David R. Dow, left. With Franklin.
Meet David R. Dow. I've written about him a handful of times on this very site, usually in a space describing laudable educators or men who have motivated me to get off the couch and make something of my life.
He's a well-respected Texas death penalty lawyer, featured in a TedX speech that you can see here. He's the author of a handful of books, including a life-changing memoir called The Things I've Learned From Dying. He's written from the heart on the death penalty for a very long time, in book and brief form, challenging the Texas death machine along the way.
As the representative of more than 100 Texas death row inmates, Dow's learned to celebrate the little successes. On a few occasions, he's saved the life of his clients. In his litany of positive outcomes was the Anthony Graves case. Dow was a part of the team that secured an exoneration for Graves, who in 2010 was set free from Texas's death row after spending 16 years awaiting his death. He's extended the lives of countless other clients, giving those people an opportunity so spend valuable time with family.
Dow would probably shrug aside this heroic characterization. He'd probably tell you that he's trying to martial his considerable ability in a cause that he's found worthy. And he'd be right. My experience with him has shown a ruthless dedication to the logic and logistics of death penalty practice. It's a constant effort to navigate the procedural hurdles and minefields that are specifically designed to make the job really hard for the last guy to sign on when a client's life's being threatened. And it's in one of those hurdles that we have our current story. Dow's been suspended for a year by the Texas Court of Criminal Appeals.
As Maurice Chammah of the Marshall Project described the situation:
On Wednesday, the judges of Texas’ highest criminal court told a defense attorney named David Dow he would not be able to practice in front of them for the next year. The Court of Criminal Appeals decided that Dow had filed a motion to stop the execution of his client, Miguel Angel Paredes, too late, and that since he’d done the same thing in a different case in 2010, he will now be suspended.
For the uninitiated, that might sound strange. And it should. Death penalty cases necessarily bring into play tight deadlines. Lawyers like Dow are often working against the clock, sorting through the myriad issues at their disposal, looking for that special chestnut that might just save a man's life. They're deciding which argument is their best, and they're often waiting for information that just doesn't come. These situations are fluid, too, dependent upon the whims of forensic testing, jailhouse snitch testimony rescission, and other such evidentiary components.
Judges often accuse death penalty lawyers of filing late and frivolous appeals in an effort to delay the process. Ignoring the absurd characterization of any appeal that seeks to save a man's life as being "frivolous," in some circles, one might see a death penalty litigator's attempt to extend a man's life as noble. Like the doctor finding a few more months for his sick patient, the death penalty lawyer's "win" is often that extension, especially in places like Texas, where real death penalty wins are rare.
Dow's first notable clash with the Texas Court of Criminal Appeals on the issue of deadlines came back in 2007. Dow and his team worked feverishly to finish an appeal on behalf of Michael Richard. As they closed out their work, they experienced a computer crash, and asked the court to stay open for 20 extra minutes after their five o'clock closing so that the team could send a representative to personally deliver the appeal. The appeal, we'll remind you, was about the outcome of a human being's life.
Judge Sharon Keller, whose career casts a long shadow of enormity, responded simply:
We close at five.
You'll have to excuse Dow and other death penalty lawyers if they have something of a burr under their saddle on the issue of deadlines.
This latest round even implicates one of the more convoluted interpretations of Texas procedural law. Chammah sought to untangle the difficulties, writing:
"In June 2011, Keller’s court issued a new rule about filing deadlines. A pleading would be 'deemed untimely' if it was filed 'fewer than seven days before the scheduled execution date.' The rule goes on to say that a 'request for a stay of execution filed at 8 a.m. on a Wednesday morning when the execution is scheduled for the following Wednesday at 6 p.m. is untimely.' Dow filed a motion to stay Paredes’ execution at 12:37 p.m. on October 21st. The execution was set for October 28th at 6 p.m. It was more than seven days in advance, but violated the rule’s example. Pull out a calendar if you find this all a bit confusing."
Dow found himself on the Paredes case in a way that should feel familiar for those who have worked for or studied under Dow. As the founder and lead of the Texas Innocence Network, Dow harnesses a small number of resources and the work of a team of lawyers and students to pursue claims of actual innocence from death row inmates and "normal" inmates alike. During a given year, the Network receives thousands of letters from people who are desperate for legal representation. Most of these people are guilty. Some invariably are innocent. But each has a story, and when they plead for their lives in a letter, lawyers like Dow volunteer their time to take the case. That's what happened this time, when Dow, without even being appointed to the case - and thus not receiving payment for his time - decided to investigate on behalf of Paredes.
