Midnight. A blues song plays, scratching the air with the romance of desolation. A few people are still here. My feet rest on the table. I'm drinking Jack Daniel's from a glass. On the other side of the table, Dale Baich has a glass of his own.
Baich is a close friend. As recently as two years ago, I had never heard of him. Now, I can't conceive of not knowing him, and the time when I didn't know him seems unreal.
Since we became friends, we've closed many a blues show in the late or early hours, sitting at the bar with the musicians as the crowd dwindled.
But tonight we're not in a bar. We're in Baich's office. The blues song is coming from the stereo. And, though there is Jack Daniel's in my glass, the glass he drinks from contains only water.
At 3 o'clock tomorrow afternoon, Michael Poland will be killed as I watch. I know this. I do not think it or suspect it or opine it or intuit it. I know it.
Baich has filed a motion arguing that Poland belongs to the feds and not the state, and that he has to serve a 100-year federal sentence before the state can kill him. The feds have responded by saying they don't mind if the state kills Poland. Baich has alleged juror misconduct. The Arizona Supreme Court has refused to consider the allegation, saying it is too late. Baich is now trying to argue that Poland is insane, and therefore, under the law, is incompetent to be executed. This morning, during Poland's clemency hearing, the psychologist who originally found Poland to be competent declared that he is now incompetent. The Board of Clemency voted four to one to kill him anyway.
So he's going to be killed tomorrow, and I know it. Everyone involved knows it, except for two people.
Poland doesn't know it, because he's crazy and thinks he's indestructible. He believes he can control his environment with the power of his mind, and that the state can only kill him if he allows it.
And Baich doesn't know it, though I can tell that on some level he knows it only too well. But it's my job as a writer to believe what the facts tell me, to bear witness and report what happens. Baich is a death-row lawyer, and his job is to keep Michael Poland alive.
Dale Baich is 42 years old. He's an angular man with short, thinning hair and brown eyes. He came to Phoenix from Cleveland, Ohio, less than two years ago.
His life in Phoenix is streamlined. He works long hours, watches baseball, hangs out with his friends and goes to blues gigs. He's written a couple of profiles of bluesmen for New Times. Outside of his work, there is very little he takes seriously.
He has an air about him of complete calm. When he gets angry, only those of us who know him well can see the signs. In the time I have known him, I don't believe I have ever heard him raise his voice. Even to his close friends, he's often inscrutable, and there is no one better at keeping a confidence. Various friends, when bringing gossip to him, have had the following dialogue:
"Hey, Dale, you're not going to believe this. I just found out that X has . . . "
"Oh, yeah. I know."
"How the hell do you know?"
"He told me."
"Couple of weeks ago."
"How come you never said?"
"He asked me not to."
The past few days, Baich has been anything but inscrutable. Michael Poland is the first of his clients to have an execution date set since he came to Arizona, and Baich is so different from his usual self that I barely recognize him. He's not mean, but he's uptight and crabby.
When talking on the phone with him about Poland, I can feel his defensiveness, and it's as if I were dealing with just another lawyer who's trying to protect his client from unfavorable media.
I understand why. Baich has been here before. In July 1996, he watched one of his clients die in the electric chair in Nebraska. Baich had known John Joubert for six years. It's something you don't get over.
Last January, as I was preparing to witness an execution here in Arizona, I asked Baich if he was still haunted by Joubert.
"Every fucking day," he answered, his usual humor vanishing. "I'll be in the shower, and I'll just see him dying."
The Federal Public Defender's Office is on the eighth floor of a building on Central Avenue. Go inside and take the elevator to the eighth floor, and you find yourself in a dark reception area, your way barred by more locked doors. But, tonight, the darkness and silence are deceptive.
Inside the office, people are working with focused desperation. Investigators have assembled every shred of evidence that conceivably could be used in an argument for a stay of execution. Now Baich and his assistants are relentlessly writing motions and filing them. One of his assistants came from Ohio to help him. She's been at it since 7 o'clock this morning. Normally a vibrant, healthy-looking woman, she now looks haggard; a rash is breaking out on her face.
I go into Baich's office. It's a big room, decorated with pictures of baseball fields, bluesmen, and a photo of Matthew Cook sizzling in the Louisiana electric chair. Against one wall are four seats from Cleveland Stadium. Baich bought them when the stadium was torn down in 1996.
He says hello curtly, then forces a smile and says, "You can watch me sit here. That'll be exciting."
"How's it going?" I ask him.
"It's all going to shit. Everything's getting refused." He turns back to his work.
Nobody could be more passionately opposed to the death penalty than Dale Baich. But you'd never know it from watching him at work. He leaves his ego out of it and works for his client, not his own beliefs.
Baich once told me, quoting from a book by one his colleagues, "The war against the death penalty has been lost." If Baich is going to try to get the death penalty abolished--and he knows there's no way it's going to be abolished anytime soon--he'll do his campaigning on his own time. While at work, he never wastes time discussing moral arguments about the death penalty. His strategies are based purely on legal procedure. In Poland's case, he contends that it would be illegal to kill his client.
The fact that Baich works within the system should not be taken to mean that he accepts or respects it. He knows it's iniquitous.
"The government uses the death penalty as a bargaining chip," he says. "If Poland had pleaded guilty, he was looking at 15 years. But they told him that if he went to trial, they'd press for the death penalty. They try to force you to plead so they don't have to prove their case. If you don't think you're guilty and you want to defend yourself, they tell you they'll kill you if you lose."
