The Countdown to David Wood’s Execution Date

Transcript:

ALVIN MELATHE: On a warm day in early March, I meet Naomi in Dallas. We’re in the final stretch of this case, exactly one week out from David Wood’s execution date, and Naomi is driving up to death row to visit him. I can’t be with her for the actual visit, but still, I’m tagging along for the ride. All of Naomi’s visits with David have come with the stress of a coming execution, but it’s impossible to ignore the specific context here. That is potentially her last visit with him.

NAOMI FENWICK: I have been giving some thought to how to leave the conversation and the sense of, what do I say when it’s time for me to go?

ALVIN MELATHE: This particular question, what do I say when it’s time for me to go, is a thorny one for death penalty lawyers, being face to face with a perfectly healthy human being, as the moment of their death rapidly approaches, painfully aware of its exact manner and timing. Greg describes this last interaction as deeply unnatural, a conversation where language itself feels inadequate.

Naomi has been running scenarios in her head for how to leave it with David. She tells me she was up at 3:30 this morning, trying to figure out just the right thing to say.

NAOMI FENWICK: It’s hard because you want to be caring, and you want to express compassion, but you also have to remain in the role of an attorney. And I don’t want to have some sort of, on my part, teary goodbye of, I might never see you again. And I want to be fair in the odds, which is, I could see you, and I might not.

ALVIN MELATHE: Naomi spends three hours inside death row. I’m waiting for her in the parking lot when she gets out.

ALVIN MELATHE: How did it go?

NAOMI FENWICK: He didn’t want to talk about the case, so I just told him a little bit about next steps and what had happened.

ALVIN MELATHE: Naomi tells me she said maybe five sentences during their entire visit. Most of the rest of it was listening to David tell stories about his first stint in prison, in a unit everyone called the Gladiator School, about a summer he spent in his dad’s hometown, where he stole a bunch of fireworks, so his little cousins could set them off.

NAOMI FENWICK: He also told me to never try shrooms.

ALVIN MELATHE: [LAUGHS]: Any more on that or just blanket statement?

NAOMI FENWICK: He said that he’d seen things that a human should never have to see while he was on shrooms. And he’s worried about Greg. He’s worried about his sister. He said he was going to be OK.

ALVIN MELATHE: Do you think he’s going to be OK?

NAOMI FENWICK: I don’t know. I think so. I think -- I mean, maybe I’m just trying to comfort myself, but he’s really angry.

ALVIN MELATHE: I did know that part from the hour Maurice and I spent with David, how angry he was about his case. That wasn’t hard to pick up on. But Naomi had a different vantage point here, maybe a biased one, but no doubt a closer one. When her office first took on David’s case, Naomi agreed to help, but didn’t want to go to death row to visit with him. Jeremy, her boss, has always made it clear that in these situations, when it’s very likely that their client will be executed within months, it’s not a requirement to go.

But Greg told Naomi that her perspective and work on the case was something that David would want to hear about firsthand, so she started heading down to see him. Their relationship, under those conditions, grew quickly. He sent her some of his paintings, and she started to see him as more than just a name on a legal filing. Even though she’d only known him for a few months, Naomi had a feel for his anxiety and fear. She had come to know him in a way that defied easy category.

NAOMI FENWICK: It’s this really strange relationship that is not a friendship, although it can sometimes feel like one. How do we describe not only that relationship, but the grief of maybe losing that person? What am I really sad about here, particularly when, as far as the outside world knows, David Wood is a serial killer who also has a very violent criminal record of crimes against children?

And I know every time I, in the microphone, say that I’m sad, I’m like, oh, I can just hear the -- well, the families of the victims are sad because they never got this time either. The thing is, Alvin, is if David Wood is executed and there are family members who are seeking closure and peace from that, I hope they get it, because otherwise, it is truly, truly pointless.

[MUSIC PLAYING]:

ALVIN MELATHE: How did you leave it?

NAOMI FENWICK: I told him that I really, really, really hope I get to see him again. I really hope we get a stay.

ALVIN MELATHE: From Serial Productions, "The New York Times," and the Marshall Project, I’m Alvin Melathe.

MAURICE CHAMMAH: And I’m Maurice Chammah. This is the final episode of "The Last 12 Weeks."

