Saturday, December 10, 2011

Up Close and Personal

A year ago now, probably, Jamison Koehler wrote a blog post about self-referential blawgging.  I'm not going to bother looking for it to provide a direct link now, but one of the things he found was that of the blawgs he examined I seemed among the least likely to talk about myself.
Consider this post an exception.  And feel free to skip over it if that bothers you.
Don't worry.
I won't be offended.
But I need to tell you a story.  Like all good stories it's mostly true.  Except for the parts that aren't.  But that should be and could have been.
Lawyers must take continuing legal education classes.  Those who do court appointed death penalty defense work in Ohio must be specially certified to do that work, and one part of the certification process is that they must have 12 hours of death-penalty-defense CLE every two years.  I often teach at those seminars.  I was scheduled to teach several sessions - a total of about 6 hours - at one Thursday and Friday in Toledo.

During the coming-on-toward 42 years that we've been married, both of my parents and my father-in-law died.  When my father died, I was at the hospital in New York with him; my wife was in Texas with our sonse.  When my mother died, I was in Toledo and then flew immediately to New York; my wife was in Panama with the boys.  When my father-in-law died, my wife was in Pittsburgh with him; I was in Chicago with our younger sone who'd broken his ankle in three places the night before.  So it stands to reason that when my sister died in New York, my wife was nearby but I was in Toledo.  I was there rather than by my sister's bedside because although my sister was in a hospice unit and was clearly dying, we were pretty clear that she had another few weeks.  And I had this obligation to teach at the seminar, though I suppose I could have got out of it.  Anyway, when my wife called me with the news about my sister at 6 a.m Friday morning, it was shocking.

I could have bailed on the seminar and flown to New York that morning, but I frankly couldn't face spending who knew how many hours sitting in an airport.  Instead, I stayed among friends at the seminar.  Working the phones and the e-mail and making connections and dealing with the funeral home and the hospice and making arrangements to fly to New York that night. And then teaching my sessions.

That afternoon I did a sort of miscellany session where I just talk about things I've been musing over, things related to capital litigation for the past couple of years.  (I call these sessions "Gamso Thinks," but the Supreme Court won't allow CLE credit for something called that, so we usually call them "Tips and Ideas" or something, which what they actually are.)  I'm invited to do one of these at an Ohio death penalty CLE every few years, and I never know until a day or so before I do it exactly  what I'm going to talk about.  This year my theme was how you live with death penalty cases forever.  There's a continuing duty to the client and you can never give up and dammit there's no case where - at least if things break even a little bit right, you can't manage, somehow, to save the client from the gallows.
I began by telling the folks in the audience, many of them friends and many of them (not all the same ones) who never have and never will do a death penalty case, that if you do enough capital trial work, sooner or later you're going to hear a judge sentence your client to be killed.  And if you do enough capital appeals, you're going to have a client's death sentence affirmed.  And if you do enough late-stage capital work, you're going to have a client executed.  Some people, some very good lawyers cannot handle that.  Others of us have the mental defect that allows us to be devastated by the loss of a client for whom we've struggled mightily but to get up the next day and fight like hell for another one.

And I told the story of a case I got involved in for the ACLU of Ohio in April 2010.  I happened to be in the ACLU office.  There was a guy, Darryl Durr, who was to be executed the following Tuesday.  There was a necklace he wanted to have tested for DNA that might just prove he was innocent but that the state wouldn't test.  He'd been asking for testing for some time, but the state was adamant.  His main lawyer asked the ACLU if they'd sue in federal court to try and get him to be able to argue for the testing and get a stay so he'd be alive long enough to make it possible.  The ACLU of Ohio doesn't do direct representation in criminal cases, but it does this sort of thing, and it agreed.

So I was in the ACLU office while they were preparing the lawsuit.  I'd gone back to criminal defense practice by then but was there for a couple of days to hang out with my replacement as Legal Director.  And since I was there, I volunteered to help. After all, I knew the death-penalty and criminal-law related issues better than anyone else in the office.  I explained to the LD and to the staff attorney and the other folks involved in the case, that we would almost certainly lose.  I said that Darryl's main lawyer would probably lose her part of the case, too.  That by Tuesday morning, we'd all likely have lost all our litigation in every court up through the US Supreme Court.  I told them that at 10 Tuesday morning, Darryl Durr would likely be executed, and that even though they'd never met him, they'd be devastated.  Be prepared, I said, for one of the very worst days of your life.

