The Confession (31 page)

“I think your lawyer’s on the way.”

Donté nodded and picked up another slice.

———

At 4:21, the Fifth Circuit Court of Appeals in New Orleans denied relief under Donté’s claim of mental illness. The Flak Law Firm immediately filed in the U.S. Supreme Court a petition for a writ of certiorari, or cert, as it’s known; a request that the Court hear the appeal and consider the merits of the petition. If cert was granted, the execution
would be stopped, and time would pass while the dust settled and briefs were filed. If cert was denied, the claim would be dead, and so would the claimant, in all likelihood. There was no other place to appeal.

At the Supreme Court Building in Washington, the “death clerk” received the cert petition electronically and distributed it to the offices of the nine justices.

There was no word on the Boyette petition pending before the Texas Court of Criminal Appeals.

When the King Air landed in Huntsville, Robbie called the office and was informed of the adverse ruling in the Fifth Circuit. Joey Gamble had not yet found his way to the law office of Agnes Tanner in Houston. The governor had denied a reprieve, in spectacular fashion. There were currently no new fires in Slone, but the National Guard was on the way. A depressing phone call, but then Robbie had expected little else.

He, Aaron, Martha, and Keith jumped into a minivan driven by an investigator Robbie had used before, and they raced off. The prison was fifteen minutes away. Keith called Dana and tried to explain what was happening in his life, but the explanation got complicated, and others were listening. She was beyond bewildered and certain that he was doing something stupid. He promised to call back in a few moments. Aaron called the office and talked to Fred Pryor. Boyette was up and moving about, but slowly. He was complaining because he had not talked to any reporters. He expected to tell his side of the story to everyone, and it seemed as if no one wanted to hear him. Robbie was frantically trying to reach Joey Gamble, with no luck. Martha Handler took her usual pages of notes.

———

At 4:30, Chief Justice Milton Prudlowe convened the Texas Court of Criminal Appeals, by teleconference, to consider the Boyette petition in the case of Donté Drumm. The court had not been impressed with Boyette. The general feeling was that he was a publicity seeker with serious credibility issues. After a brief discussion, he called the roll. The
vote was unanimous; not a single judge voted to grant relief to Donté Drumm. The clerk of the court e-mailed the decision to the attorney general’s office, the lawyers fighting Donté’s appeals; to Wayne Wallcott, the governor’s lawyer; and to the law office of Robbie Flak.

The van was almost at the prison when Robbie got the call from Carlos. Though he’d been reminding himself throughout the afternoon that relief was unlikely, he still took it hard. “Sons of bitches!” he snapped. “Didn’t believe Boyette. Denied, denied, denied, all nine of them. Sons of bitches.”

“What happens next?” Keith asked.

“We run to the U.S. Supreme Court. Let ’em see Boyette. Pray for a miracle. We’re running out of options.”

“Did they give a reason?” Martha asked.

“Nope, they don’t have to. The problem is that we want desperately to believe Boyette, and they, the chosen nine, have no interest in believing him. Believing Boyette would upset the system. Excuse me. I gotta call Agnes Tanner. Gamble’s probably in a strip club getting plastered while a lap dancer works him over.”

———

There were no strippers, no stops or detours, just a couple of wrong turns. Joey walked into the law office of Agnes Tanner at 4:40, and she was waiting at the door. Ms. Tanner was a hard-nosed divorce lawyer who, when bored, occasionally volunteered for a capital murder defense. She knew Robbie well, though they had not spoken in over a year.

She was holding the affidavit and, after a tense “Nice to meet you,” led Joey to a small meeting room. She wanted to ask him where he had been, why it took so long, whether he was drunk, if he realized they were out of time, and why he lied nine years ago and had sat on his fat ass ever since. She wanted to grill him for an hour, but there was no time; plus, he was moody and unpredictable, according to Robbie.

“You can read this, or I’ll tell you what it says,” she said, waving the affidavit.

Joey sat in a chair, buried his face in his hands, and said, “Just tell me.”