ALVIN MELATHE: There are now six days until David Wood’s execution date. For this final stretch, Alvin is with Naomi and Jeremy in Dallas. I’m with Greg, who’s a couple hundred miles away in Livingston, Texas. For this final push in the case, Greg has decided to set up a one-man war room at a Holiday Inn here, about 15 minutes from death row. He’s in a pretty spartan suite on the third floor that overlooks a parking lot and a dollar store -- a desk covered in papers, a small mountain of bottled drinks. He’s got more than one novel on his bedstand, which seems a little optimistic, given the circumstances.

Greg could do his legal work from anywhere with an internet connection, but he chooses to do it from here so that he can visit David as much as possible in these next few days. That, and because it was in this exact Holiday Inn years ago that he won a stay of execution for another client. He figures he’ll take all the luck he can get.

I plop down on a faux leather couch in his room as he gets to work. The legal specifics of what Greg and the other lawyers are going to be up to in the run-up to the execution are interesting, and I’ll get to them. But there is one not strictly legal thing I’ve been wondering about this moment for Greg. I’m curious about his relationship with David, what potentially losing him might mean for Greg. He explains it to me by way of comparison.

A lot of his other death row clients, Greg tells me, have had severe mental illnesses, like schizophrenia. Communicating with them could be challenging. Greg cared for these men and fought for them, but he wouldn’t describe those relationships as all that close.

GREG WIERCIOCH: Certainly not as close as the one I’ve had with David. And yes, I’ve gotten to know him fairly well over the years, now, 16 years.

ALVIN MELATHE: Over those 16 years, Greg has shared more about his personal life with David than he otherwise might have with a client. When Greg’s father was suffering from Alzheimer’s, David asked if he could pray for him, hand-painted him a card that Greg put in his father’s room. Greg saw David through the death of his younger brother and has gotten close with David’s sister, too.

I was surprised that these men, with their wildly different life experiences and temperaments, both referred to each other as brothers. David’s allowed to invite up to five people to witness his execution, and it’s common to invite family. Greg thinks there’s a chance David will ask him. David hasn’t brought it up yet, and Greg is sort of hoping he doesn’t. He’s never watched one of his clients be executed before. He always worried that the trauma of it would make it harder for him to do his job. But Greg says, if David doesn’t have anyone else, he’ll be there. He doesn’t want David to face death alone.

[MUSIC PLAYING]:

In any case, this is probably the last time Greg will be in this position. He turned 60 not long ago, and though he isn’t planning to retire anytime soon, he’s also not planning to take on new death row clients. Another capital case at this point, given how long they last, might outlive him. So in all likelihood, David will be his last death row client.

These are the things weighing on Greg’s mind as he prepares for all the work ahead of him, most likely firing off responses to whatever court decisions and prosecution briefs come out this week. To that end, he’s stocked his mini fridge with yogurt and what I’d call an apocalyptic amount of blueberries, so he never has to leave the room for breakfast. He’s got his other meals covered, too.

GREG WIERCIOCH: So I like to have a turkey sandwich every day for lunch. So I’ve got my bread, I’ve got my processed turkey, and I’ve got my cheese, Swiss and cheddar. Got my mustard.

ALVIN MELATHE: Greg’s palate, I should note, is something of a running joke on the defense team. I myself have gotten pretty stressed out watching him order at restaurants, asking the server to substitute or remove anything that sounds spicy or, honestly, flavorful at all. He’s saving the real treat -- a pint of Ben and Jerry’s -- for when this is all over. Ice cream, he figures, will be helpful, no matter how this turns out.

NAOMI FENWICK: Is Greg doing well?

ALVIN MELATHE: Back in Dallas, Naomi and Jeremy and the rest of the defense team are taking a little break from their legal strategizing to figure out a care package for Greg that might suit his specific dietary desires.

NAOMI FENWICK: I know he likes Gatorade.

JEREMY SCHEPERS: He likes plain chicken.

NAOMI FENWICK: Plain chicken.

JEREMY SCHEPERS: We could send him some raw chicken.

ALVIN MELATHE: Delivery order done and dusted, the team in Dallas turns back to their to-do list, following up on all the legal filings and petitions they’re working on. They lay some of the options out, I think mostly for my benefit, on a whiteboard with marker.

NAOMI FENWICK: OK. You can be here, which is -- oh, that’s not going to work. I’ve got black.

ALVIN MELATHE: There are four main avenues the lawyers are exploring to stop David Wood’s execution. All four are long-shots at this point, but some more than others. I’m going to quickly spell them out, roughly from the least likely to the most promising.

