Death row and the cancer ward.

• Position: Editorial

On March 21, 2003, I argued a summary judgment motion before the United States District Court in Dallas on behalf of my client, Gary Sterling, who sought federal habeas corpus relief from a Texas death sentence. The Judge was well prepared, asking the kind of pointed questions that sharpen the issues. This argument could well be the most pivotal point in Gary's case, and I left the courtroom convinced that the Court would give serious attention to the matters addressed at the hearing.

Within three weeks or so, however, I was forced to seek an emergency change of counsel. The sense that I have abandoned my client is almost overwhelming. I can only hope that Gary, my client and my friend for some ten years, will understand. In the month following that argument, everything has changed.

About a week ago, my wife noticed that I was jaundiced and implored me to call the doctor the following morning. I had been fatigued for a couple of weeks, having filed a petition for rehearing en banc, and two cert petitions to the United States Supreme Court. I had worked that Thursday until six in the morning, filed by mail that afternoon, and struggled home to take a nap. Suzy observed my change in color when I awoke.

On Friday morning the resident on call in the clinic at the University of Arkansas for Medical Sciences (whose wife had once been a student of mine) focused on the possibility that I had hepatitis. After having blood taken, I went on to the law school to teach a class. I was tired, which caused me to give perhaps the most organized and slowly delivered lecture of the term. When I returned to my office, Suzy called to tell me that the internist supervising the resident wanted to admit me immediately. I was soon undergoing a bone marrow biopsy.

I spent the night believing that I had contracted hepatitis on a recent trip to San Antonio or tuberculosis while visiting the death facility of the Texas Department of Criminal Justice in Livingston, or maybe that last year's tick bite had left me with some rare, but treatable, viral infection. But the next morning, I learned that the diagnosis was leukemia. The hematologist stopped by to confirm that I had acute myelogenous leukemia, which is known to the medical community as "AML." Her preliminary discussion of survival was grim, leading me to pass the first part of that night wondering whether it would not be best to go home, spend time with my wife and daughters, and face death with comfort care.

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