“It gives your name, address, all that crap. It says you testified at the trial of Donté Drumm on such and such date in October 1999; that you gave crucial testimony on behalf of the prosecution, and in your testimony you told the jury that on the night of Nicole’s disappearance, at about the same time, you saw a green Ford van driving suspiciously through the parking lot where her car was parked, and that the driver appeared to be a black male, and that the van was very similar to the one owned by Donté Drumm. There are a lot more details, but we don’t have time for details. Are you with me, Joey?”

“Yes.” His eyes were covered, and he appeared to be crying.

“You now recant that testimony and swear that it was not true. You’re saying that you lied at trial. Got that, Joey?”

He nodded his head in the affirmative.

“And it goes on to say that you made the anonymous phone call to Detective Drew Kerber in which you informed him that Donté Drumm was the killer. Again, lots of details, but I’ll spare you. I think you understand all this, Joey, don’t you?”

He uncovered his face, wiped tears, and said, “I’ve lived with this for a long time.”

“Then fix it, Joey.” She slapped the affidavit on the table and thrust a pen at him. “Page five, bottom right. Quickly.”

He signed the affidavit, and after it was notarized, it was scanned and e-mailed to the Defender Group office in Austin. Agnes Tanner waited for a confirmation, but it bounced back. She called a lawyer at the Defender Group—it had not been received. There had been some problems with their Internet server. Agnes sent it again, and again it was not received. She barked at a clerk who began faxing the five pages.

Joey, suddenly neglected, left the office without being noticed. He at least expected someone to say thanks.

———

The prison in Huntsville is called the Walls Unit. It’s the oldest prison in Texas, built the old way with tall, thick brick walls, thus the
name. Its storied history includes the incarcerations of once-famous outlaws and gunslingers. Its death chamber has been used to execute more men and women than any other state. The Walls Unit is proud of its history. A block of the oldest cells has been preserved and presents a step back in time. Tours can be arranged.

Robbie had been there twice before, always hurried and burdened and disinterested in the history of the Walls Unit. When he and Keith walked in the front door, they were met by Ben Jeter, who managed a smile. “Hello, Mr. Flak,” he said.

“Hello, Warden,” Robbie said grimly, grabbing his wallet. “This is Donté’s spiritual adviser, the Reverend Keith Schroeder.” The warden shook hands cautiously. “Wasn’t aware that Drumm had a spiritual adviser.”

“Well, he does now.”

“Okay. Give me some ID.”

They handed Jeter their driver’s licenses, and he gave them to a guard behind a counter. “Follow me,” he said.

Jeter had been the warden at Walls Unit for eleven years, and every execution belonged to him. It was a duty he assumed but didn’t ask for; it was just part of the job. He was noted for his detachment and professionalism. All movements were precise, all details followed without variation. Texas was so efficient in its death work that other states sent over prison officials for consultation. Ben Jeter could show them precisely how it should be done.

He had asked 298 men and 3 women if they had any last words. Fifteen minutes later, he declared them all dead.

“What about the appeals?” he asked, one step ahead of Robbie, two ahead of Keith, who was still in a daze. They were zipping down a hallway, its walls lined with fading black and whites of former wardens and dead governors.

“Doesn’t look good,” Robbie said. “Couple of balls in the air, but nothing much.”

“So you think we’ll go at six?”

“I don’t know,” Robbie said, unwilling to offer much.

“Go at six,” Keith said to himself. As if they were catching a flight or waiting for a kickoff.

They stopped at a door and Jeter waved a card. It opened and they stepped outside, walked twenty feet, then entered the death house. Keith’s heart was pounding, and he was so dizzy he needed to sit down. Inside, he saw bars, rows of bars in a dimly lit block of cells. There were guards in the way, two men in bad suits, the warden, all looking at the holding cell.

“Donté, your lawyer is here,” Jeter announced, as if he were delivering a gift. Donté rose to his feet and smiled. Metal clanged, the door slid open, and Donté took a step. Robbie grabbed him, clutched him, whispered something in his ear. Donté squeezed his lawyer, the first real human contact in almost a decade. Both were crying when they separated.

Next to the holding cell was the visiting cell, a space identical except for a wall of glass behind the bars that allowed privacy as the lawyer met with his client for the last time. The rules allowed one hour of visitation. Most condemned men saved a few minutes for the last prayer with the prison chaplain. The rules stated that the hour of visitation ran from 4:00 p.m. to 5:00 p.m., leaving the inmate all alone at the end. Warden Jeter, though a stickler for the rules, knew when to bend them. He also knew that Donté Drumm had been a model prisoner, unlike many, and that meant a lot in his business.