The least likely route by far is that the governor of Texas will intervene. He could issue a 30-day reprieve, or else his appointees on the Texas Board of Pardons and Paroles could vote to commute the sentence, and he could approve it. This is extremely uncommon. The current governor of Texas, Greg Abbott, has commuted exactly one death sentence since he came into office more than a decade ago.

The second avenue, the US Supreme Court, is slightly more likely than the governor to stop the execution, but only by a little. They do stay executions, but it’s increasingly rare. It requires a lawyer’s thinking up a unique legal claim that’ll hook a Justice or two. In some ways, the more technical and incremental stuff usually works better, but the lawyers are also ready with a last-ditch moonshot. If all else fails, they’ll ask the justices to rule on whether it’s kosher, legally speaking, to execute someone who has proven their innocence. Believe it or not, this is not yet a settled matter of constitutional law.

The third avenue is a federal circuit court, specifically the Fifth Circuit Court of Appeals, which deals with all the death penalty appeals in Louisiana, Mississippi, and Texas. Federal courts are, broadly speaking, more challenging to death row claims than state courts. And the Fifth Circuit, one of the most conservative in the country, is notoriously unfriendly to death row claims. Between 2007 and 2020, they granted habeas relief to just one death row prisoner in Texas, one out of 151, which brings us to the last avenue, the highest state court for criminal cases in Texas, the CCA, the Court of Criminal Appeals.

If there’s any one court the team is pinning their hopes on, it’s the CCA. But to call it the most promising is maybe a reach. It’s mostly by process of elimination. The CCA has historically stayed very few executions. But if the defense team squints, they can find a bit of silver lining. A few months ago, three new judges were elected to the bench. All three are conservative Republicans, but there’s at least some uncertainty in how these new judges might rule. This mystery is what passes for optimism with habeas lawyers.

With less than a week to go until the execution date, the team weirdly doesn’t have much to do, but wait. They submitted what they needed to the governor and to the CCA. Now, they’re just adding their finishing touches to their federal petition and Supreme Court filings before they send those off, all of which has led to what I’ve observed in the hallways in Dallas as a very particular energy -- boredom, operating occasionally on a knife’s edge.

NAOMI FENWICK: I’ve been called out for sometimes capitalizing the T and sometimes not capitalizing the T in T-shirt. Do we have a preference?

JEREMY SCHEPERS: I would struggle to think of anything I gave less of a shit about than whether we capitalized the T in T-shirt right now.

ALVIN MELATHE: Jeremy, in particular, seems pent-up, very all dressed up with nowhere to go. On March 10, three days before the execution date, he tried to busy himself with work usually done by the office paralegal. I spotted him shuffling back and forth from his office, all the way down the corridor to the printer multiple times, personally printing copies of a writ they were going to send to the Supreme Court, personally stapling them.

[STAPLER CLICKING]:

ALVIN MELATHE: A good staple.

JEREMY SCHEPERS: The glamorous life of a lawyer.

ALVIN MELATHE: [CHUCKLING]:

ALVIN MELATHE: The next day, on March 11, I got to the office a little late, honestly, partly because I’d spent several days in a row recording the functional equivalent of dead air for hours. I check in with Jeremy.

ALVIN MELATHE: Did I miss anything?

JEREMY SCHEPERS: You missed absolutely nothing. In fact, I think -- we obviously never know when the court opinions are going to come down, but I think it’s likely we have a relatively quiet morning.

ALVIN MELATHE: And for a little bit, it seems like Jeremy’s right. Everyone is sitting quietly at their computers. I roam the halls of the office, feeling a little silly, wondering if pointing my microphone at Naomi’s typing is a better use of my time than pointing my microphone at Jeremy staring at a screen. And then suddenly something happens that nobody was expecting. The Fifth Circuit, the federal appeals court, handed down their ruling. The lawyers are confused because in their experience, the Fifth Circuit usually waits until the CCA acts in these cases. The federal courts don’t tend to rule before the state courts, but they have this time.

The whole office goes into a tailspin. Jeremy says he’s never seen this before. He calls Greg, desperate to get him on the phone to figure this out. Greg doesn’t pick up. Jeremy wonders aloud if he’s on the treadmill.

JEREMY SCHEPERS: What the fucking Christ? Pick up your goddamn phone, Greg.

ALVIN MELATHE: What little restraint Jeremy has shown on this podcast with regard to cursing is now completely out the window.

JEREMY SCHEPERS: Damn it, get off the treadmill.

