began approaching the media. Within days, fair to marginally friendly articles began to appear in the Austin American-Statesman and a number of criminal justice-related blogs. A few days after that, all of the major Texas newspapers had run articles and op-eds in favor of clemency. Then, the Associated Press got its hands on the story, and articles began to appear in small, local newspapers across the country and in Europe. We still hadn’t penetrated the barrier separating us from the apex predators of the media ecosystem, but we were getting closer.
Thanks to our newfound leak inside the Board’s offices, we knew that the entire machinery was aware of the media blitz. Gears that hadn’t been activated in years began to turn, flaking off layers of rust and dust. After years of denying inmates and their half-hearted petitions, someone was submitting a serious proposal, and the Board was going to have to respond publicly in a way that they were not accustomed to. This included an early request for a hearing between the Board and my family. Although statute allows for such hearings to take place following specific applications, one had not been granted since Kenneth Foster’s petition in 2007 – the last man to have his death sentence commuted, a point which is not a coincidence, I think. No one on the current Board had ever attended such a hearing, and we were told that procedural manuals had to be located that had not been opened in more than a decade. The Board members never met in-person to discuss petitions. Instead, they receive a summary of the case provided by the clemency division and opinions from the Office of General Counsel, and then fax (yes, you read that correctly) their votes in at a specific time a few days before an execution. (Here you can see an example of what this form looks like, from years ago when the Board consisted of fifteen members instead of the current seven.) The reason for this is actually very simple: so long as the Board members do not meet or discuss cases, the Open Records Act does not apply. Since we were so rudely demanding a hearing publicly – and since the suddenly interested media was questioning them about this – they were being forced into a corner. This obviously risked turning the Board against us, but we felt strongly that this hearing was necessary.
The Board’s response to our request was initially unnerving. Under statute, we shouldn’t have had to file my final petition until the 1st of February. However, the Board’s lawyers asked that we submit it by the 10th of January, giving us less than two weeks to complete the final draft. My worry was that the State had decided it needed extra time to coordinate with Fort Bend, so they could deny my petition in as polished a manner as possible. Our mole insisted, however, this scheduling was necessary “to ensure that Whitaker’s arguments were heard by everyone”. If this required six weeks instead of three, I wondered at the time, why wasn’t six granted to everyone? The whole process felt entirely ad-hoc to me, not the sort of thing that ought to be used to kill someone.
The final draft of my petition was a thoroughly strange document. It was, from start to finish, an entirely religious argument favoring my father’s right to define what justice meant to him over the State’s obvious drive for vengeance. It flipped the whole “Texas is a victims’ rights paradise” position around on those who usually deployed it in favor of capital punishment, and blasted Fort Bend for thinking that they had the right to stomp on my father’s wishes. It was perfect. It also made me incredibly uncomfortable on multiple levels. The petition wasn’t hypocritical; nowhere did it claim that I believed in the metaphysics it espoused, or the Old Testament stories it cited. The argument was a conversation between believers: my father and the Board. All three of my attorneys – including the one who had written the document in question – are atheists. I am certainly closer to their camp in most respects than to the one represented in the petition. It felt deeply wrong to have my continued existence debated over in these openly theistic terms. It felt disingenuous, even though I couldn’t point to a single issue about which we’d lied. I wanted to talk about my redemption in terms that were relevant to the method I’d actually used to change, but this would have amounted to suicide. The idiom demanded by the situation was that of a series of Levantine folktales, so we used it. I have been known to grin when I hear Coasters talk about the separation of church and state, but I wasn’t grinning now. This was an ecclesiastical court, and if we didn’t talk their talk, I was dead. I cannot resist saying simply, categorically: it shouldn’t be this way.
It shouldn’t be this way.
