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Final argument: Florida lawyer navigates capital punishment's machinery

MONTICELLO — The second-to-last appeal — a Hail Mary that the attorney allowed his timid hopes to cling to — had been denied 12 hours before in a call that came after his bedtime and left him uncharacteristically silent. Baya Harrison III thanked the circuit court clerk, mourned for a few minutes and then forced himself out of bed for his last attack: a filing with the U.S. Supreme Court arguing that, in 18 hours, John Ruthell Henry should not be executed at the Florida State Prison at Starke.

"Look. Look. I've never done anything like this before." Harrison clutched the phone receiver and paced his home office after spending most of the night writing. It was Wednesday morning now. On the other end of the line was his Supreme Court contact in Washington, an emergency applications clerk. "But dang it, it's just possible that we might file — by 1 p.m. today — a writ in your court. Listen. Listen. It's a real long shot, and I'm clearly late, but we have been up all night trying to pull something together. Believe me, Danny, I am not one of those frizzy-haired anti-death penalty types. Just put yourself in my place. I took an oath to defend this guy. It is my ethical obligation to go down to the wire. Okay? Okay."

Seven weeks after the botched execution of an Oklahoma inmate, who twisted in pain and lived for 43 minutes after being injected with lethal drugs, four men in four states had been scheduled to die in one 24-hour period. One of the four, a rapist and murderer, had been executed the evening before in Georgia. In Missouri, a man who had committed a double homicide had been executed at midnight. In Pennsylvania, a man who killed a police officer had received a stay.

And here in Florida, the execution of murderer John Henry had come down to the final grind of the modern death penalty: a convicted killer who was sentenced to die, a state trying to carry out that sentence and a defense attorney trying to keep his client alive.

Harrison looked around for a clock. "Damn, what time is it?" he asked his wife, Barbara.

It was almost 11 a.m. The execution was scheduled for 6 p.m. He was tired. He was 72 and out of blood pressure medication. He'd been on this case for 14 years, assigned by a judge who knew he wouldn't say no, but he hadn't been lying to the Supreme Court clerk. He believed in the concept of the death penalty, thinking it a deterrent against future crimes, but he didn't believe it should be easy. He didn't believe it should happen unless all valid legal issues had been considered.

Until a few weeks ago, he thought that in Henry's case, they had been. Henry was guilty. He'd confessed to killing his wife and her child. He had two separate trials, long before Harrison even met him. The paperwork from his motions and appeals after his convictions filled 15 crates. He had been on death row for 27 years and was now 63 years old.

• • •

Then, on May 27, the U.S. Supreme Court released a decision pertaining to a different Florida death row case. The decision said that intellectual disability could no longer be determined by a strict IQ test — a score below 70 was previously required to prevent an execution — and that other environmental factors should also be considered. Henry's IQ was 78.

Harrison filed a motion to the Florida Supreme Court, saying that in light of the U.S. court's recent decision, Henry should be examined again. It was denied. Harrison then appealed to the 11th U.S. Circuit Court of Appeals but was denied there as well.

But when he opened the 11th Circuit's opinion, he was stunned to learn that it wasn't unanimous. He had lost by a 2-1 vote. "One vote," he told Barbara. "Dang, if it had gone the other way."

So now his legal researcher in Gainesville was emailing in paragraphs for the writ of certiorari as fast as he could type them, and Barbara was proofreading them as fast as she could read them, and Harrison realized it was his scheduled time to make a call he knew was his duty. He hadn't been looking forward to it.

"John? John, I need to bring you up to date on where we are." On the other end of the line was John Henry, the man he was trying to save, the man who every few years sent letters trying to fire Harrison, complaining that the lawyer wasn't doing enough.

"This is the situation," Harrison told Henry. "We took a real hit last night. However, we've got one thing left." He explained the Supreme Court writ, and that it meant he would spend the afternoon working rather than making the two-hour drive to the penitentiary to witness the execution as planned.

"Frankly, John, it is our last shot. It is our last hope. The odds are stacked against us, but we might make it. We might be able to stop this execution. You told me you didn't need me holding your hand, you wanted me fighting in the courts, and that's what I'm doing. I got to tell you, man, it's a long shot. This may be the last time we talk."

He hung up and was quiet for a minute. Barbara looked at him. "Well, Baya?"

"He told me he appreciated the work I had done," he said, mildly surprised — the first time he could immediately remember Henry expressing gratitude for his services. "And then he called me Brian." His client had gotten his name wrong.

