As I said, the route to death row for some murderers is straight and swift. In fact, for some it’s a veritable speedway. Several of the murderers Jonathan and I have seen were advised by their ill-paid, ill-motivated attorneys, “Plead guilty and throw yourself on the mercy of the court.” Big mistake. Courts in the South are not noted for their mercy.
Over the past twenty-five years, Jonathan and I have evaluated dozens of murderers, some on death row, some off. From a psychiatric or neurologic perspective, we can’t tell the difference. I have pondered why it is that one man commits a grotesque homicide and is electrocuted, and another, who commits an equally grizzly murder, is not. Studies show that black people who kill white people are in big trouble. Even white people who kill white people have their problems. But that doesn’t seem to explain it all—not by a long shot. I think a lot more has to do with lawyers.
I have a theory. With a little help from that tweedy statistician in the back row of the scientific symposium, I could probably find a mathematical formula to prove it. Forget about motive—that doesn’t always seem to matter. I am also pretty sure that the mental health of the perpetrator does not make a difference. Most of the time nobody even thinks about that, certainly not the murderers. The killers Jonathan and I have met usually would rather be thought bad than nuts. It pretty much boils down to the lawyers.
The mathematical formula for who does and doesn’t get sentenced to death would go something like this: Multiply the number of hours spent by the defense lawyer preparing for trial by the number of previous capital cases he or she has tried and won. Take that product and multiply it by the number of other people, such as investigators, helping out in the case. These calculations will undoubtedly lead to the finding of a statistically significant difference between murderers on death row and murderers who spend their remaining days tilling the fields or working in the shops of the very same penitentiaries in which their less fortunate peers are executed. If, in some cases, you throw into the equation some measure of the difference in motivation between the trial attorney and the prosecutor, you will wind up with p values (i.e., significance values) that would knock the socks off any statistician.
I am not talking about public defenders. They are dedicated; they certainly don’t work for the money. But many—probably most—of the murderers Jonathan and I have seen were not represented at trial by public defenders. Their representation tended to be local, private attorneys. Granted, there exist a few talented, motivated, experienced, successful private defense attorneys willing to give their all, pro bono, to the representation of an indigent client here and there. But more often, impoverished defendants must settle for the skills of very junior attorneys who are just getting started or for older attorneys whose practices are not flourishing and who are looking to augment their unstable incomes with the paltry fees paid by the court. In a couple of our cases, the court-appointed lawyers themselves were under indictment for felonies. It can’t be easy to give your attention to the problems of an indigent murderer when your own future to practice law is up for grabs. In one of our cases, the trial attorney was disbarred shortly after his client was sentenced to death. That lawyer could not assist himself, much less his client.
In short, few of the private attorneys who take on the representation of indigent murderers are William Kunstlers or Alan Dershowitzes or Gerry Spences. From time to time you come across one—they are exceptions. Most of the private attorneys initially assigned to our death row cases accepted the $25 to $40 an hour offered by the court because they were having a little trouble attracting a paying clientele. Think of it this way: The Gottis of this world, not to mention the Von Bulows and Simpsons, do not select their lawyers by twirling the judge’s Rolodex. As I reconsider my formula, it is obvious that it is much too complicated. Its predictive value probably would be just as accurate if years of experience, success rates, and hours and numbers of assistants devoted to the preparation of a case were simply converted to dollars.
Now for the exceptions, and there are many. Jonathan and I have had the pleasure of working with some amazingly skillful and devoted court-appointed attorneys. They were smart, well trained, experienced, and willing to put in the necessary hours. In these cases, everything I have said about time and motivation did not apply; these factors could be thrown out of the death row equation entirely. The money factor could not. These fine court-appointed attorneys had to scrounge for every dollar they needed to prepare an adequate defense. They had to beg for funds for investigators and medical experts. They were obliged to fight for every EEG, X ray, CAT scan, or MRI they got. Travel funds to seek out and interview relatives in other states were usually nonexistent.
