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How depressing it is to learn that there are guides to almost everything imaginable today from college and open-heart surgery to bass fishing, Disneyland, prostitution, funerals, dog training, oil and gas deals, household staffing, tandem cycling and even the Yellow Pages, but none to what is arguably the most dire issue ever to come down life’s bumpy road. There is a primer to negotiating the U.S. Customs system (cleverly titled Howdy, Duty!) but no manual for navigating the byzantine criminal justice system-a handbook on venture capital, but none, so far as I can tell, on capital punishment, advice on speedtraps, but not on deathtraps. And yet, could any topic be more worthy of practical guidance than the question of what to do when faced with the ultimate penalty?
Because one clearly cannot engage in self-help without first having a self to help, the following reference work, unlike other specimens of this genre, is-forgive the immodesty-one that you simply cannot live without.
Many readers have no doubt encountered the troubling stories emanating from Texas about a court-appointed lawyer sleeping through a capital trial. In deference to the American bar, we must be careful to get our facts straight. Yes, it is true that the attorney in question said that he liked to proceed through trials like “greased lightning” without bothering to take “a lot of notes.” Yes, he also admitted to the “habit” of shutting his eyes and leaning forward while concentrating on legal matters. And yes, various jurors and other courtroom personnel present at one trial somehow understood this tendency as a sign of slumber.
In such situations, clients might try holding a mirror beneath counsel’s nose and look for any evidence of moisture. If even the slightest cloud appears, rest assured that you have landed adequate representation, as once explained by an official of a southern trial lawyers association. If climatic conditions in the courtroom interfere with this examination, proceed immediately to the so-called pulse test, the standard for counsel in the Lone Star state, as described by one knowledgeable defense attorney. And if that test fails, you have no choice but to file court papers alleging narcoleptic incompetence, as did one dissatisfied Texas customer, a claim, incidentally, that was recently upheld on appeal. We can now all sleep better.
Thus refreshed, the capitally accused is at liberty to focus on some of the finer points of representation. For example, is it better to put your life in the hands of a utilities lawyer or a counselor who gave a bar, known as Kelly’s Keg, as his place of business? Few would probably be inclined toward a real estate attorney, who in one death penalty case offered an eighty-seven word closing argument that ended with Bible verse but no mention of mercy. The open-minded, meanwhile, would do well not to rule out a convicted felon sentenced to community service and ordered to fulfill it by representing defendants too poor to afford counsel on their own.
Admittedly, it is doubtful that anyone would seek out a lawyer who, when asked to name some criminal cases decided by any court in this country, responded with Miranda and Dred Scott, the latter of course not being a criminal case at all. Given such a choice, the discriminating capital defendant might even welcome a sole practitioner who had never before tried a capital matter, or a drug addict suffering from emotional and marital problems. Then again, only a consummate masochist would submit to representation by an advocate who, during the penalty phase of one capital trial, admitted to the judge, “I’m at a loss. I really don’t know what to do in this type of proceeding.”
Understand that capital punishment, as the name suggests, really is about capital, as in money, and if your lawyer fails to make an opening statement you might inquire as to whether he or she is actually being paid a living wage for performing-or in this case not performing-such work. Fittingly, capitation (from the Latin for head) rules the world of attorney’s fees. States have customarily placed limits on the total amount they will disburse in a death penalty case, saddling some counselors with minimum-wage work, a state of affairs that, depending on the importance your attorney attaches to the almighty dollar, can at times lead to decapitation or something equally unpleasant.
Although money is not everything, at these rates, lawyers, understandably, are somewhat reluctant to take on new clients. One Georgia attorney went so far as to say that he would “rather take a whipping” or even a dose of laxative than a new capital matter. In Kentucky, the limit on fees once dropped so low that no one answered the call to duty, prompting a judge to suggest that the local indigent representation program raise funds for a certain capital defendant by sponsoring a cruise down the Ohio River. The exposure of such shabby treatment has led to a modicum of reform. But it goes without saying that it is still better if you can afford to hire your own defense counsel, even if you must stoop to organizing a bingo tournament or some other game of chance which, if nothing else, will offer a dry run for trial.
In the Courtroom
With your lawyer at your side, you are ready for your day in court. In the best case scenario, you would want people on the jury with at least a doubt or two about whether it is right for the state to make off with your life. Regrettably, the law has not made it easy for you. All juries in capital cases are “death qualified.” This means exactly what it says, that the people on the jury are fit to award you a sentence of death because they are believers in the death penalty. Indeed, the prosecutor and judge are legally bound to see to it that no one squeamish is impaneled. Logic dictates that a person who rejects capital punishment obviously cannot take part in something called a capital trial.
