Mourning Again

The e-mail from the Supreme Court came minutes before 10 last night.

Please see the attached orders of the Court denying Darryl Durr's petitions for a writ of certiorari and applications for stay.

There were slight differences in case captions and docket numbers. On all the parts that mattered, though, the three attached orders were identical. The orders are stark, spare. There's no blood visibly spilled on them or gushing forth from them, whichever image is more accurate. Just a few numbers, a case caption, a single sentence. Here's the one on which I was counsel of record.
Cert Denied
You stare for a while. You think about co-counsel and wish you were together. You think about Darryl. Mostly, you're numb. Or maybe not. Maybe you smash something. Or you have a drink. Or an illegal drug. Maybe you hug your spouse and your kids. Maybe you cry. Maybe you do all those things. We all react to death differently.

Of course, this isn't just death. The typing may or may not have been calm, the actual killing when it happens in a couple of hours may or may not be peaceful, but there's no going gently into this good night.

This is murder. Planned. Cold. Calculated.

At ten o'clock this morning a bunch of guys at the Southern Ohio Correctional Facility in Lucasville will bring Darryl Durr from a holding cell to the death house. They will strap him to a table. They will kill him.

I hate the death penalty. I am unalterably, implacably opposed to it. In all places. At all times.

But it's different when it's my client. It's personal. Like everyone else, I struggle to name the seven dwarfs. I can't tell you, off the top of my head, the names of all the five men who were murdered by the several states during March. But I can name the five guys I've represented who have been killed by their governments in my name:

• Michael Lee McBride
• Richard Fox
• James Filiaggi
• Gregory Bryant-Bey
• Abdullah Sharif Kaazim Mahdi

I never met McBride or Fox, and my name never went on McBride's case. I just worked on their cases with their lawyers. But they're mine. Some I represented only years before they were killed. Filiaggi was my client to the end. Doesn't matter. They're all mine. Those sorts of distinctions, some of them anyway, blur. They are my clients. They were my lives to try saving. I failed.

I didn't put any of them on the row, but I didn't get them off, either.

Darryl Durr isn't on that list because he's still alive as I type this. And Governor Ted can always change his mind until he no longer can. He won't, of course, but he can. Here's what he said.

As a result of his conviction for aggravated murder, Mr. Darryl Durr is scheduled to be executed on April 20, 2010 at 10 a.m. I have completed a review of the circumstances surrounding his case to determine if executive clemency is warranted.

In conducting this evaluation, my staff and I reviewed the record of proceedings and the evidence presented in Mr. Durr?s case, the judicial decisions regarding Mr. Durr's conviction, and arguments presented for and against clemency at the Parole Board hearing regarding his application for executive clemency. We have also reviewed institutional records and letters received in the Governor's Office regarding this matter. And we have reviewed the unanimous recommendation against clemency forwarded to me by the Ohio Parole Board on October 8, 2009, along with the exhibits presented at the Parole Board's hearing, letters received by the Parole Board regarding Mr. Durr's case, and materials submitted to the Governor's Office by Mr. Durr's counsel after the Parole Board made its recommendation.

Based on this review, I concur with the Parole Board recommendation on this matter.

The blood will be on his hands more surely than it was on Darryl's since, after all, Darryl might not have done it. And if there's proof of that, we won't ever know it because the state and the courts won't let us test the last item that might have DNA.

But Ted's aren't the words of a man who's likely to lose much sleep over what he did yesterday. His are the words of a politician. They say, implicitly, that signing off on a murder is like signing off on, oh, say a "friendly wager" with Michigan's Governor Granholm.

Granholm and Strickland have agreed that the governor whose state has the higher percentage of Census forms returned by mail by Earth Day, April 22 will donate a specimen of its state tree to the state with the lower rate of return. The tree exchange will take place on Arbor Day, April 30, and the governor receiving the tree will have it planted in a spot of his or her choosing. A photo of the governor and the tree will be publicly released.

Michigan's state tree is the White Pine and Ohio?s state tree is the Ohio Buckeye.

You know, that decision of whether to make the bet over a tree or, say, a flower bed, must have been a toughie. Like deciding about whether a life should be saved.

I've never met Darryl Durr. I've had the honor, the privilege, of fighting for his life for just a week. There are others who've fought for him longer, who've worked with him over the years, who've gotten to know him, who'll mourn for the Darryl they knew. And I don't want to make myself sound like a martyr.

I do post-trial capital work willingly, knowing what might end up happening, what does sometimes happen. Yet I do it anyway. For the fight. Because it's hard. Because someone has to. Because sometimes we do save the life. And because I'm one of those folks who can do it and then get up the next day and do it again.

By the end of the day, there will have been 13 executions in the United States this year. Florida, Louisiana, and Virginia will each have murdered one. Texas will have killed five. Here in Ohio, we'll be up to four. We have seven more scheduled this year.

In a few hours, they'll murder Darryl Durr.

Next is Michael Beuke. His murder is scheduled for May 13.