I remember one case I worked on in Seattle in which funds played an interesting role. I was evaluating a man, Roger, who had hacked to death a woman, her small child, and their sheepdog. He did not deny the murders—he just didn’t remember them. He also did not remember where, when, or how he had acquired the elaborate crisscross of long scars that covered his back. In truth, he recalled almost nothing about his childhood. If I wanted to learn anything about Roger’s past, I would have to talk with his brothers.
After some pretty elaborate detective work, Roger’s devoted court-appointed attorney managed to locate all three of his brothers. She also squeezed enough money from the court to transport them to meet with me at a motel near the prison where Roger was incarcerated. The plan, as I recall, was to interview the three brothers in the morning, then that afternoon have a meeting at the prison together with Roger. They would return home that evening. Perhaps when we all met together, the brothers would be able to provide clues to the origin of Roger’s scarred flesh. Their presence might also jog Roger’s memory. But as is often the case in this work, my meeting with the brothers got started late. Meetings with relatives of murderers are notoriously unpredictable. (Once, in West Virginia, I had to wait until midnight to start an interview with the mother of a teenaged murderer. The exhausted mother and I sat opposite each other on two queen-size beds in my $16-a-night motel room and talked until neither of us could keep our eyes open any longer.)
Last year Jonathan and I found ourselves in Louisiana, at the home of an adolescent accused of murder. We began interviewing parents, siblings, aunts, uncles, cousins, and grandparents at about ten at night and did not leave until two or three in the morning. The boy’s lawyer had managed to capture this memory bank and get everyone in one place at one time; we were damned if we would push any interviews into the next day and risk losing a single cousin. I had learned about disappearing relatives the hard way. Roger’s brothers taught me the risks of postponements.
I hear a lot of pretty awful stuff—it’s part of the work. Sometimes, when my students are upset by information that does not faze me, I worry that I have become hardened. Stories that a decade ago would have shaken me today seem commonplace. I am unmoved. But, in the course of my interview with Roger’s three brothers, during a break in the interview, a break that I requested, I went into the bathroom and wept. I have never done this before or since.
They were a motley crew, Roger’s three brothers. All had histories of alcoholism, but two—David and Wesley—thanks to A.A., considered themselves recovered. The third—Albert—admitted that he still had a pretty serious problem. The three brothers, the attorney, and I sat around a small conference table in a meeting room at the motel where I was staying. I think it was a Holiday Inn. It was definitely a step up from Starke’s Econo Lodge and two steps up from my $16 digs in West Virginia. I came to the point quickly: I had found dozens of long, ugly scars on Roger’s back. Could any of the brothers tell me how they had got there?
Blank stares. I waited.
The first to speak was Wesley, the one I thought of as the “Preppy.” He was the youngest, the best looking; he wore a shirt, striped tie, gray slacks, and a blazer (my husband’s uniform). He boasted of being free of drugs and alcohol for years, and he held a responsible white-collar job in a medium-size business. In response to my question, he shook his head from side to side. “No, I don’t remember any abuse, if that’s what you’re getting at.”
I fixed my gaze on Albert, the brother who admitted he was still an alcoholic. His hands trembled. What did he remember of his childhood? Not very much. “But I don’t remember much of anything,” he admitted.
I turned now to David, the eldest. He was breathing with difficulty and had an oxygen tank at his side. He had been a heavy smoker and was being treated for lung disease. I tried, therefore, not to read too much into the difficulty he was experiencing catching his breath. We all stared at him—the lawyer, the other two brothers, and I—and we waited. The room was silent but for his labored breathing. Then, to my amazement, I watched as a tear filled the lower lid of his right eye, splashed over, and trickled down his cheek.
“Don’t you remember?” David asked. The others looked blank. Whatever had moved the eldest brother to tears was a mystery to the younger two.
“Don’t you remember Hyram?” Albert, the alcoholic, seemed to be struggling to remember. His brows furrowed. Preppy stiffened and buttoned the top button of his blazer. Now tears were running down both of David’s cheeks as he fixed his gaze on his buttoned-up younger sibling. “Hyram. You must remember him … what he did to us, especially to you.” Preppy showed no sign of recognition; he looked nonplussed. But a squint, a twist of the mouth, a grimace indicated that Albert was beginning to remember. Finally Albert spoke. His voice was low and a bit hoarse.