ALVIN MELATHE: While Jeremy waits on Greg to respond, he skims the Fifth Circuit ruling. One thing that jumps out -- Ramona Dismukes. Ramona, remember, is the woman who met the lawyers at a Whataburger who told them about the wild plan she and her mother came up with to try and lure out the desert killer on their own.

RAMONA DISMUKES: And my mom was literally tricking me. She was like, go sit on that wall, and somebody’s going to come and try to kidnap you. And I’ll call the cops, and we’ll get ’em.

ALVIN MELATHE: Ramona was also the person who offered the lawyers an explanation for why a woman named Judith Kelling said David Wood raped her, one of the foundations of his death sentence.

RAMONA DISMUKES: This is what she’s telling me. They made a deal with me to get me out of jail, and all I got to do is testify against this guy. I was like, well, were you even raped? She was like, yeah, but not by him. I’m like, who? She said, Mike Plyler. I’m like, who’s this guy? Oh, well, he lives right here --

ALVIN MELATHE: Ramona Dismukes was never called to testify in the capital murder trial, and so the jury never heard that claim. The Fifth Circuit writes --

JEREMY SCHEPERS: "If Dismukes had testified to the fact she states in her declaration that Kelling identified Plyler as her attacker, but falsely framed Wood, that would have destroyed the state’s case so thoroughly that every reasonable juror would have had a reasonable doubt about Wood’s guilt." So, I mean, this is one of the most powerful statements I’ve ever seen the Fifth Circuit make. Wow. I mean, that is, I mean, really -- really an incredible statement.

ALVIN MELATHE: It turns out the Fifth Circuit authorized some of the defense team’s claims, including Ramona’s, meaning they’d like a lower court to take a look at them. There’s also a catch. He explains it to Greg when he finally gets him on the phone. He was, in fact, on the treadmill.

JEREMY SCHEPERS: Oh, god. All right, there’s Greg. Greg?

GREG WIERCIOCH: I’m walking now, so I thought --

JEREMY SCHEPERS: Yeah, get here --

GREG WIERCIOCH: -- I’d have about a half hour of peace, but apparently not. What’s going on?

JEREMY SCHEPERS: Yeah, so we’ve got incredible news and crazy fucking news.

GREG WIERCIOCH: All right.

JEREMY SCHEPERS: So the Fifth Circuit authorized --

GREG WIERCIOCH: Wow.

JEREMY SCHEPERS: -- the Brady and part of the false testimony claim.

GREG WIERCIOCH: Oh, wow.

JEREMY SCHEPERS: But they didn’t stay the execution.

GREG WIERCIOCH: Jesus.

ALVIN MELATHE: In other words, for the defense team, this is roughly the equivalent of the Fifth Circuit saying, we suspect something really fishy going on here, but we are not going to be the ones to stop this execution. Jeremy snaps into action, actually snaps so fast that he runs into me as he’s barking out orders to one of the lawyers.

JEREMY SCHEPERS: Claire -- jeez.

ALVIN MELATHE: Sorry.

JEREMY SCHEPERS: I ate the fucking microphone as I turned on a dime, and Alvin wasn’t quick enough. Can you draft a proposed order for the Northern District for the stay motion?

CLAIRE: Yes.

JEREMY SCHEPERS: Let’s get that done. Naomi, just very briefly -- I just told this to Claire -- we’re going to attach Mona’s declaration to this.

ALVIN MELATHE: The machine whirring into action is impressive to watch. The lawyers start typing away. They’re trying to file a motion for a stay in a lower federal court to see if they’ll stop the execution, even though the Fifth Circuit refused to. Everyone seems somewhat gobsmacked that this is all happening because of something Ramona Dismukes declared at a Whataburger two months ago, officially, Exhibit Number 62 in the defense filings.

JEREMY SCHEPERS: Exhibit 62 is the winner, the most important of the 115, two pages. Funny how this shit works sometimes, isn’t it?

ALVIN MELATHE: As the lawyers are busy trying to figure out how to deal with this unexpected development from the federal courts, they get some more news.

JEREMY SCHEPERS: The state just filed their response in the CCA.

NAOMI FENWICK: Are you serious?

JEREMY SCHEPERS: Yeah. Very timely of them. Quiet fucking morning, some asshole said not too long ago.

ALVIN MELATHE: The prosecution has its say about David Wood. That’s after the break.