My personal despondency over this was drowned out by the fact that, privately, at least, the Board was supposedly very pleased with the direction we had taken. One of the members had promised to travel to Livingston to meet with me in February, so we settled in for a wait. Meanwhile, my dad kept popping up on the television and the radio. Unlike the nervous and unsure (and uncoached) person who testified at my trial, this Kent was confident, sympathetic, and well-spoken. I was crazy proud of him. All of my friends on the Row were impressed, too. I kept hearing people shout over to me from other sections: “Yo, Whitaker, your pops is on Channel 11 again!” It got to be something of a joke: “Damn, homie, you going to eat everything on the table, or can we have some scraps?” Or: “How much would your dad charge to be my media liaison?” I felt a little like I’d stepped through the quantum foam and came out a few stops down the multiverse highway. I don’t exactly know why some of the very same media organizations that had completely ignored my dad’s pleas in 2007 were suddenly sympathetic. I know the popularity of the death penalty had fallen in that time, and I know that Fort Bend had undergone a rapid shift towards the center politically. Whatever the reason, this time around, the media was eating out of his hand. On more than one occasion during our visits at Polunsky, I detected something of a secret smile ghost across his face when he spoke about the media dancing to his tune. It felt like justice, during a time when that term had otherwise been leached of all meaning.
It was still an open question as to whether any of this was going to work. Still, knowing that there was a plan, and a team working that plan, filled me with hope, a subject the guys spoke often of on the Row. Almost everyone there understood that there are at least two kinds of hope: one that is keyed to a reasonable set of outcomes, and one that drifts off into the world of fantasy. Desperation had a nasty tendency of making the latter masquerade progressively as the former, and the closer one got to the end, the more careful one had to be about this confusion. Of all the guys I shared the zero cells with, it seemed to me that I had the best odds at a positive outcome, maybe as high as a coin toss. This filled me with a sense of guilt, of unfairness, sort of like (though on a different scale entirely) how I felt when I learned years ago that I was making significantly more money than the other supervisors of similar rank doing the exact same job. When Rod spoke about his investigation of the medical examiner in his case, Rayford the power of prayer, or, when he actually spoke of them, T-Bone’s meetings with the Texas Rangers, I found myself mostly incapable of joining in the conversation, afraid that I would somehow signal that I felt like all of that seemed like grasping at straws. Should one be honest with people when that very honesty is likely to produce terror? Perhaps someone is capable of arguing that position in the affirmative, but that person will not be me.
*****
Dead meat attracts vultures. Within days of my banishment to Deathwatch, a steady stream of form letters, manifestos, declarations, prophecies, and cheap fliers began arriving at mail call, all of a purportedly religious nature. Some bore threats of eternal damnation, others described magical trips to Space Disneyland, but only if certain preconditions were met (and there seemed to be a great deal of variance on exactly what was required of each petitioner). All of the major monotheisms were well-represented, some described iterations of a God that I was familiar with, while others showcased this same deity refracted through bent, funhouse mirrors until He/She/It was entirely unrecognizable. One was printed on broadsheet-quality paper and always included the head minister of this organization in grainy photographs from the 1970s wearing huge, shaded sunglasses and wide collars; its “articles” usually had doubtful titles like “The Mark of the Beast Found by Scientists Engravened [sic] on Corneas of Smartphone Users! A Global Conspiracy!” What all of these vendors of epistemological Ponzi schemes had in common was a desperate sort of spiritual opportunism that sought to take advantage of the fear they assumed was gripping us. I was not alone in wondering why, if the ultimate destination of our souls were of such paramount importance, these people waited until we had received publicly announced execution dates to contact us. It was something that most of us laughed about, how we’d never been so popular in our entire lives. I suppose some of these people meant well, though I tend to agree with the late and much missed Christopher Hitchens that “those who offer false consolation are false friends”.
Without question, the most amusing and unintentionally comical (I think it was unintentional, at any rate) of this lot came to me via eastern Oregon. The so-called “Princess of Facets” flier was printed on a cone-damaging shade of smoldering fuchsia cardstock. The header consisted of a graphic of a starfield, several constellations of which were helpfully outlined for the astrologically retarded. I was actually in A-Section’s dayroom when I received this at mail call, having a conversation with Rod and Rayford. The look on my face as I scrolled my way through this dense forest of new-age buffoonery must have been odd, because when I looked up both of my friends were grinning at me.
“What?” I asked defensively.
“You tell us. You the one with all the colorful mail,” Rayford shot back.
“So…” I struggled with where to begin my exegesis. “Uh… apparently each of us is ‘attuned’ to a specific cardinal number. This ‘seer’ – her word – advises me to ‘investigate’ my life. If I do so, I will find that this certain number will have always been present at important junctures in my life. Once identified, I’m supposed to pick a geometric shape with that specific number of sides. Then, if I pray to this shape, it will tell me about my fate. Erm, sorry, ‘fates’, plural. There’s some stuff in here about using crystals to focus my psychic fields, but I’m pretty sure that none of you have bothered to pay a guard a couple of hundred bucks to smuggle in some illicit quartz.”