Jeter tapped his watch and said, “It’s 4:45, Mr. Flak, you have sixty minutes.”

“Thank you.”

Donté entered the visiting cell and sat on the edge of the bed. Robbie followed him and sat on a stool. A guard closed the glass door, then rolled the bars in place.

They were alone, knees touching; Robbie put a hand on Donté’s shoulder and worked to keep his composure. He had agonized over whether he should bring up Boyette. On the one hand, Donté had
probably accepted the inevitable and, with an hour to go, was ready for whatever stood beyond. He certainly seemed to be at peace. Why upset him with a wild new story? On the other hand, Donté might appreciate knowing that the truth would finally be known. His name would be cleared, even though posthumously. The truth, though, was far from certain, and Robbie decided not to mention Boyette.

“Thanks for coming, Robbie,” Donté said in a whisper.

“I promised I’d be here until the end. I’m sorry I couldn’t stop this, Donté, I’m truly sorry.”

“Come on, Robbie, you did the best you could. You’re still fighting, aren’t you?”

“Oh yes. We have some last-minute appeals still out there, so there’s a chance.”

“How much of a chance, Robbie?”

“A chance. Joey Gamble has admitted he lied at trial. He got drunk last night in a strip club and admitted everything. We secretly recorded it, and filed a petition this morning. The court turned us down. Then around 3:30 this afternoon, Joey contacted us and said he wants to admit everything.”

Donté’s only reaction was to slowly shake his head in disbelief.

“We’re trying to file another petition, one that includes his sworn affidavit, and it gives us a chance.”

They were hunched over, their heads almost touching, speaking in whispers. There was so much to say, and so little. Robbie was bitter at the system, angry to the point of violence, burdened by his lack of success in defending Donté, but most of all he was, at that moment, just sad.

For Donté, the brief stay in the holding cell was confusing. Ahead, not thirty feet away, was a door that led to death, a door he preferred not to open. Behind him was death row and the maddening existence of isolation in a cell he preferred to never see again. He thought he was ready for the door, but he was not. Nor did he wish to ever see Polunsky again.

“Don’t beat yourself up, Robbie. I’ll be all right.”

Keith, with permission, stepped outside and tried to breathe. It had snowed Monday morning in Topeka; now it felt like eighty degrees in Texas. He leaned against a fence and stared at the razor wire above him.

He called Dana and told her where he was, what he was doing, what he was thinking. She seemed as astonished as he was.

———

With the Drumm matter out of the way, Chief Justice Milton Prudlowe left his office and hurried to the Rolling Creek Country Club in west-central Austin. He had a 5:00 p.m. tennis match with a major contributor to his last, and next, campaigns. In traffic, his cell phone rang. The clerk of the court informed him that they had received a call from the Defender Group, and that another petition was in the works.

“What time do you have?” Prudlowe demanded.

“Four forty-nine.”

“I get so tired of this crap,” Prudlowe said. “We close at five, and everybody knows it.”

“Yes, sir,” the clerk said. The clerk knew quite well that Justice Prudlowe despised the last-minute Hail Marys thrown by desperate defense lawyers. The cases drag on for years with little activity, then with hours to go, the lawyers suddenly shift into high gear.

“Any idea what they’re filing?” Prudlowe asked.

“I think it’s the same thing they filed this morning—an eyewitness is recanting. They’re having trouble with their computers.”

“Gee, that’s original. We close at five, and at five I want the door locked, and not a minute after. Understand?”

“Yes, sir.”

At 4:45, Cicely Avis and two paralegals left the Defender Group offices with the petition and Gamble’s affidavit. All twelve copies. As they sped through traffic, Cicely called the clerk’s office with the heads-up that they were on the way. The clerk informed her that the office would close at five, the usual time, five days a week.

“But we have a petition that includes a sworn affidavit from the only eyewitness at trial,” she insisted.

“I think we’ve already seen that one,” the clerk said.

“You have not! This has a sworn statement.”

“I just talked to the chief justice. We close at five.”

“But we’ll be a few minutes late!”