[MUSIC PLAYING]:

MAURICE CHAMMAH: One of the more challenging aspects of making this podcast has been getting the prosecution’s side of David Wood’s case. We’ve been trying to get someone from the state of Texas to talk to us for months. We asked the Office of Attorney General Ken Paxton for an interview multiple times -- no response. We even knocked on the doors of the two original trial prosecutors in El Paso and sent them letters. We never heard back.

But on Tuesday morning, shortly after the Fifth Circuit ruling sends the lawyers into a frenzy, the state of Texas finally issues its own giant brief in the case. Two days before the execution is scheduled, the attorney general’s office officially responds to each of the defense team’s claims. Because the prosecutors wouldn’t talk to us, this is our first real window into how they see all the new evidence. It’s 63 pages, and I would characterize it all as the written equivalent of an eye roll. Like, this again?

The prosecution writes, none of Wood’s evidence is actually new, nor is it exculpatory. Take the DNA. One of the biggest pieces of evidence that Greg wrote about was a blood spot on a piece of victim’s clothing that belonged to a male contributor who’s not David Wood. This is the reason Greg still wants to get a bunch of the other evidence in the case tested, too. But the prosecution writes, quote, "The presence of that DNA means nothing more than another man came into contact with that clothing. It doesn’t mean David Wood is innocent."

Ramona Dismukes, who the Fifth Circuit had singled out in their own ruling just hours earlier, well, the AG’s office had the opposite reaction to her claims. They write that Dismukes has, quote, "serious credibility issues" and argue that her whole story sounds pretty unbelievable, that this woman, Judith Kelling, would admit to making up a rape allegation, to perjury, effectively, and to railroading David Wood all through Ramona, a teenager she’d just met on a public street.

And then there’s George Hall, the man who held his tongue for 30-plus years before claiming that two jailhouse informants fabricated testimony to implicate David Wood in the desert murders. The prosecution doesn’t directly challenge Hall’s claims. Instead, they use them to criticize Greg, as in, you had more than 15 years to find this guy. Why is he only showing up now? "Diligence," they write, "requires more than waiting for witnesses to come forward."

And this brings us to the throughline of the prosecution’s arguments, which is a familiar one, but worded pretty sharply here, that Greg’s latest petition is really just one more effort to manipulate the court. The prosecution spends several pages outlining the many, many motions Greg has filed in the last 15 years that have ultimately been denied by the courts, the point being that Greg has had so much time to look for evidence of his client’s innocence, and now, here he is with more half-baked theories and conveniently urgent evidence.

That if this was your first look at the case, maybe you wouldn’t see it, but all you have to do is look at the record to know what’s going on here. The state says, quote, "With his second execution date rapidly approaching, Wood has ramped up his efforts to improperly delay justice. And his whole attempt is," quote, "scattershot at best and does nothing to erode the evidence that the jury used to convict him."

[MUSIC PLAYING]:

With a little over 50 hours to go until the execution, Greg decides to hand off the litigation for the moment to the team in Dallas. He wants to go visit David to update him on everything that’s happened this morning, but also to spend what could be some of their last few hours together. I join him in the car on the way to death row. Greg is wearing his lucky tie, a pale blue number with circles on it. It’s lucky because he won at the Supreme Court once while wearing it. Greg is feeling a little cautious about what exactly he should tell David, given the mixed signal they just got from the Fifth Circuit.

GREG WIERCIOCH: Well, I want to be careful because nothing’s changed in terms of his situation, which is, there’s still an execution in 48 hours. I don’t want to say, we’re going to get a stay. Stand down. Don’t prepare yourself. Still, here’s some encouraging news, which might be almost worse. Give you some hope here without the ultimate, which is a stay of execution that’s going to hold up.

MAURICE CHAMMAH: Yeah. It’s like you’re a doctor delivering encouraging news, but --

GREG WIERCIOCH: Yeah, we don’t have the final test results yet.

MAURICE CHAMMAH: Exactly.

GREG WIERCIOCH: We’re waiting on the labs.

[CAR DOOR SLAMS]:

Flushed out of there, too.

MAURICE CHAMMAH: We park in the lot, and Greg climbs out, leaves his phone in the rental car. He’s not allowed to bring it into the prison with him.

[CAR DOOR SLAMS]:

ALVIN MELATHE: Meanwhile, back in Dallas, David Wood’s pathway to a stay gets a little more narrow. The Board of Pardons and Paroles has sent word that they voted unanimously against giving David Wood a reprieve or commutation. They’re the ones who can give a recommendation to the governor. So it looks like that’s the end of avenue one. Well, that’s not really a big surprise to the lawyers.