“I remember Hyram.”
Hyram, I learned, was a sadistic older foster brother. Because of their own parents’ cruelty and neglect, all four brothers had been taken out of their home. A well-meaning social worker had placed them on a farm in the country, in the care of a foster mother, Mother Carry, and her twenty-year-old son, Hyram. There, in what looked like a wholesome atmosphere, the social worker assumed the four brothers would be safe and happy. Appearances were deceiving. Mother Carry turned out to have rigid religious convictions and a temper to match. She was determined to follow her Bible and refrain from sparing the rod. Roger and Preppy got the worst of it. When the spirit moved her, Mother Carry would tie them to a fence-post and wallop them unmercifully with a leather strap. I had heard this kind of story many times before and was neither surprised nor, I regret to say, moved by it. Tales of beatings are a dime a dozen in the histories of murderers. They make me sad, but they do not make me weep.
The story was not over. David struggled to take in enough oxygen to continue. “You two remember what Hyram made us do?”
Preppy as usual looked blank, but Albert was showing a flicker of recognition. Something in David’s voice fired up a long-dormant set of dendrites, triggered a memory. Albert spoke. “I remember the cattle prod.” He turned toward David, who was now silently weeping and wheezing. A picture was slowly forming in Albert’s brain. “It was electric. I remember how he would shove it up the ass of the calves in the barn, then turn it on and watch them jump. I remember how he made us shove it up their ass.” I cringed and tightened my own buttocks.
David had not finished the story. “Do you remember what he did to us?” wheezed the eldest. A slow duet of pain commenced as the two brothers, David and Albert, took turns describing the episodes of repeated sodomy that all four brothers had endured during the years when their safekeeping was entrusted to Hyram and Mother Carry. Never before had anyone spoken of the farm and its terrible secrets. Hyram had enforced silence, threatening to do to the brothers what he did to the calves if they told. Afterwards it seemed better to forget. This was the first time during an interview I wished that the reminiscences would end; I had heard enough. But the reservoir had been tapped and there was no stopping it. The grotesque events on the farm bubbled forth, David jostling Albert’s memory while Preppy looked on in a trance.
“Remember the sheep?” wheezed David.
“Yes, I remember.”
Then, as Preppy stared into the distance and tuned out, his siblings recalled the castration of the sheep. David described the way Hyram, carrying the electric prod, would herd all four brothers to the field. As they stood and watched, Hyram would grab a young lamb, secure its limbs, and bite off its testicles. Then he made each of them do it.
Preppy could stand it no longer. He interrupted, “That may have happened to you. It never happened to me. I never had to do things like that.” The eldest turned to his blazered brother. The tears on his cheeks had dried. With contempt, not pity, he spat out the words, “Sure you didn’t. You couldn’t stand doing it. When Hyram brought you out there, when you watched him, when you watched us, you threw up. That’s what you did. You couldn’t do it.” Then from a well of pain, compassion, and contempt came the words “I did it for you.” Silence. David continued. “When Hyram wasn’t looking I—yes I—bit off the testicles. Then I wiped the blood on your face; I wiped it on your chin, around your lips, so Hyram would think that you had done it. I did that for you.”
Silence.
“Let’s take a break now, and meet in half an hour,” I suggested.
I rose, left the room, and walked down the motel corridor to the ladies room. The next thing I knew I was sobbing, sobbing uncontrollably, and retching over the sink. Ten minutes later, I rinsed my mouth, touched up the makeup around my eyes, powdered my nose, stuck half a stick of sugarless gum in my mouth, and returned to the conference room for round two.
I remember little of our second session. I was still processing the images of the first. However, I do recall spending some time examining the limbs and backs of all three brothers. When Preppy’s turn came, he balked at taking off his blazer and pulling up his shirt. He assured me that I would find nothing. When he finally acquiesced, a crosshatching of lines—worse than those on his brothers’ backs—attested to the fact that he had been the major victim of his foster mother’s wrath. The amazing thing was that he had no idea that these scars existed.
