Conviction

AFTERWORD AND ACKNOWLEDGMENTS

THE DEATH PENALTY IS A DIFFICULT AND EMOTIONAL SUBJECT. In writing this book, I (like Christopher Paget) found myself looking at my nine-year-old son from several conflicting perspectives: How would I feel about a murderer who subjected him to a terrible death? How would I feel if, on the eve of execution, postconviction lawyers cast doubt upon the guilt of a man whose guilt I had never doubted? And what kind of man would my own son become if he had the terrible history common to so many occupants of death row?

These questions, and others, pervade our system of capital punishment. But this emotional complexity is only the beginning: the law of capital punishment is far more complicated than I portrayed it (a Supreme Court justice once remarked to me that the only legal thicket of similar obscurity is patent law). So it is important to emphasize that the body of law I depicted is authentic. The Antiterrorism and Effective Death Penalty Act (AEDPA) is a real statute, and the cases and legal principles I cite are also real, however hypertechnical or counterintuitive they may seem; indeed, I was forced to simplify both the law and legal procedure—drastically—in order to make them comprehensible to laypeople. Even the case described by Judge Blair Montgomery to Chief Justice Caroline Masters, in which the execution turned on an administrative error within the Ninth Circuit Court of Appeals, is real—though I severely condensed its Byzantine history, which otherwise would have consumed many more pages than most readers could have tolerated.

Thus the essence of my problem was to portray the murky reality of the law with sufficient clarity to convey its pitfalls and yet be understood. Not easy. As an ex-lawyer, I find this the most difficult area of law I have ever encountered, convoluted in both substance and procedure. But the bottom line is this: much of this complexity reflects a fundamental and passionate disagreement—whether the principal goal of postconviction litigation is achieving finality or preventing the potential execution of the innocent. I hope that this novel does that conflict justice.

Given all this, I'm particularly grateful to those who gave me the benefit of their experience and expertise.

To be a postconviction litigator requires astonishing resourcefulness, resilience, and stamina—physical and psychological. I was fortunate to have the advice of some of the country's foremost specialists, for whom this is a full-time career: Anthony Amsterdam, Sandra Babcock, Stephen Bright, David Bruck, Tim Ford, Larry Marshall, Gary Sowards, Bryan Stevenson, Keir Weyble, and especially Michael Laurence, who not only met with me for countless hours but reviewed the manuscript to help me stay true to the environment of habeas corpus litigation. Thanks, too, to the other fine lawyers who shared with me their experience in postconviction litigation: Eve Brensike, Vernon Jordan, David Kendall, Leslie Landau, Jay Paultz, Linda Schilling, Dorothy Streutker, and Doug Young.

A particularly fascinating area involved re-creating an inmate's social history and psychological profile. I was lucky to have the advice of Scharlette Holdman, the pioneer of social histories, as well as that of psychologist Kathy Wayland. Mental health professionals who shared their perspectives on death row inmates included Dr. Karen Froming, Dr. Ruth Luckasson, Dr. Daniel Martel, Dr. Richard Yarvis, Dr. Myla Young, and especially Dr. George Woods.

This book also required me to understand the investigation and prosecution of a capital case from beginning to end. It was my great good fortune to meet or speak with some of the most capable experts around: Drew Edmondson, Attorney General of Oklahoma and President of the National Association of Attorneys General (NAAG); San Francisco (and now San Mateo) Assistant District Attorney Al Giannini, who has never lost a homicide prosecution; California Assistant Attorney General Dane Gilette, a specialist in postconviction litigation; the legendary San Francisco homicide inspector Napoleon Hendrix; and Dr. Boyd Stephens, San Francisco's nationally renowned medical examiner. Officers Shaughan Ryan, Jimmy Aherne, and Tim Fowler took me for a ride-along in the Bayview District, and taught me some fascinating lessons in policing a difficult area. Thanks, too, to Lynne Ross of NAAG, who helped me in several important ways. I also received advice on the finer points of criminology and forensics from Dr. Peter Burnett. And I'm particularly grateful to Jayne Hawkins and Kate Lowenstein for sharing the perspectives of those who have lost a family member.

As I have noted, the law of capital punishment is bedeviled by complexity. Many thanks to those lawyers who shared their knowledge of the law, and of the system: Stuart Banner, Jim Liebman, and Stephen Shatz. I am also grateful to those who have recently dealt with these issues as clerks of the California Supreme Court, the United States District Court, the Ninth Circuit Court of Appeals, or the United States Supreme Court: Julie Bibb Davis, Veronica Gushin, George Kolombatovich, Stacey Leyton, Valerie Mark, Deirdre Von Dornum, and Claudia Willner.