So they have a tangled decision from the Fifth Circuit, which they’re trying to deal with. They’ve got their chances with the Supreme Court, too. But really, the big thing they’re waiting on is word from the Texas Court of Criminal Appeals, the CCA. I don’t know what I was expecting when the CCA ruled -- a gasp coming from one of the offices, the ring of a special alarm or something. Instead, when the CCA ruling finally came down, we got Jeremy sidling up to us, uncharacteristically quiet, with a big grin on his face.

NAOMI FENWICK: What happened?

JEREMY SCHEPERS: The CCA stayed his execution.

NAOMI FENWICK: Really?

JEREMY SCHEPERS: [LAUGHS]: Yeah. So I just checked the docket. The CCA docket shows a stay pending further order of the court in a 6-2 vote, which will be a final stay. So --

ALVIN MELATHE: I should have -- I could sense you had a shit-eating grin on as you were walking over here.

JEREMY SCHEPERS: I most definitely did. I most definitely did.

[MUSIC PLAYING]:

ALVIN MELATHE: This was the moment all the lawyers had been working toward for the entire time Maurice and I had been following them. And they’re still a little stunned that it’s happened. Jeremy is giddy, really amazed by this day, and really proud of himself for the anticlimactic way he delivered it to all of us.

It is not the only thing that feels casual in proportion to the weight everyone has put on it. In their ruling, the CCA judges don’t offer any explanation for their decision to stop the execution. The order itself is barely three pages long, basically just a summary of the case history and a list of the defense team’s claims. They grant a stay and write, quote, "The stay will remain in place until further order of this court." Jeremy sends a quick text to Greg. Just one word -- "Stay." Greg gives him a call back.

JEREMY SCHEPERS: Hey, Greg.

GREG WIERCIOCH: Jeremy, I just got out. What’s the scoop?

MAURICE CHAMMAH: I’m with Greg outside of death row when he gets the news. He’d just come out of the prison where he was visiting David.

JEREMY SCHEPERS: Well, get your ass back inside.

GREG WIERCIOCH: All right. I’m going to do that. I just want to see what you got there.

JEREMY SCHEPERS: Stay pending further order from the CCA. So it’s a 6-2 -- it doesn’t matter.

GREG WIERCIOCH: Yeah.

JEREMY SCHEPERS: -- stay, final stay --

GREG WIERCIOCH: 6-2?

JEREMY SCHEPERS: Yeah, hurry up and get back in.

GREG WIERCIOCH: All right, I’m going to get back in. Wow, fantastic news. Fantastic.

JEREMY SCHEPERS: All right.

GREG WIERCIOCH: Congratulations. All right, I’m going back in.

JEREMY SCHEPERS: Yeah, hurry up.

GREG WIERCIOCH: OK, bye.

MAURICE CHAMMAH: Greg bounds out of the car. He wants to be the one to tell David the news himself. He doesn’t trust the prison staff will relay it, and so David might spend the entire night continuing to think he’s about to be executed. It’s near closing time at the prison, and so Greg literally has to run to make it through security before they close up shop for the day. About 10 minutes later, Greg comes rushing out and gets in the car, clearly out of breath as we peel out of the parking lot.

GREG WIERCIOCH: Holy mackerel, as my dad would say. I just can’t believe it.

MAURICE CHAMMAH: He gets out his phone and calls Jeremy again.

GREG WIERCIOCH: David was overjoyed, tears in his eyes.

JEREMY SCHEPERS: Great. Great.

GREG WIERCIOCH: His sisters were there. They were crying. I even got a little teary-eyed myself, Jeremy. But anyway, yeah, they were just so elated. And I only stayed for a minute to tell them. And he said, get some sleep. Get some rest. Tell everybody I love them.

JEREMY SCHEPERS: [LAUGHS]:

GREG WIERCIOCH: I said, I’ll be back tomorrow. I said, I haven’t even read the order. I know it’s 6-2. I know it’s going to stick. So Naomi and Claire are there, right, in Dallas. Yes?

JEREMY SCHEPERS: Yeah, they sure are.

GREG WIERCIOCH: All right. Wonderful. Well, pour yourself a hard one -- stiff one, whatever it’s called.