All of the ACLU folks said that it would be sad, but that it wouldn't be as bad as I said.  After all, they'd never met Durr, and ours wasn't his main case.  And I was going to be lead counsel and have to do the actual arguing before the courts.  I told them to wait. 

We lost our case in the federal district court.  We filed our papers and lost on Friday in the US Court of Appeals.  We filed our papers and lost lat Monday night in the US Supreme Court.  That same night, the Court turned down Durr's main lawyer's application for a stay and with that the latest appeals.  The next morning, Darryl Durr was murdered by the State of Ohio.  I was right about how they would feel.  They were wrong.  The LD and the staff attorney both swear that they'll never actually represent someone in another capital case.

There's no disgrace in that, I told the lawyers at the CLE session.  Those ACLU lawyers are  both fine lawyers, good friends, and good people.  They care about their cases and their causes and their clients.  They want to do a good job.  They want to see some sort of justice, whatever exactly that is, prevail.  But being part of death that way, of a capital case so up close, was too much.  Not for them.

How do you do this, they asked?  How do you keep going?  And I told the two of them what I told the assembled lawyers at that CLE.  I have that mental illness that allows me to do this work. 

And I told the CLE class that my sister had died that morning.  That a week or so before, when I was sitting in the hospice room with her, I received a phone call from a friend telling me that another friend has died that morning.  I deal, I said, in death and destruction.  With those who kill and with the consequences of their having killed.  With the sorrow and the pain.  Just because you attend the seminar, I said, doesn't mean that you have to take capital cases.  They take something from you.  Harden you and soften you at the same time.  And they eat away at you.  But if you have that mental defect, you can do the work.
And if you do it well, and passionately, and with commitment and purpose, there's nothing in the law that's more meaningful and satisfying.  God's work, someone called it.  He wasn't wrong.  We're trying to save lives.  Sometimes we do.  Sometimes we don't.

I had dinner tonight with some old and very dear friends from Texas.  It was joyous and sad.  Metaphorical crepe hanging amid the real Santas and the menorah.  I mentioned to one that the day before my sister took the ambulance to the hospital, a trip from which she never returned home, she and I had gone to see the new Werner Herzog documentary, Into the Abyss.  The friend had seen it too, on opening night as it happened.  Herzog was there for a Q & A afterwards. He was asked about the title and said that really, any of his films could have been called "Into the Abyss."
On hearing of my sister's death, a dear friend sent me this poem.  I'd have read it to the CLE class if I'd known about it.

In Blackwater Woods

by Mary Oliver

Look, the trees
are turning
their own bodies
into pillars

of light,
are giving off the rich
fragrance of cinnamon
and fulfillment,

the long tapers
of cattails
are bursting and floating away over
the blue shoulders

of the ponds,
and every pond,
no matter what its
name is, is

nameless now.
Every year
I have ever learned

in my lifetime
leads back to this: the fires
and the black river of loss
whose other side

is salvation,
whose meaning
none of us will ever know.
To live in this world

you must be able
to do three things:
to love what is mortal;
to hold it

against your bones knowing
your own life depends on it;
and, when the time comes to let it go,
to let it go.

"In Blackwater Woods" by Mary Oliver, from American Primitive. © Back Bay Books, 1983.


  1. "The death-penalty defense practitioners, from my perspective, are holy men and women. They're the most sacred of our profession." - Tony Serra, as quoted in Lust for Justice

    You know that the case of a particular defendant eats at me, but at least I'm still able to harbor high hopes of seeing him delivered. In that case what eats at me, along with my personal failure, is his innocence (because there are some people, not him, who are justly locked up for the safety of the community), but every sentence of death and every execution constitutes a similar if not greater injustice, because none are justified by the safety of the community, and all constitute the most premeditated and deliberate of murders.

    I like that poem, though its meaning is as mysterious as life itself. It advises that we must be able to let go of that which our own life depends on. It affirms that on the other side of the black river of loss IS salvation, while denying that any of us will ever know its meaning. (I personally think that salvation consists in returning to and losing our individuality in God, who is more us than we are ourselves, and that God knows. But what do I know.)

    I am sorry for your loss.

  2. Thanks for sharing this, for letting others know about the real pain involved, and for being able to continue on regardless.

  3. Thanks to one and all, both those who posted comments and those who sent notes directly.