ZUGZWANG

My longtime friend, Father Joe, sits across the table from me as we play our one thousandth and something game of chess. I’ve known him since I was a teenager. He was a regular on the hard-courts of Central Park in San Mateo, as well as the pastor at St. Matthews church, where all the kids in my family attended grade school at some point. There’s a tennis court here at San Quentin Penitentiary, but I don’t have the privilege of using it. I guess it would be bad form if the media saw someone on death row enjoying himself with a racket in hand. Plus, Joe says it’s a good thing for me because he’d kick my ass (if it weren’t for his trick knee). He actually phrases things in that manner with me - his excuse being that he’s an Irishman.

Although I was raised catholic, I turned from that religion when I attended a catholic high school. So much just didn’t make sense to me. Father Joe has never attempted to dissuade me from that decision, nor tried to reconvert me. From day one he’s been my staunchest supporter. The day after my arrest he showed up at the county jail in Redwood City. When we were alone, he put his hands on my shoulders, looked into my eyes and said, “I have to ask you face to face, Did you do it?”

I immediately replied, “No, Joe. I did not.”

“OK then. I see in your eyes that you’re telling the truth. I also believe you because I know your heart, which wouldn’t allow you to murder anyone.”

It was six years ago that I first stepped out of the van and caught my first glimpse of death row. Although this imposing building on the top of a hill overlooking San Francisco Bay was recently built to replace the original 100 year old facility, I had chills as I felt a sense of the history here. The writer in me could discern the hundreds of stories that transpired here, full of angst, tragedy and pain. The artistic side of me detected the darkest side of humanity. Had I painted what I felt it would look like a cover for Dante’s Inferno.

I’d always considered adaptability to be one of my strengths; but imprisonment is such a different stage. I wondered how I would fit into this environment. I had the same decision to make at county jail when I was first immersed into that den of iniquity, occupied by druggies, rapists, gang members and worse. I wrote in my journal that as a white collar guy, I felt like a pair of feet in a sea of hands. Yet, we were all in the same boat, so I treat my peers like I would anyone else, while staying true to who I was. I decided that I would do the same here at infamous San Quentin Prison.

When you are aware that your life may soon end the value of life lies not in the length of days, but how you live those days. I could have chosen to spend my days dwelling in the injustice of what’s happened to me and fostered hatred for the people who’ve wronged me and let it fester, but that would be an exercise in futility since there’s nothing to be gained by allowing negativity to consume the valuable time I have left. Instead, I have chosen to live in the time I have remaining with dignity and grace, bereft of anything inimical, negative, or ambiguous.

There’s a certain balance to the universe. I’ve heard it said that every adversity, failure or heartache carries with it the seed of an equal or greater benefit. I’ve endeavored to tilt the balance somewhat so that the world will be a better place due to my life and death. I returned what the world has given me by becoming the best version of myself, trying to be compassionate and giving to those in my sphere, and those who’ve reached out to me in so many ways.

I have so much more free time than I ever had in the outside world, leaving me with a lot of time for reflection and reverie. I’ve noticed that I now see profundity in minutia, in things I’d have totally ignored before. I suppose that everything has more importance and value when you might not ever see them again. The hardest thing about incarceration to me isn’t being behind bars or the isolation; it is the deprivation of the ability to love and be loved as humans are wired to do. I miss touching, hugging, kissing, and think often about wrapping my arms around my loved ones; but alas those acts are now merely intangible memories wrapped in my thoughts, and are now lost in time and space. Kierkegaard wrote, “The most painful state of being is remembering the future, particularly the one you no longer have.” I wish he hadn’t been right.

So, I’ve had the proverbial Sword of Damocles hanging over my head for eight years. Do I fear dying? There’s a two part answer to that question. Dying hasn’t been on my mind at all. I believe as a protective measure, I’ve rationalized that billions have done it before me; my death will just be a few years earlier than I’d like. Montaigne, Bacon, Thoreau, Roosevelt and others contributed a version of “There is nothing to fear but fear itself.” I honestly don’t fear being executed because fear involves the “what ifs” and the unknown. You don’t fear what you know is inevitable. I’ve had plenty of time to be accepting of my fate, whichever way it may go.

This attitude is quite contrary to what I was like prior to my present situation. I was always in control of everything in my sphere of influence. Then, I was swept along in what I term reverse serendipity - no longer the master of my fate. I no longer controlled events; the events controlled me. My arrest, judgments, appeals have all been contrary to law and logic. But that’s a story that will be told another time - perhaps by someone other than myself if and when the truth becomes evident.