JEREMY SCHEPERS: [LAUGHS]:

MAURICE CHAMMAH: Greg himself plans on pizza and, of course, some Ben and Jerry’s. We head to Walmart, and he browses the freezer aisle carefully, as if he’s looking for just the right vintage of wine for the occasion. He settles on Chocolate Fudge Brownie and puts it down in one sitting.

Meanwhile, in El Paso, Marcia Fulton had been waiting. Marcia’s daughter, Desiree, was one of the Desert Killer’s victims, just 15 years old when she was murdered. Next year will be the 40-year anniversary of her death. Marcia had spent most of those years anxious to see David Wood pay for it. She’d packed her bag and was ready to leave for Huntsville for the execution when she got the call about the stay. Marcia then calls me, actually, and asks if I’ve heard the news yet.

MARCIA FULTON: Yeah, it’s like, why are they playing this game? Why are the victims the ones keep getting victimized?

MAURICE CHAMMAH: Yeah.

MAURICE CHAMMAH: There’s some real emotional whiplash here, going from the defense team’s celebration to Marcia’s fury. This is the second time she’s prepared for this moment to finally keep her promise to her daughter, only for something to get in the way.

MARCIA FULTON: I mean, 37 years, this could have been done, wrapped up. I mean, there’s no new evidence. [LAUGHS]: And it’s just that he said, well, I’m not guilty. Well, duh, I would say that, too, if I was facing the death penalty. [LAUGHS]: Anyway, I just wanted to let you know if you hadn’t heard.

MAURICE CHAMMAH: Yeah.

MARCIA FULTON: I’ll get this done one way or the other, I swear to God, if I gotta go down there and do it myself. [LAUGHS]:

MAURICE CHAMMAH: All right. I’ll talk soon.

MARCIA FULTON: I wouldn’t do that. No, I wouldn’t do that. But it’s either that, or God can do it for me, one of the two. [CHUCKLES]:

[MUSIC PLAYING]:

MAURICE CHAMMAH: 4 and 1/2 months go by before we hear anything else about David Wood’s case from the CCA. The judges had been silent about what exactly the next steps were here and which of the lawyers claims they actually found persuasive. In July 2025, the defense team finally gets an answer. The judges write that all of their claims should be evaluated by a lower court, which means a hearing in front of a judge in El Paso.

It turns out the defense team was right to feel some optimism around the new, mysterious CCA judges. One of them goes even further than the rest of the court and writes, quote, "This case should have been resolved, one way or the other, long ago, and likely would have had a DNA test been ordered." He’s just one of nine judges, so he can’t force the issue on his own. But it does pave the way for an El Paso judge to order the testing that Greg has wanted for more than a decade now. This ruling is about as good as it gets for the defense team. And the day it comes out, Alvin and I hop on the phone with Greg and Jeremy to talk about it.

For a case that had such long odds when we started following these lawyers around, I was fully prepared for a bit of gloating here, but I wasn’t exactly hearing them take a victory lap. Greg had spent all of those weeks we were with him cultivating Charlie Brown optimism. But now that he’d won, it felt like he was finally getting his bearings. And while I could hear gratitude in his voice for the outcome, I could also hear some real anger about how close it all came to going the other way.

GREG WIERCIOCH: And if David had been executed on March 13, I think the state of Texas and the judges and the state and federal courts would have said, well done. He got the representation that he needed and deserved. And we can all be satisfied that we upheld the principles of our Constitution and our legal system. The system worked. Of course, that’s probably what they’d say now, too. The system worked. Hey, we’re going to give this guy a shot who might be innocent.

MAURICE CHAMMAH: Greg, it’s probably clear, does not think the system worked. Or rather, he doesn’t think the capital-S System works. And he hates that, perhaps, all the time and the skill and dedication that he’s given to David Wood’s case might be used as an example of a system operating as it should. The idea that all the lawyers in this case are zealously representing their sides and that the judges are giving deliberate consideration to all the arguments, calling balls and strikes, that this process, though imperfect, is nevertheless the best that humans can do, Greg sees it all as much more precarious than that. Jeremy, as usual, puts it more bluntly.

JEREMY SCHEPERS: Yeah, I mean, just fucking crazy, right? I mean, Greg has a nice answer that I totally agree with, too. But if Greg doesn’t get involved in David’s case 15, 20 years ago, whatever it was, he would’ve been executed a long time ago. And none of these claims would have ever seen the light of day.