The Supreme Court is an institution to itself, as powerful as it is secluded. I owe whatever success I enjoyed in rendering the environment of my imaginary Supreme Court case to Kathy Arberg and Ed Turner, of the Supreme Court clerk's office, and the legal scholars and practitioners Dean David Burcham, Walter Dellinger, Jon Hacker, Edward Lazarus, Richard Lazarus, Jeremy Maltby, and Mark Tushnet. And special thanks to Linda Greenhouse for sharing her observations of the Court.

I am also deeply grateful to those who gave me their differing perspectives as judges: Judge Thelton Henderson of the United States District Court, Judges William Fletcher and Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, and especially, Judge Stephen Reinhardt, also of the Ninth Circuit. Another valuable perspective came from those who have made opposing the death penalty as advocates a central part of their lives: Richard Dieter of Death Penalty Information Center; Elizabeth Dahl, Joseph Onek, Barbara Reed, and Virginia Sloan of the Constitution Project, and Lance Lindsey of Death Penalty Focus. The prisoners' rights advocate Steve Fama imparted his unique insight into the day-to-day life of inmates at San Quentin. But there was no experience more piercing than my interview with Marvin Pete Walker, now Shaka Nantambu, concerning his existence as a death row prisoner facing the prospect of execution.

I also benefited from the following reading:

Books and Treatises

Books

Ellis, James W. Mental Retardation and the Death Penalty: A Guide to State Legislative Issues. Albuquerque: University of New Mexico School of Law, 2002.

Lazarus, Edward. Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court. New York: Crown, 1998.

Liebman, James, et al. A Broken System: Error Rates in Capital Cases, 1973–1995. 2000. The Justice Project. http://justice.policy.net/jreport.

———. A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It. 2002. The Justice Project. http://justice.policy.net/jreport.

Rehnquist, William H. The Supreme Court. New York: Knopf, 2001.

Turow, Scott. Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty. New York: Farrar, Straus & Giroux, 2003.

Articles

Bandes, Susan. "Simple Murder: A comment on the legality of executing the innocent." Buffalo Law Review 44 (1996): 501.

Blume, John, and David Voisin. "An Introduction to Federal Habeas Corpus Practice and Procedure." South Carolina Law Review 47 (1996): 271.

Bright, Stephen. "Political Attacks on the Judiciary: Can justice be done amid efforts to intimidate and remove judges from office for unpopular decisions?" Judicature 80 (1997): 165.

———. "Counsel for the Poor: The death sentence not for the worst crime but for the worst lawyer." Yale Law Review 103 (1994): 1835.

Leno, Mark. "The Ultimate Price: Is the death penalty California's best interest?" San Francisco Chronicle. January 28, 2003. p. A17.

Liebman, James S. "The Overproduction of Death." Columbia Law Review 100 (2000): 2030.

Reinhardt, Stephen. "The Anatomy of an Execution: Fairness vs. Process." New York Law Review 74 (1999): 313.

Schatz, Stephen F., and Nina Rivkind. "The California Death Penalty Scheme: Requiem for Furman." New York Law Review 72 (1997): 1283.

Talbot, Margaret. "The Executioner's I.Q. Test." The New York Times Magazine. June 29, 2003. p. 30.

Will, George F. "Innocent on Death Row." The Washington Post. April 6, 2000. p. A23.

Finally, I want to thank those who read and commented on the manuscript: Laurie Patterson, Fred Hill, Alison Porter Thomas, Cheryl Mills, and Philip Rotner; and my editors, Linda Marrow and Dan Menaker. And then there are the two publishers to whom this book is dedicated, who have steadfastly supported my belief that popular fiction can address controversial legal, political, and social issues: Gina Centrello, President and Publisher of the Random House Publishing Group, and Nancy Miller, Editor in Chief of Ballantine Books.

In concluding, I understand that writing about capital punishment will arouse a number of emotions in my readers, not all of them admiring. So, as always, I want to be very clear—those who helped me are not responsible for the narrative, or any of the often conflicting views expressed therein, let alone any errors of fact or interpretation. One person conceived and wrote this book; any fault is mine alone.

Thanks, as always, for bearing with me.

RICHARD NORTH PATTERSON

Martha's Vineyard

April 2004