Back to the present. Father Joe insisted on being here to offer his support for me. He didn’t want me to be alone when I receive the final decision today on whether my execution will occur tomorrow.

Lethal injection is used for capital punishment in at least 36 states, most of which use the same combination of drugs: sodium thiopental (a barbituate to induce anesthesia), pancurium bromide (a muscle relaxant that paralyzes all the muscles in the body), and potassium chloride (a salt that speeds the heart until it stops).

This protocol was developed in 1977, but has never been sanctioned by the FDA. There’s no record of a medical or scientific inquiry into whether this is the best method, and there’s no medical evidence to support this approach.

Hospira Inc. in Illinois, the only maker of sodium thiopental has faced a shortage of the raw materials needed to make the drug. In addition to the shortage, the doses of the drug some states have stockpiled may not be viable and there’s no evidence of the validity of the purported shelf life of 48 months. Most states perform executions infrequently, so don’t have a supply of new doses.

To circumvent this shortage, some states procured doses from international sources that may be suspect - one source being Kayem Pharmaceuticals in India. Another state broke the law by importing the drug from Dream Pharma, a British distributor operating out of the back of a driving school in London.

The European Union has established guidelines to abolish the death penalty and contributed millions to anti-death-penalty organizations in the U.S. Furthermore, an EU export ban on any drugs that can be used for lethal injections has made U.S. executions more difficult to perform.

How humane is lethal injection? The search for a “humane way” to execute people is an attempt to make executions easier to accept for those who order and carry out the killings - including governments who desire to appear more humane in the name of the public for which the killing is effected.

How do the powers-that-be claim that there’s no pain associated with lethal injection? Would they be willing to self-test a dose of sodium thiopental? In the U.S. many lethal injections have been botched. Some have lasted 20 to 60 minutes and prisoners have been seen gasping and convulsing during their executions. Autopsies have revealed foot long chemical burns to the skin and needles have been found in soft tissue. Remember that lethal injection was chosen to negate the horrific images associated with other forms of condemned killing.

All codes of ethics oppose health care participation in death penalty killings. Yet, in many states health care professionals are required to assist in the executions and in some cases carry out the killing.

My attorneys asked the state to identify the source of the drugs that would be used in my execution. When that request was denied, they immediately requested a stay of execution, contending that I could suffer painfully if the anesthetic came from an unknown or unreliable source - constituting cruel and unusual punishment as defined by the Eighth Amendment. The Northern California District Court blocked my execution, but that decision was overturned on appeal by the Ninth Circuit Court of Appeals. I will hear today if the U.S. Supreme Court agrees with the Court of Appeals that my execution will occur tomorrow at noon. I’m too nervous to think about it. I’m so glad that Father Joe is here to keep me distracted.

Laura, one of my attorneys, is staying at her family home in Mill Valley, which is only five minutes away. She’ll be here as soon as she gets word from our lead counsel, Barry, who is presenting my case to the high court.

At 1:20 Laura is at the door and is let in. She knows Joe very well since they’ve run into each other often while visiting me. I’ve come to consider her a good friend over the last two years. As she approaches us she looks nervous as she sits down and says, “I’m so sorry, Joseph. It was close: 5 to 4. they ruled that a condemned prisoner doesn’t need to know the source of the drugs used in his execution.”

She hugged me tight as she whispered, “I’m so, so sorry. I can’t believe we were so close.” As she released me there were tears in her eyes - the bad news hurt her as much as it affected me.

I took her face in my hands and said, “It was an uphill battle from the start. You did your very best. I’m so thankful to you and Barry for that. So don’t cry. While I hoped for the best; I’ve been preparing for the worst.”

As I looked at Joe across the table his hands were covering his face, elbows on the table. I then glanced at the chessboard and recognized that he had mate in two moves. Zugzwang! on two counts! (In chess Zugzwang is the moment when one realizes that you’ve lost)

I suddenly felt restless, needed to stand up and move around. I really needed to be alone with my thoughts, so I said to Joe and Laura, “I have a lot of last minute things to take care of, lots of calls to make and letters to write and send off. so I’ll say bye for now, OK? Thanks for being here. I’ll see you tomorrow.” I hug each of them in turn as they leave.

At this point I need to be elliptical. It’s a sublime thing to be strong through your sorrow; but that’s what I needed to be as I said my last goodbyes. To elaborate further would be much too painful.