MAURICE CHAMMAH: Back in 1972, the Supreme Court struck down the death penalty, halting executions across the country. Some of the justices wrote about racism, but actually, their biggest focus was arbitrariness, that a bunch of people committed horrible crimes every year, and who actually got the death penalty was incredibly random. So the death penalty disappeared for a few years, and then politicians wrote new laws to try to make it less random. And the Supreme Court allowed executions to start up again.

We’re about to hit the 50-year anniversary of the supposedly new and improved death penalty, a half century with almost 1,700 executions. Watching David Wood’s defense lawyers over the last 12 weeks, I feel confident in saying, it’s still arbitrary. Not just in who gets put to death, but in who gets a stay.

For instance, it was arbitrary that David Wood got a lawyer as devoted as Greg and that he could enlist a team as devoted as Jeremy’s. It was arbitrary that George Hall was still alive and off parole and willing to tell his story about the jailhouse informants, that Ramona Dismukes just happened to be back in El Paso and willing to tell her story at a Whataburger. That some judges believe these stories enough to stop the execution felt arbitrary, but if they hadn’t bought it, David Wood would be dead right now. And that would feel arbitrary, too.

We began following these lawyers thinking we’d get to watch their tactics, wondering if they were selling a story or raising legitimate doubts about an unjust conviction. And in the end, I think both might be true, and neither is really the point. The point is that somehow, we’ve arrived at a place where two separate courts, one federal and one state, have both found serious problems in this case. And this is after 30-plus years and layers and layers of appeals, after this case crossed the desks of dozens of judges.

So why now? Well, the obvious answer is that the specter of an execution sparked a certain urgency to re-examine every little aspect of the case. But there’s a tradeoff, too. Relying on a deadline as irreversible as an execution is a cruel kind of brinksmanship, putting someone’s life in the middle of an exhausting game of chicken. The effect goes beyond the person on death row. You can hear it in the tired voices of attorneys and in the jaded sighs of a victim’s mother, too. And besides, the last 12 weeks haven’t gotten us any closer to knowing what really happened in a stretch of desert in Northeast El Paso in 1987.

[MUSIC PLAYING]:

It’s been more than a year since the stay of execution was issued. David Wood’s prospects have never been better, but it’s almost impossible to know whether he’ll ever be declared innocent, much less walk out of prison. There’s still no date set for a hearing on David Wood’s innocence claim. For all of the blame Greg has taken for delaying this case, now, other parties, the various judges and prosecutors involved, are contributing to the delays, too. And ironically, from Greg’s perspective, the faster things can happen now, the better. After all, David Wood is almost 70 years old.

Recently, a judge in El Paso ruled that the defense team could take depositions, interview some people who might not have been willing to talk to them before. The judge said he’s anxious to get hearings going in the fall, so he set a deadline to complete those depositions. As of this writing, the defense team has a little less than 12 weeks.

[MUSIC PLAYING]:

MAURICE CHAMMAH: "The Last 12 Weeks" is written and reported by me, Maurice Chammah, and Alvin Melathe. Alvin produced the series. Jen Guerra edited the series, along with Anita Badejo. Julie Snyder is the executive editor for Serial Productions. Additional editing from Akiba Solomon. Fact-checking and research by Ben Phelan. Music supervision by Jen Guerra and Phoebe Wang, with mixing by Phoebe Wang. Additional mixing by Catherine Anderson. Tracking direction from Sean Cole.

Our associate producer is Mack Miller. Additional production by Anita Badejo. Additional reporting by Ana Worrel. There’s a lot about the death penalty that we couldn’t fit into this show -- stories from capital defense lawyers, a fascinating look at the data behind executions. You can find all of that in our newsletter. Sign up for it at nytimes.com/serialnewsletter.

Original music for this series by Adam Dorn, a.k.a. Mocean Worker, Matthias Bossi and Jon Evans of Stellwagen Symphonette. Additional music by Dan Powell and Marion Lozano. Adam Dorn, a.k.a. Mocean Worker, composed our theme song. Video production by Sean Devaney. Our standards editor is Susan Wessling. Legal review from Al-Amyn Sumar and Jackson Busch.

The art for our show comes from Pablo Delcan. Sam Dolnick is deputy managing editor of "The New York Times." Special thanks to Michael Graczyk, Bob Moore, Nick Pitman, Steven Rich, and Julie Whitaker. "The Last 12 Weeks" is a production of Serial Productions, the Marshall Project, and "The New York Times."