Paredes is now dead, of course. And Keller's court found the perfect opportunity to take their shot at personal enemy number one - David Dow.
Having high standards for law practice is certainly not a bad thing. In the criminal law setting, and especially in the death penalty setting, it's even more important. But that same Texas Court of Criminal Appeals hasn't shown a strong record of caring much lawyers coloring between the lines. That is, until the lawyer was one who challenged the court on a regular basis.
Readers of my work will remember the name Joe Frank Cannon. Cannon, of course, was a member of the "Dream Team" before O.J. Simpson ever assembled his group of legal eagles. No, Cannon wasn't a good lawyer. In fact, he was hardly a lawyer at all, assuming we use "awake" as one of the characteristics of a functional attorney. Cannon slept through the cases of at least two men who were executed under his care.
It feels strange to even use the name Cannon in an article about David Dow, considering that much of Dow's work as a death penalty lawyer is necessary because horrid lawyers like Cannon made lethal mistakes at the trial level. During the first week of a class with Dow, I finally piped up from whatever was distracting me when Dow intimated that human beings die when lawyers don't do their job. It was serious business, and it was in this criticism of bad trial lawyers that I decided to become one. My motivation from that day forward was to be the kind of lawyer that never gave Dow a reason to do his job. To be a good trial lawyer is to keep people off of death row. And in Texas, even if you sleep through a trial, you can avoid sanction and be deemed competent in appellate review. When you're helping to grease the wheels of the death penalty machine - and not putting up a fight against the state and its agenda - you'll scarcely generate the kind of vitriol that's necessary for a one-year suspension.
The Court of Criminal Appeals in Texas issued this one-year suspension in service of a personal vendetta against a man who dared challenge what he has called the "Texas Machine of Death." While Dow is not your typical abolitionist - he's more pragmatic than that - he has become an outspoken critic of capital punishment. And his criticism focuses mostly on the inherent absurdity of allowing human beings the power to make decisions on the life and death of other human beings. He's reticent to grant this power to the state mostly because he's seen too much. Dow has not been shy in his speeches, in his briefs, and in his books, about the failings of various courts at various levels. From prosecutors who withhold evidence to defense attorneys who fail their clients, he's unashamedly critical of people whose mistakes - either innocent or malicious - lead to a human being's demise. He's been outspoken against trial level judges who seem indifferent to life, bending the rules only when it means Texas can stick another needle in another arm.
And he's been most critical of those people who should be playing referee in the appellate courts where he practices. Texas's Court of Criminal Appeals is notorious as a rubber-stamp for executions. You'll have to excuse Dow for questioning more than just the legal reasoning of judges who might let a man die just because a lawyer's computer system broke down.
You might excuse Dow for being critical of a system that's demonstrated around a 90-percent success rate in choosing who is guilty and who is innocent for the purposes of death row. When he sees someone like Anthony Graves walk triumphantly into the sun after leaving the dark cage that is death row, you'll forgive Dow if he's not into playing nice with a court who specifically designs rules that act not as facilitators of justice, but rather, as hurdles.
Dow, after all, is the man representing Jerry Hartfield, a Texas man of limited intellectual capacity who has been sitting in a Texas jail cell for more than 30 years without a valid conviction to hold him there.
David Dow has spent his career doing two things - standing up for those people who no one else will, and making sure that people who railroad the vulnerable are held to the carpet for it. Unfortunately for him, when you take on such a lofty challenge, and when you square up against a heavyweight, you better be prepared to take some punches. And punch they have, slapping Dow with a suspension that will cause many of his clients to lose the services of a high quality death penalty lawyer in a legal environment where there just aren't enough jurists willing to take on these cases. In its quest for personal retribution, this particular court has done more than take shots at a single lawyer. They've also done what they do best - inflict pain on the condemned.
If you think that's petty, just remember that the same court that handed down this ruling, when faced with the prospect of waiting 20 minutes to receive an appeal for a man's life, responded:
We Close At Five.