In Harrison's office, a small, wood-paneled room on his farm just east of Tallahassee, the entire essence of Henry's case had been culled to three fat manila folders.

In 1976, Henry stabbed his common-law-wife to death in the front seat of the car while her children sat in the back. He went to prison, was released after seven years and remarried Suzanne Henry, who believed his first wife had been killed in a car accident. Shortly before Christmas 1985, Henry went to Suzanne's house —the couple had recently become estranged — to talk about a present for her 5-year-old son, Eugene. They argued, Henry took a kitchen knife and he stabbed her in the throat until she was dead. Then Henry took Eugene from the house, drove him around, bought fried chicken, bought crack cocaine and used the same kitchen knife he'd brought from the house to kill the boy.

This was the man Harrison was trying to save.

• • •

At 12:30, Harrison's legal researcher in Gainesville phoned, saying that he thought the writ was ready to go. For the last chance on a 27-year-old case, Harrison asked Barbara to attach the files and press send.

Then he waited for a phone call from the Supreme Court clerk and, against his better judgment, hoped.

Harrison's phone rang.

"Oh, Jesus. Oh, God," he said, as he searched for the receiver. "Yessir," he said when he answered, but the call had nothing to do with John Henry. It was another case, a client who wondered why Harrison hadn't been returning his calls.

The phone rang again.

"Please, no," he begged, as picked up the phone. It was his daughter, calling to tell him what time her flight got in for an upcoming visit, and also calling to wish him a happy birthday. The fact that it was his birthday kept slipping his mind.

It was a little after 4 p.m. Two hours to go. He still hadn't gotten a call from the Supreme Court.

Maybe he wouldn't hear back anything from the court, he realized. Maybe they would do it and he wouldn't hear anything at all.

His heart rate was too high, he could feel it, so he pulled on a pair of battered shoes and left for a walk outside in the hope it would calm him down. He walked around his 50-acre farm. Past the chicken coop and the two rescue horses and the leaf-ridden swimming pool with the rickety diving board, through fields that needed mowing.

This would be his third execution in a 40-year career. The first client, Danny Rolling, was a serial killer who, when asked for his final words on the gurney, began to sing a country song he'd written for the occasion. The second was Oba Chandler, who'd killed an Ohio woman and her daughters vacationing in Tampa. They were bad, evil men. Harrison knew that. Was John Henry as bad? Harrison wondered. When Henry committed his crimes, he was a heavy drug addict who had now, through the circumstances of prison, been straight for 27 years. Would it be better to just leave him in prison, until his natural death?

When Harrison got back from his walk, he realized he never made plans to follow the execution from home. He didn't know how to learn when Henry died.

"What time is it?" he muttered. It was 5:40, and still nothing from the Supreme Court. The execution was scheduled to take place in 20 minutes.

According to Florida's death row procedures, Henry would already be strapped to the gurney, in a little room with a phone line that went straight to Gov. Rick Scott's office. Harrison could picture it; he had been present for his other two clients' executions.

"Fourteen years, and this is just the end. I hope I did everything. … But my God — when you kill three people and one of them was a young child — What time is it?"

It was 5:55.

Something he thought about sometimes: Henry never spoke of remorse, at least not to him.

It was 6 p.m.

In his office, he turned on the television, hoping for a reporter who would give updates on his client's death.

"Do you want to eat?" Barbara asked. Since she wasn't sure what else to do, she made chicken and spinach.

"I don't know," he said. "I don't want to be disrespectful."

"Did you try a Google search?" Barbara suggested. She leaned over her husband's shoulder while he pecked out a question into an empty search box: "Was John Henry executed today?"

Nothing. Nothing.

• • •

It was nearly 7 p.m. when the phone rang. A representative from the Supreme Court. Harrison listened. Barbara stood next to him. He raised his right hand. He balled it into a fist. He stuck out his thumb. And he pointed it down. He shook his head. Denied, just moments ago. The execution would now proceed.

He didn't quite know what to do. He guessed they should eat dinner. He guessed they should eat and wait.

The phone rang and Harrison reached for it.

"Is it over?" On the line was the attorney for the Department of Corrections. Harrison nodded. "The time of death was 7:43? Okay. Thank you for calling."

He hung up the phone and looked at Barbara, who had overheard the call.

"That's it," he said.

Final argument: Florida lawyer navigates capital punishment's machinery 06/20/14 [Last modified: Friday, June 20, 2014 9:39pm]

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