The memory of these events came to me in the context of the funding problems of court-appointed defense attorneys. My interview with the brothers took far longer than expected. As I mentioned, the more knowledgeable Jonathan and I become, the longer it takes us to complete an evaluation. There was simply no time left to go to the prison and see Roger that day. If we were to meet with Roger as a group, the brothers would have to stay over at the motel that night. This posed a problem. The court had provided travel funds for two of the brothers. The third, Preppy, had driven there in his own Chevrolet. But our meeting was supposed to take only one day, and the court had allotted no money for motel rooms. What is more, it was a weekend and there was no way to seek emergency funds. The brothers, unwilling to foot their own bills, decided to leave.
This made no sense to me. I had traveled three thousand miles to see Roger and his brothers together. We now had three of them in one place. The next day, at the prison, we would have all four. Such a convocation might never happen again.
“If you three are willing to stay overnight, I’ll pay for a room here,” I offered. The brothers agreed reluctantly, and only if I agreed to pay for two separate rooms so that David’s wheezing would not disturb the sleep of the other two. It was a deal.
I took out my credit card and handed it to the motel clerk. He made an imprint and handed back a charge slip for my signature. I was about to sign it when it occurred to me that writing my name on that slip was like signing a blank check. I handed it back and had the desk clerk imprint the cost of two rooms, $75 each. (Seattle, I discovered, costs lots more than West Virginia.) But it was worth $150 to me not to have to travel back and forth from New York to meet with them again. Now we could all get together at the prison the next morning. Roger’s attorney arranged to have another lawyer pick me up at the motel and get me there. Wesley would drive his brothers to the prison.
Some prisons are especially unfriendly. Roger’s prison opened early and evicted you at 2:30 in the afternoon, no matter who you were or how far you may have traveled to interview an inmate. Therefore, we would all have to get up early and take advantage of every minute allowed us.
The next morning, in preparation for what promised to be a long day without food, I ate my usual pre–death row breakfast. The assigned lawyer picked me up and we drove together to the prison. I wondered what Roger’s reaction to his three brothers and their grotesque memories would be. Would he be like his alcoholic brother and allow himself to remember? Or would he be like Preppy and deny everything?
As we pulled into the prison parking lot I saw Roger’s lawyer. She did not look happy; she looked tired and pale. I figured she must have worked late, preparing the agenda for today’s meeting. She was alone. The brothers must have been delayed; or perhaps they had gone into the prison first to have a few private moments with Roger.
Neither was the case. There would be no family meeting. That morning only Albert, the avowedly alcoholic brother, appeared at the prison. If the reminiscences of the previous day had reduced me to tears, they had caused major relapses in Albert’s two other allegedly recovered brothers. In fact, the memories had nearly killed the eldest, or so he thought. In the middle of the night, David complained of chest pains and was rushed by ambulance to a nearby hospital, where he now occupied a bed in the intensive care unit.
Preppy, for his part, after six years of sobriety, had anesthetized himself with Valium, washed down with generous amounts of bourbon and soda. Early that morning he dropped off Albert at the prison parking lot—his Chevrolet was last seen headed east, out of town. Albert, who could hold his liquor, having never given up the addiction, was the only family member able to keep our appointment. He met briefly with Roger, then relaxed with a six-pack in the back seat of the court-provided limo that drove him home.
As for us, the two lawyers and I met with Roger and Albert, then returned to the motel to pack up our belongings and leave. There, Roger’s attorney was confronted by the management with the brothers’ hefty bill for food and refreshments—mostly refreshments. Three hundred dollars of alcoholic refreshments. I was lucky. I got off easy with a bill for just $150 dollars, the cost of two rooms for one night.
Driving to the airport, I tried to console the attorney. Wasn’t it better to find out now what these brothers were like? Suppose later on she had depended on them to testify in court. Suppose they didn’t show up or showed up drunk. She was not consoled. Years later, out of the blue, I received a check from the state of Washington for $150, reimbursing me for my unforeseen expenses. I had totally forgotten about them. The defense lawyer obviously had not. I wonder how many hours of her time it took, filling out state forms, to get back this money. I wonder whether she ever got back her $300. I wonder if the state of Washington pays for bourbon and soda. I wonder whether Roger ever saw his three brothers again. I wonder if any of them is still alive.