Anatomy of Injustice (18 page)

Long was charged with aggravated assault with a deadly weapon. The case dragged on for nearly a year, with Diana unaware of what, if anything, the district attorney was doing until she received a subpoena to appear in court. She arrived early, demure in a loose-fitting lavender skirt, and waited for the case to be called. She waited and waited. At the end of the day, the case still had not been called, and she asked the clerk what was going on. The charges were dismissed, the clerk said; it was just your word against his.

It was a turning point. “I really felt fucked over,” she recalled. That sixth-grade dream had never died, and she began to think seriously about becoming a lawyer. Her grandmother encouraged her. She sold Totally Tanned and moved to Waco to live with her grandmother again. She started at McLennan Community College, then transferred to North Harris Community College. After four semesters of straight As, she enrolled at Southwest Texas State University, LBJ’s alma mater (since renamed Texas State University–San Marcos). Again she got all As—in algebra, world history, biology, zoology, Spanish, even Golf I. She got pregnant and married the baby’s father, Gordon Holt, who worked for a wholesale electrical supply company; they had met through friends. While raising three small boys, she was on the dean’s list every semester and graduated summa cum laude, with a major in English and a minor in political science.

She sent off her law school applications, including to Harvard. Hell, why not go for it? she thought. She wasn’t surprised when she didn’t get in. Given her past, she was amazed when the University of Texas admitted her. In response to the question, Why do you want to practice law? she had written: “I want to practice law because I want to help other people—people
who have not been afforded much help in their lives.” Holt entered law school thinking she would eventually work in the field of juvenile justice.

Then she encountered Jordan Steiker. He taught property, which is formulaic, all metes and bounds, primogeniture, how to pass on your wealth. Somehow, he managed to work in his passionate opposition to the death penalty. Before coming to Texas, he had clerked for Justice Thurgood Marshall, for whom capital punishment was “morally unacceptable,” as Marshall wrote in
Furman
. During the first week of class, Steiker invited his students to join him at a popular beer and burger joint in Austin. He talked about the death penalty. He told them how Justice Marshall instructed his law clerks that whenever an application for a stay of execution came into the court, he was to be notified immediately. Once, Steiker called Justice Marshall around midnight to tell him a stay request had come in. “How are you going to vote?” Steiker asked respectfully. “I can’t believe you called me,” Justice Marshall boomed back. “You know how I’m going to vote.”

The first death penalty case Holt remembers following was that of Charles Brooks, in 1982. It was only the sixth in the country and the first in Texas since the Supreme Court had reinstated the death penalty, and so was major news. Brooks, from a well-off Fort Worth family, and an accomplice, Woody Loudres, had been sentenced to die for the kidnapping and murder of a twenty-six-year-old auto mechanic, whom they bound and gagged and shot once in the head. They had been tried separately. Loudres’s conviction was overturned on appeal, and in a subsequent plea bargain he was sentenced to forty years in prison. Brooks’s lawyers then sought to have his death sentence set aside: it did not seem right that Loudres should live and Brooks be executed when they were guilty of the same murder. Besides, only one shot had been fired, and it was not clear who had pulled the trigger. The Supreme Court turned down his appeal, 6–3.

When Brooks was strapped to a gurney and wheeled into the death chamber at the state prison in Huntsville, Texas, on
December 7, 1982, he became the first person to be executed by lethal injection. This so-called humane way of death touched off a fierce debate. Opponents of capital punishment feared that juries might find it easier to impose “humane” execution. Some death penalty advocates were against it as well. “It’s too lenient,” said a young man who had joined a gathering outside the Huntsville death chamber for Brooks’s execution. “They’ve got to go painfully.”