Of course, I hardly slept that night. A continuous loop played in my head of times I’d shared with everyone I’d loved from my earliest childhood memories to the special times I had shared with my darling daughter, Kauai, just prior to my arrest. In the silence and darkness of my cell each scene played out vividly like it was just happening. I think I used up all my tears.

I must have dozed off around 4:30 a.m. and woke up when my favorite CO, Carl, woke me up. He had a little white paper bag in one hand and a Grande Starbuck’s cup in the other. He smiled as he said, “I got chocolate croissants and cream cheese danishes for you - and of course, cream and sugar for your coffee.”

“I don’t need to tell you that you’re a prince among COs, Carl. Thank you - not just for this; but for all the kindness and consideration you’ve shown me since I’ve known you.”

“Hey, you helped me with that trust and will thing. You didn’t have to do that.”

“I was glad to have helped and it’s great that it all worked out. Now, hand over those pastries!”

About 11:45 my last meal was delivered. I had gone big on my request. The FRENCH LAUNDRY in Yountville is my favorite restaurant. My friend, Louis, asked the owner, Thomas Keller, if they could provide my last meal; and he said he’d be glad to. Even the warden approved the request. I asked for what I’d had the last time I dined there: a garlic shrimp appetizer; Caesar salad; a main course of beef wellington; and creme brulee’ for dessert. It was wonderful! I enjoyed it so much that I barely gave what would happen in two hours a thought.

Father Joe came by at 1:00 and I gave him the croissant I’d saved for him. He said, “I don’t know how you could eat anything; I don’t think I’d be able to. I prayed for you all night.”

“I appreciate the thought, really.”

“Joseph, I still want:want to give you my final blessing.”

Even though I’m agnostic, I decided that if it made Joe feel better, why not? It won’t hurt me; and if he happened to be right about things… “Joe, do it.”

So I apparently was now absolved of all my sins, both real and imagined. Joe chose to finish it off in latin, ending with “In nomini padre, et filii, et spiritu sanctu.” Memories from the recesses of my mind suddenly came to light about when I had been an altar boy at St. Philomena church in Honolulu. For two years I had assisted Father Toomey during masses, funerals and weddings. I hadn’t thought about that in decades.

At 1:30 the warden came to let me know that it was time to get ready. I changed into a jumpsuit that Carl had given me. I gave Joe a bundle of mail to send out for me, then hugged him as I said, “Thank you for being there, for being you.”

Two guards appeared and escorted me to the execution room. There was an inset in the wall with six glass tubes filled with the drugs that I had come to know so well. The table looked like it could be some kind of workout station at a gym. I thought it ironic that it was shaped like a cross. One of the guards led me to my death bed which was tilted at a forty five degree angle. I backed up to it, put both feet on the footrest and laid back as I was told to do. The table was then put into a horizontal position. My wrists were strapped first, then a harness like a fighter pilot would wear was strapped across my chest. Then my waist and thighs were strapped down. The straps were the size used by truckers to hold their cargo down - I wasn’t going anywhere. Then, a needle was inserted into my arm. I didn’t feel a thing.

There was an awkward silence for some time until the table was brought back to a forty five degree angle so I’d be visible to the witnesses and vice versa. The only ones I recognized was Father Joe, Laura, and oh, there was the gal from the Chronicle I’d asked to tell the world what my execution was like, since she was doing a piece on my case that was quite objective to me. I’d insisted to everyone else I knew that they not come.

The warden asked if I’d like to say anything. I could have said so much; but I chose to keep it simple and dignified, I said, “I am innocent.”

The table was then slowly returned to its original horizontal position. I felt really cold. The warden said to the tech: “Go.”

I felt a sudden pressure when what I knew to be sodium thiopental enter my vein. It’s supposed to relax/anesthetize me. After a few minutes I felt pressure all over and heat coursed throughout my body. Then I felt like I was burning from the inside. It really hurt! I felt myself grimacing and my fists clenched. It’s not supposed to be like this! I’m screaming more intensely than I ever have before - silently.

I wake up in a sweat, totally drenched. I feel like I’ve just had a workout. I had numerous versions of this dream almost nightly from my arraignment to the day a year and a half later, when the DA took the death penalty off the table because (1) he only had circumstantial evidence; and (2) it’s harder to get a conviction in a tight case when a jury’s guilty verdict will end someone’s life.

The mind can’t always differentiate what’s real and what’s imagined. I feel like I’ve been executed over and over in a hundred different ways. Considering the possibility of alternate dimensions and dream states, perhaps I’m actually still awaiting execution and am dreaming about serving a life sentence in which I have dreams about an imaginary execution……