At sentencing, a good rule of thumb is to prevail on your attorney to provide at least twenty words of argument for every year you have lived (excepting if you suffer from a self-esteem problem then deduct two or three words per annum). The reason for this is that the enormity of the sentencing phase has been known to leave even talented members of the bar at a loss for words, the profession’s reputation for long-windedness notwithstanding. Consider this closing statement from the death penalty case of Jesus Romero: Attorney: Ladies and Gentlemen, I appreciate the time you took deliberating and the thought you put into this. I’m going to be extremely brief. I have a reputation for not being brief. Jesse, stand up. Jesse? Romero: Sir? Attorney: Stand up. You are an extremely intelligent jury. You’ve got that man’s life in your hands. You can take it or not. That’s all I have to say.
On the other hand, counselors willing to expend a bit more breath have been able to spare the lives of even the most depraved criminals (no, this does not mean you). An approach favored by attorneys in the know is to show that life in prison is punishment enough and perhaps even a worse fate than death. This is a valid strategy but consideration must be given to how the jury will react. One attorney let it be known that the defendant, apparently some kind of barbecue maven, would not be able to attend such affairs while in prison. Instead of leaving it at that, however, the lawyer proceeded to recount in excruciating detail precisely what his client would be missing, right down to his choice of mustard-niceties that at least one juror called “stupid.”
Finally, it never helps during the penalty stage to have an advocate who is overly impressed with the magnitude of your crime. One truly feels for those defendants whose lawyers harp on the heinous, letting show, in front of the jury, no less, their true feelings about their clientele. To think that one attorney, while his client’s life hung in the balance, referred to what he and his co-defendant did as comparable to “sharks feeding in the ocean in a frenzy” is enough to give one goose pimples, if not hives or something worse.
A Word on Judges
Perhaps at this point it would be worthwhile to interject a word or two about the character of the American judiciary. Most judges, of course, treat capital cases with the gravity they justly deserve. Rare is the justice who lets his or her own personal feelings about the death penalty shine through and, in any case, should this happen, the knowledgeable capital defendant knows not to make too much of a fuss. One Florida judge, after the 1972 U.S. Supreme Court decision that ruled the death penalty (as then administered) unconstitutional, made clear his hard feelings by allegedly casting a noose into a tree. That the tree happened to be situated in front of a courthouse was, to say the least, unfortunate. This kind of anecdote is of course the stuff of urban legend and I believe one can rightly still feel comfortable appearing before justices of this character.
Judges who show up at sentencing wearing brass knuckles, as one southerner did, are also, in all likelihood, fair-minded enough to capital defendants. Those who claim to be doing “God’s work” in carrying out a death sentence, as well as those who schedule executions on important holidays or a trusted clerk’s birthday are somewhat more suspect but, again, our system of criminal justice ought to be resilient enough to accommodate differences in taste and style and still deliver on the promise of a fair trial. Much has also been made of a Texas judge who signs his execution warrants with a little happy face. If it comes to this, simply ask yourself: How should the Bench approach the task of conveying such news? Is it not better to keep one’s chin up?
Some Good News
Perhaps never before in American history has the process of execution been more efficient and rational. The evidence is apparent everywhere one turns. Consider the barbaric practice of electrocution. This bizarre Americanism has long remained the butt of jokes. Even a Louisiana warden recognized the absurdity of this form of departure, displaying on his desk a miniature version of the notorious hot seat, arranged to deliver a brief shock on contact. Hilarious. If even a sliver of doubt as to the utter ridiculousness of this method remained, it was safely disposed of when the state of Florida electrocuted a colander (yes, kitchenware) in an effort, believe it or not, to test the safety of its chair.
Now to encounter this brutal form of torture-for let us be honest-you must journey to such out of the way places as Nebraska, which has not executed someone in several years, or Alabama, which is presently considering mothballing old Yellow Mama, the term of endearment assigned this horrendous device. Shipped off to museums or posted on online auctions (“Just in time for the holidays . . . the state of Tennessee’s actual electric chair”), Old Sparky is now more likely to be encountered in the home family room than in prison.
To the glee of inmates and corrections officials both, the barbarous chair has given way to the infinitely more civilized medicinal method, in which reclining inmates peacefully drift off to sleep. But like much else that is positive about American society, it was a long hard struggle to reach this point. Some objected to the new and improved approach on grounds that it amounted to little more than mollycoddling. T-shirts popped up bearing the locution “Needles Are For Sissies,” as if death row was crammed full of pantywaists.