Lethal injection as a method of execution had first been proposed in the nineteenth century by a New York doctor as cheaper than hanging, but was not adopted. Britain rejected it in the early 1950s because of opposition by the British Medical Association. Oklahoma was the first state to use it, in 1977, and eventually all capital punishment states followed. The condemned is strapped onto a gurney and wheeled into the execution chamber. Witnesses are on the other side of a window, looking in. The man’s arms are swabbed with alcohol, and two intravenous tubes are inserted, one in each arm. From another room, unseen by the condemned man or the witnesses, the executioner first releases a general anesthestic into the tubes. (In surgery, 100 to 150 milligrams is used; for executions, as much as 5,000 milligrams.) This is followed by a muscle relaxant, which paralyzes the diaphragm and lungs, thus making it impossible for the condemned man to breathe. Finally, potassium chloride may be injected, causing death by cardiac arrest.

Death penalty lawyers mounted systematic challenges to the method, and numerous state and federal appellate courts granted stays. In 2008, the United States Supreme Court spoke, in the case of Ralph Baze and Thomas Bowling, who had been convicted of double murders in Kentucky. Their lawyers argued that there was a significant risk of the drugs being improperly administered and that therefore lethal injection was “cruel and unusual,” in violation of the Eighth Amendment. A range of organizations filed briefs in support of the position, including the ACLU, the Louis Stein Center for Law and Ethics at Fordham University, Human Rights Watch, and the American Association of Jewish Lawyers and Jurists. The Bush administration
and sixteen states filed “friend of the court” briefs in support of Kentucky, which was seeking to execute.

The court rejected the argument. Writing for the majority, Chief Justice John Roberts noted that since 1879, when it upheld use of the firing squad, the court had rejected every challenge to the method of execution. “Our society has nonetheless steadily moved to the more humane methods of carrying out capital punishment,” he wrote. “The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection.”

Justice John Paul Stevens joined the majority but said he did so only because he felt bound by the court’s previous rulings upholding the constitutionality of the death penalty. Stevens, who had voted with the majority when capital punishment was restored in 1976, made it clear that it was time for state legislatures to consider repealing their death penalty laws. “State-sanctioned killing,” he wrote, was “becoming more and more anachronistic.”

H
OLT WAS NOT AGAINST
capital punishment as she listened to the radio reports of Brooks’s execution, though she was unnerved by the method. It was not until her first year of law school that her opposition to the death penalty began to take shape. She befriended a Mexican woman and her friends who had camped out on the sidewalk in front of the governor’s mansion to protest the pending execution of the woman’s son. She brought them food, sympathy, and, with her Spanish, someone they could talk to. In the academic cloister, she discussed capital punishment with her contracts professor, Tom Russell. Close in age, he and Diana became good friends, often talking about their children. He was struck by how quiet she was. “The shiest student you could find,” Russell said. During three years of law school, “Miss Sassy” barely spoke. She and Russell debated whether he should write on the blackboard the name of every man who was executed in Texas on the day it happened. She encouraged him to do it. But he wasn’t tenured and backed off.
When Holt told Russell that she thought she wanted to work as a death penalty lawyer, he had serious doubts that her commitment would survive the three years of law school, which have a way of turning idealists into corporate lawyers.

In her first year, Diana applied for a Texas Law Fellowship, for students interested in careers in public interest law. Diana doubted she had much of a chance—there were only ten fellowships—but she got one, and the $3,000 stipend was a welcome addition to the family budget. On the recommendation of Professor Steiker, she went to work at the Texas Death Penalty Resource center, in Austin. There were twenty similar offices in capital punishment states around the country. Congress had created them in 1987, in an attempt to provide men and women on death row with competent counsel to challenge their convictions, which often were the result of grossly incompetent trial counsel. Resource center lawyers were strikingly successful—half the death penalty cases they handled ended up with the conviction or sentence being reversed—and the centers came under attack from conservatives. “Taxpayer-funded nests of saboteurs who believed it was their mission to grind the system to a halt,” as one conservative legal voice, Kent Scheidegger, put it. He was right that they were taxpayer funded, and if keeping a man alive meant grinding to a halt the system that was going to kill him, the lawyers did that—just as any good corporate lawyer would do if it meant protecting his client from paying out millions of dollars in damages in commercial litigation.