The work goes on, and will until nearly 2 o'clock in the morning. The only dialogue is terse discussion of strategy. Earlier tonight, Baich and one of his assistants--the one from Ohio--went to Florence to visit Poland. The assistant has taken the experience badly.
At one point, she takes a break, and we go outside and talk. She's still clutching at straws, hoping the execution will be called off. But she knows. "It's going to happen, isn't it?" she asks me, her eyes wet.
"Yeah," I say. "I think so. They killed Jose Ceja even when the judge who sentenced him asked for his clemency. There's nothing sympathetic about Poland."
As we talk, Poland is locked up alone. I wonder if, in some clearing in the wild forests of his madness, he knows that he's not scheduled to see another night.
I read a response from Royce Lamberth, U.S. District Court Judge for the District of Columbia, refusing to grant a stay for Poland. Lamberth is not known for his harshness, but his tone here is vitriolic.
"Twenty-one years of due process is enough," he writes. "Plaintiff does not deserve another day."
And I don't believe he's going to get another day.
It's afternoon now. Before driving to Florence to witness Poland's execution, I call Baich's office and speak to his assistant. I ask if anything has happened, and she says no, though they're waiting to hear about one petition they've filed.
Baich and I don't drive to Florence together. I have to be there at 2 o'clock, an hour before the execution. Baich wants to get there earlier, to spend some time with Poland. It's a bad idea to drive yourself after watching an execution, but Baich is traveling with one of his investigators, Lisa Eager. Other people from his office will be at the prison. I decide I'll enlist one of them to drive me home.
There's something about the demeanor of the people who carry out executions that tells you that, whatever they say about it, even they know it's wrong. The officials are excessively friendly, and cater to a witness's needs with an apologetic heartiness. They take you into the waiting room, and talk amongst themselves in subdued tones.
After its first couple of executions this year, the Department of Corrections abandoned its customary practice of killing people at just after midnight, and started doing it in the early afternoon. There is a good reason for this. A midnight execution, with people outside on the vigil bearing candles, has the air of an event. And, since the DOC started its conveyor belt of death rolling this year, it doesn't want executions to be events. It wants them to be routine, and to go unnoticed. Have them in the afternoon, and it's harder for working people to attend the vigils. And candles don't have much dramatic effect in the afternoon sun.
But there's one apparent advantage for the witnesses. When I witnessed a midnight execution, the only refreshments provided in the waiting room were prison tea and drinks from a vending machine. This afternoon, however, I walk into the room and find that they've laid on a spread. Chicken sandwiches, cheese sandwiches, fruit salad, soft drinks. Whatever I might think of the DOC morally, its catering doesn't leave much to be desired.
Aside from officials, the other occupants in the room are Poland's son Kent, Poland's daughter-in-law and one of Baich's paralegals. Poland's son introduces himself to me, but aside from that we don't talk. Kent's wife sits and cries quietly. The paralegal is in equally bad shape.
Dale Baich and Lisa Eager are driving to Florence. Baich's cellular phone rings. It's his assistant. She tells him that Samuel King, U.S. District Court Judge in Hawaii, is willing to consider a stay of execution on the grounds that Poland is incompetent. But he's not prepared for any delays. He wants to have the hearing now. As in right now.
Baich pulls the car to the side of the road. They do the hearing by phone. There's Baich, his Tucson counterpart Denise Young, the judge, and four people from Attorney General Grant Woods' office. The case is argued. The AG's people aren't happy about it.
"Judge, if you grant this, tomorrow morning they'll all be claiming to be incompetent!" one of them protests.
In the waiting room for the inmate's witnesses, Poland's daughter-in-law is still crying. The paralegal looks like she's about to. Poland's son sits in silence, his eyes half closed. I sit beside him, whispering a prayer.
They told us a little while ago that the execution would now be at 5 o'clock, rather than 3 o'clock. They gave us no explanation. Now an official comes in and says, "Okay, folks. There's not going to be an execution today. You're free to go."
Beside me, Kent Poland's breath comes out so hard that I actually feel it. He opens his eyes. Otherwise, he doesn't react. He quietly asks the guy, "Would it be okay for me to see my dad?"
Later, another death-row lawyer will tell me, "What he [Baich] did was absolutely incredible. It's unheard of, getting a stay from the district court at the last minute. The guy's unbelievable. He never misses a thing. If you write about this, don't let him give the credit to anybody else. It's all him."
"It was a team effort," Baich will say. "A lot of people worked hard on this."
Baich shows up at the prison, and his face is still as impassive as it has been for the past few days. We all walk out to the parking lot. He tells Kent Poland and his wife he'll talk to them next week and discuss what happens next.
His colleagues are waiting by his car. One of them hugs him.
He decides to ride back to Phoenix with me. We'll meet his colleagues back at his office, then head for a bar.
He takes off his jacket, throws it in the back of my car, and loosens his tie. His expression hasn't changed. I start up the car, and he laughs out loud. "Fuckin' A," he says.
As we drive to Phoenix, he makes and takes phone calls from lawyers, from the media and from his girlfriend in New Orleans, with whom he'll be spending the next few days. Then he'll be coming back to Phoenix for the next chapter in the Poland story, when the judge considers whether Poland's competent or not.
I tell him I had been certain that Poland would be executed, and that everyone else in the know agreed with me, how I thought Baich was deluding himself when he said there was hope. He grins and shrugs.
As we reach Mesa, Baich suggests that I take the 202 to Phoenix, because the I-10 will be more congested. I tell him I think the 202 will be worse.
"I've been right about everything else today," he says. "Take the 202."
Contact Barry Graham at his online address: firstname.lastname@example.org
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