Murder by We, the People

As we have been considering murder here I received word that a close friend of mine, Dana Cole, a fine man, lawyer and a law school professor, has recently witnessed the murder of his client.

I have argued that the seeds of murder abide in all of us. But what about the love of murder that flourishes in the belly of the law? The law purports to represent right conduct on the part of we, its subjects. But the law itself is a killer. And we, though those who represent us, author the law. As a trial lawyer for now more than fifty-six years I have acted on both sides of this question. But rarely do we discuss who actually endures the punishment of death.

Lawyers who take on a death penalty case are among our greatest heroes. They are few and unsung and often despised. Their pay is piteous. And some work without fee. But they protect the soul of the law. In America the promise is that every citizen, no matter how vicious and brutal, is entitled to a fair trial. Only a lawyer who loves the law and has a deep sense of the human condition would take on such an assignment. For most lawyers, such cases are too ugly, too bloody, too horrifying and too painful.

Here, in part, is what Dana wrote me concerning the execution of his client, Rick.

As the shock of witnessing my friend die begins to wear off, the horror only increases.  I have never had trouble sleeping until now.  I sleep only a few hours at a time and even then I have nightmares — bizarre dreams involving dogs that strain against their leashes and break their restraints but simultaneously break their necks.  I cry in restaurants without warning and without even consciously thinking about Rick.  If things don’t improve soon I’ll go see someone about it.
 
I have received unbelievably hateful voice and email messages.  More than one person has expressed their wish that my daughters suffer the same fate as the victims in Rick’s case.  I have also received very loving and supportive messages.

I feel compelled to defend Rick even in death.  I made the following statement to the press immediately after Rick was killed:

“I am Rick Cooey’s lawyer and friend.  The crimes that Rick committed he committed as an immature 19 year old influenced by drugs and alcohol.  We try to pretend we are somehow better than Rick. But what we witnessed here today was a killing that was planned and funded for more than 22 years.  The man we killed is not the same man who committed the crimes.  He had grown and evolved and matured and was today a 41 year old man who bore no resemblance to the teenager he once was.  He was good and decent, bright and articulate, creative and witty, and very kind.  He was loved by his family and his friends and even his lawyers and we will miss him.  Rick is now beyond pain — beyond sorrow — beyond the call for his blood.

We refused to show Rick mercy by arguing that he showed his victims no mercy. When we are asked to account to God for having killed Rick, what will we say? — that it was the law?  In the words of George Bernard Shaw, “Criminals do not die at the hands of the law; they die by the hands of other men.”  The mercy we refused Rick, we will surely someday need and may God have mercy on us all.”

They will send me Rick’s ashes and I will take him to Ireland to a spot he and I picked out together…Despite the pain of all this, I know I was right where I needed to be — with Rick until the end and beyond.

Meaningful words are hard to find. Here is some of what I wrote Dana:

Once more I ask, who is being punished here? Rick is at peace. His death will not erase the pain of his crime. You will bear the scars of this case for the rest of your life — and it has nothing to do with any failure on your part. It has to do with the injury that is imposed on decent, dedicated lawyers in cases in which this illegitimate penalty is imposed — for how can death be a just punishment in a system that makes intentional killing a crime?

We kill the killers and become killers, and wonder why we cannot stop the killing. Yes, we are killers. I, too, would kill with a certain glee if the Death Penalty were humanized and I could drive a knife through its heart once and for all.

In the end, Dana, you can see this as your gift, and Rick’s, toward the demise of the Death Penalty. As in any war, we have to invest so many lives in the battle before it can be won.

Indeed, if we executed the legislators who gave birth to this law; the judges and jurors who embraced it — who joined in this conspiracy to kill; if we applied the law of murder to the mob of citizens who clamored and yowled for Rick’s blood, and to the prison personnel who for twenty-two years planned and finally committed this public killing – if all were punished similarly for this premeditated murder, this uncivilized idea of the death penalty would soon vanish.

In the name of humanity we must stop the killing – all killing, or in the alternative we must stop claiming there is something noble, something heroic about the species that separates us from the beasts.

On murder

“You can never beat the big one,” old Tom Fagen used to say. He was a grizzled, tough talking criminal defense attorney who was as sweet and easy inside as an Easter bunny. He was talking about murder — the charge. If you are guilty and tried, and if the jury acquits, it makes no difference. You can never beat “the big one.” An evil entity intervenes. The Prince of Demons shall we call him. He attacks with guilt. I have known those who beat “the big one” in court to at last be beaten by their own hand. Suicide it is called. I think it better called the revenge of “the big one.”

I have seen those who have beaten “the big one” end up being murdered by others. I have seen them die the slow self imposed death of piteous alcoholics or drug addicts. I have seen them die desolate, alone, often diseased when the body has given up because the mind could no longer deal with “the big one.”

I know that the psychopaths and sociopaths, those without a conscience, may still trot around, perhaps dying of old age, laughing that they beat “the big one,” perhaps even more than once. But those poor devils were beaten to begin with, their lives a waste and empty as a can. They never were in the race – not even the human race.

But what about the innocents who are charged with murder and acquitted? Once charged, the innocent can never fully recover — the terror of the trial, the helplessness of standing for judgment in such a place of horror as a courtroom where nothing grows, where no one believes you, where if you rise up and scream your innocence you are hauled away where you can scream only at gray walls, and if you sit passively by the judgers, the jury, the citizens, the court gawkers – they all know you are guilty or you would be screaming your innocence.

And you cannot escape the transforming power of fear. At night you awaken and the first thought that creeps into your mind like a poison worm is that you will be found guilty, that they will haul you off in an orange suit to some dark hole where you will rot the rest of your life, where you will never again see your loved ones, never be touched by a loving human hand, never again see the peaceful leaves of fall or the joyous spouts of spring. No greater punishment exists than one imposed on the innocent.

Or, yes, they may order the gurney and the dripping needle for you, the last meal, the media crowded around to watch you die, and the hateful death-penalty ghouls rejoicing in the hallways that one more of their species has been wiped from the face of the earth.

In this world in which all innocence has become the cynic’s delight, there is no innocence. On that rare occasion when the innocent may be acquitted there has been too much pain for too long. The torture of months, perhaps years of terror awaiting trial and then the horror of the trial itself – it is then that The Prince of Demons comes to occupy even the body of the innocent accused. The tortured body and mind have become emptied of life, empty as death. It’s as if you have been murdered by the malicious heat of the murder trial itself. As old Tom said, you can never escape “the big one.” No, never.