“Come to find Captain Logic is going all flower-power on us at the end,” Batman butted in. I ignored him.
“What would happen if your magic number ended up being zero?” Rod asked, that particular digit having assumed a new and powerful meaning in our lives. “Kind of hard to imagine a zero-sided shape.”
“About as difficult as the behemoth you would have to conceptualize if your number was like 17 million or something,” Batman added, constitutionally incapable of staying ignored.
“I think my number is two,” I decided at last, after listening to the guys debate the finer points of West Coast Numerology.
“How do you figure?” Rod asked.
“My date is on February the 22nd, so 2.22.” I held up a finger. “My TDCJ number is 522,” I added, leaving off the triple-9 prefix that all death sentenced prisoners share, while now holding up two fingers. “And, I’m assigned to 10-Cell. The digits ‘1-0’ are how you express the base-10 number two in binary,” I explained, as I counted off a third finger.
The theme from The Twilight Zone began emanating from Batman’s cell, and we all started laughing. I crumpled the flier up into a ball and tossed it onto the run. “If I ever admit to trying to meditate on straight lines, save the State some money and just kill me yourself.”
It became something of an inside joke for the denizens of A-Section.
T-Bone: “Hey, Thomas, I just realized: we both have two ears and two eyes!”
Tabler: “Oh, snap! And two hands!”
It really wasn’t very funny, but as the days of January evaporated at an alarming rate, we had to get our kicks where we could find them.
In the end, I never found out exactly how Shore was attempting to obtain a second stay of execution from the police. There were times when he seemed philosophical about his end, telling Batman that he was deeply sorry for some of the things he’d done, and how he was prepared to meet God. But then he would come back from a four- or six-hour session with the investigators, and would be aglow with a sort of manic energy stemming from the game of cat-and-mouse he was playing with them. I heard him tell Batman one time that the Houston Police Department detectives had been asking him to recall a bra color of what I can only assume belonged to a victim in an unsolved homicide. “Like I would remember something like that,” he remarked snidely, the strong impression being that he was responsible for the death. I have no idea if this was mere posturing, or if he was serious – you just never knew with him. Either way, it was comments like these that demolished any natural desire I might have had to offer some type of companionship as his date neared. About the only substantive conversation we had – if that is even how to describe it – was about the hard rock and metal radio show that we both listened to each week. I had nominated A Perfect Circle’s song, “The Doomed”, as the anthem of Trump’s presidency, with its acidic condemnation of the values I felt the President embodied (“Blessed are the fornicates, may we bend down to be their whores/ Blessed are the rich, may we labor, deliver them more/ Blessed are the envious, bless the slothful, the wrathful, the vain/ Blessed are the gluttonous, may they feast us to famine and war”). He concurred, and I think tried to make peace with my known political positions by adding that any song that was capable of causing the pundits on Fox to go into apoplectic seizures was surely worthy of some kind of award.
He did manage to have the Texas Rangers set up a very special sort of visit for him the day before his execution. The woman he wanted to see had been barred from all TDCJ facilities since 2014, when she was accused of stalking the wife of another serial killer she was trying to romance. I don’t know what Shore promised the Rangers, but he convinced them to allow this lady in for a nine-hour visit. He came back beaming, claiming that he had received some news that made his execution doubtful. Along with everyone else, I wished him the best.
Whatever my feelings for Shore, he was treated quite harshly the following morning. In every other execution I’d ever heard of, the condemned is taken from their cell directly to their last visits a few minutes before 8am. This morning, a pack of at least eight men in suits (cops, presumably, based on the functional nature of their shoes and the aura of ‘don’t-fuck-with-me’ they exuded) were accompanied to the section by the Major and more correctional officers than I could count. Shore was told he was going to the dayroom. When he asked why he had to do that, the Major told him angrily that he didn’t have a choice; he was going the easy way or the hard way. Once placed into the cage of the dayroom, everyone watched him do the “Shakedown Two-Step”: an awkward exposing of all of one’s body parts, seen with multiple sets of eyeballs from multiple angles.
You can generally tell how beloved a person was by the chorus of convicts yelling their goodbyes to the condemned as they walk off the pod for the last time. When they came to get T-Bone, I didn’t hear a single person say a word.
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