Sheidegger’s saboteurs were Holt’s heroes, role models, and mentors—Rob Owen, Raoul Schonemann, and Eden Harrington, names as unknown to the public at large as they were well-known to death row inmates. They were energetic, idealistic, passionate lawyers. Diana caught their spirit and found her calling. “Poisoned, hooked, there will be nothing else,” she said.

The lawyer who had the most influence on Holt that summer was Joe Margulies. Intense, wiry, and bearded, he was slightly older than the others and had already lost some of his idealism about criminal justice. He had grown up in suburban Washington,
D.C., the son of a government lawyer, and had been uncertain what he was going to do when he went to college. Searching, he took a leave of absence from Cornell to work as an investigator in the public defender’s office in Washington, D.C. After a year and a half, he returned to Cornell, graduated, and went to work with the public defender in Minneapolis. He was jolted by the state misconduct he witnessed. Police and prosecutors would dissemble, conceal and plant evidence, and engage in other unethical conduct in order to gain a conviction. He decided to become a lawyer, graduated from Northwestern University Law School with honors, and naturally migrated to Texas, the most active state in executions.

“I thought a bunch of smart young lawyers who worked really hard could stop the killing machine,” he said, looking back more than two decades later. “I really believed that. We were so fucking young and smart and talented. We all went to hot-shit law schools and clerked and had hot-shit résumés. We worked insane hours. Insane. We were nuts. Drank like fish. It took me a long time to get past that, and not before I burned out big-time.” When he ceased representing death row inmates, he still raged against injustice and didn’t shy away from unpopular causes. He would be one of the first lawyers to defend suspected terrorists held at Guantánamo and in the secret prisons, signing up when the anger about 9/11 was still raw and lawyers who took the cases were labeled un-American and traitors.

Holt found him to be “dynamic, charismatic, brilliant, wacky,” and an exacting mentor. “He could peel the skin off,” Holt recalled years after studying under his tutelage. “It was effective—you weren’t going to make that mistake again.” He also instilled confidence. He once sent Diana and another intern to Del Rio, Texas, to interview a cop who had a particularly nasty reputation and had been thrown off the police force for violence. Diana’s colleague decided after a few days in Del Rio that it was too dangerous and bowed out. Joe called Diana and asked if she felt in danger. If she did, she should come home. She said no and that she would call him if it became too risky. He trusted her judgment, and her confidence slowly grew.

“Are you a fact lawyer or a law lawyer?” Margulies barked at Holt on one occasion. She stammered that she was both. “Goddamn it, Holt,” he shot back, “anybody can take the law and write it out. You have to have the facts.”

In criminal defense appellate work, “law lawyers” are ardent students of the Constitution and can dissect the Supreme Court cases interpreting it. They argue when appropriate that their client did not get a fair trial or was denied effective assistance of counsel, that the state failed to turn over exonerating evidence, that blacks were excluded from the jury, that this constitutional provision and that were violated. Fact lawyers investigate vigorously and search for evidence that shows their client did not commit the crime or, if he did, that his life should be spared. Diana was to become a fact lawyer extraordinaire, an investigator’s investigator. No matter how deeply the state had sought to bury evidence, she could find it. She had an ability to get folks to open up to her, even confess to murder. “It’s amazing what people will tell her,” said a colleague. Maybe her diminutive size put people off their guard. There was also a bit of actress about her, and her Texas accent would become noticeably thicker when she was trying to gain someone’s confidence.

The second year of law school didn’t beat the idealism out of Diana either. Margulies suggested she broaden her experience by working at the South Carolina Death Penalty Resource Center.

W
HAT THE HELL
am I doing? Holt thought. It was June 1993 and she was driving across the South in her Nissan minivan loaded with clothes, pillows, photographs, everything she thought she would need, want, and miss during a summer in South Carolina. Most of all, she knew she’d miss her boys—Jeffrey was a few months shy of becoming a teenager, Justin was ten, and Christopher was about to turn five. Am I a horrible mother, leaving them for ten weeks? she asked herself. She was scared, heading toward a totally new experience, but at the same time proud that she had the courage to travel halfway across the country by herself.