From the other direction, meanwhile, came cries that injection, far from being mama’s boy’s preferred means of dispatch, is instead a form of cruel and unusual punishment. A former U.S. president, and a knowledgeable authority on putting animals of all kinds to sleep, once challenged this assertion, but the stubbornly skeptical might care to consult the following firsthand account filed by a New York assemblyman. “As far as I could tell, it was very painless and over very quickly.” What more could one ask?
In fact, there is more. For those who are not late-night people, the death penalty, with its midnight schedule, has always been a grind. But here too, the forces of rationalization and efficiency have been brought to bear with great success. Arizona, for example, has made the switch from the stroke of twelve to the far more civilized hour of three o’clock in the afternoon. Such business-hour executions have benefited not just the early-to-bed condemned, but judges and staff as well. Recalling the “late-night headaches” involved in one midnight affair, one justice spoke of “frantically running down to an all-night copy place, getting reams of paper from the fax machine.” Through it all, he kept saying to himself, “This is madness” and “Why do we do this?” Why, indeed, when a simple scheduling decision would alleviate virtually all of the hardship.
The Final Course
Mindful of these improvements, those condemned to die can now focus on other more pressing aspects of this ritual, such as the catering. A well-chosen meal can greatly enhance the meaning of this important event in your life. In this regard, Last Suppers: Famous Final Meals from Death Row by Ty Treadwell and Michelle Vernon is an indispensable resource. At the cost, no doubt, of much time and personal expense (for, frankly, who but the condemned would possibly be interested in purchasing a book on death-row dining), the authors have compiled what is clearly the foremost guide to capital fare, replete with advice on which states offer the best choice of cuisine (Illinois and Indiana), not to mention helpful recipe suggestions. Indeed, so useful and informative this guide has been found to be that word has it that the authors are contemplating a sequel titled “Second Helpings of Last Suppers.”
Be polite. Imagine the hard feelings among the staff in one Oklahoma prison after having put together a feast consisting of steamed mussels, a cheeseburger, and spaghetti and meatballs, only to hear the condemned man complain, in his last statement no less, that he had, in fact, ordered SpaghettiOs, not spaghetti.
Capitalize on knowing exactly when you will meet your maker and use this information to your advantage by carefully crafting your last words. Do not let the demonstrators outside the prison walls shouting or otherwise bearing tasteless slogans such as “We Want the Body,” “Teddy [substitute your name here] is Deady,” or “For All You Do This Shot’s for You,” cause you to lose your cool and employ bad language or gesture obscenely. Instead, choose your departing phraseology to suit your personality; this is not a one-size-fits-all occasion. By the same token, set aside concerns regarding plagiarism. If a perusal of Edward Le Comte’s well-regarded Dictionary of Last Words, for instance, should turn up something particularly apt, by all means go ahead and borrow it.
You do, however, want to be sincere and convincing. “I’m innocent, innocent,” while possibly even true, is unlikely to persuade anyone. “Adios amigos” has the virtue of simplicity to recommend it, but is unlikely to earn you an entry in the newly revised Dictionary of Last Words. “Just a moment, Mr. Executioner! Help! Help!” while clever, is a tad dated now that the esteemed hangman has retired to make way for anonymous button-pushing prison staff. “Kill me, or else you are a murderer,” though not without merit, is overly intellectual and likely to confuse witnesses and prison officials alike. “Let’s do it” is legendary and if you have a thing for speed and efficiency-as does, apparently, a certain chief justice of the U.S. Supreme Court who once said in disgust over the snail’s pace of the entire capital punishment process, “Let’s get on with it”-then perhaps your search is over.
My own personal favorite is “I only regret that I have but one life to lose for my country.” For those words nicely capture the true spirit of the occasion, founded, above all, on the need to deter others from revisiting your fate. Picture yourself as a foot soldier in the war for decorum. True, no solid research as yet suggests that capital punishment has a deterrent effect on crime. But commonsense suggests otherwise. One prosecutor put it nicely when he explained, “I was having a fight with one of my ex-wives, and I found myself choking her, and I saw her eyes start to pop out, and suddenly off to the left or the right I saw the electric chair. It deterred me.” There you have it. Knowing that your life has gone to serve a just and higher cause will ease your passage into the Great Beyond. Go then, your fast-food justice is being served.
TED STEINBERG teaches history and law at Case Western Reserve University and is the author of DOWN TO EARTH: NATURE’S ROLE IN AMERICAN HISTORY and ACTS OF GOD: THE UNNATURAL HISTORY OF NATURAL DISASTER IN AMERICA.
He can be reached at: firstname.lastname@example.org