Earlier this year, the Texas Court of Criminal Appeals—the highest criminal court in the state—issued an unprecedented sanction against experienced and respected death penalty lawyer David Dow. Offering his services pro bono, Dow represented death row inmate Miguel Paredes in the last stages of his post-conviction appeal. In a last-ditch effort to save the condemned man’s life, Dow filed an appeal 24 hours late under one understanding of a convoluted court rule. While the details of the case remain in dispute, Dow’s filing adhered to the letter of the rule but failed to adhere to court’s example in application of the rule. Dow believed he was within the proper timeline, but the Court disagreed. Because Dow had previously filed an appeal late in 2010 and had been warned by the Court, the CCA suspended him from practice for one year.
The decision caused a justifiable stir in Texas legal circles. Dow had been in a high-profile tiff with a CCA judge a few years prior, when he called to the carpet that judge for her callousness in refusing to give Dow’s team an extra 15 minutes to hand-deliver an appeal for a condemned man after Dow’s computer system failed. When Dow and company asked whether the CCA would be willing to stay open a few extra minutes to receive a filing from one of the team’s representatives, Judge Sharon Keller notoriously responded, “We close at five,” as if an important life and death filing deserved the treatment Burger King customers might receive if they tried to order an Egg ‘n Cheese Croissantwich at 10:31.
Dow rightly criticized the judge, prompting an investigation, and placing a target directly on his back if one wasn’t already there. In the world of death penalty litigation, that’s a dangerous thing. Death penalty lawyers like Dow work on complex pleadings in state and federal court. They file writs of habeus corpus that deal with not only substantive issues of law, but arcane elements of jurisdiction and procedure. Often, they’re fighting the clock, writing life-altering motions while dealing with a changing factual landscape. This doesn’t excuse professional negligence, of course, but it explains the environment in which Dow and those like him work. Work to the death deadline long enough in capital post-conviction work and you’ll bump up against a rule or two.
When the CCA sanctioned Dow earlier this year, many pointed out the vindictiveness of its finding. As a man who has represented more than 100 men on death row and many more off of it, Dow is often in front of the Court trying to gum up its efficient killing machine. And perhaps more importantly, he’s often in front of federal courts arguing how the CCA has failed some citizen. That Dow has written so pointedly in his books about the failings of the CCA bolsters the contention that the High Court might be looking to strike a low blow against the lawyer.
But there was something more than that at work in the CCA’s ruling. When I wrote about Dow’s case back in March, I observed:
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.
More than just exercising a person vendetta against Dow, the CCA was sending a message that zealous death penalty lawyering is punishable by sanction. Those who are willing to challenge the court and consistently fight to the death for clients are treated with contempt. When the CCA sanctioned Dow, I noted, it was really punishing death row inmates who would lose out on the services of someone who truly gives a damn.
That brings us to this week in Texas, when two cowardly death penalty lawyers proved my suspicions right. When two lawyers gave up on their client and failed in their duty to pursue every legal means of preserving the client’s life.
Seth Kretzer and James “Wes” Volberding represented Raphael Holiday in his death penalty appeals. Appointed federally, these lawyers claimed taxpayer dollars to do the least possible for their client, then stooped so low as to threaten another lawyer who was trying to secure additional counsel for Holiday in the last days of his now-ended life.
Kretzer and Volberding filed state and federal habeas appeals for Holiday. As happens in death penalty cases, Holiday’s was chased all the way to the Supreme Court of the United States, which denied his appeal. Texas defense attorney and noted legal ethics authority Mark Bennett wrote on his blog, “Defending People”:
Messrs. Volberding and Kretzer filed egotistic and testosterone-drenched pleadings that deprived their client of hope, and probably shortened his life.
When the Supreme Court denied Holiday’s appeal, the lawyers sent their client a letter explaining the dire nature of his situation. They explained their justified belief that additional appeals to state or federal courts were without merit. But almost inexplicably, the lawyers declined to seek clemency for their client, despite his desire that they do so.
In Texas, the clemency process is one of the last steps of the tragic death penalty process. It allows condemned inmates and lawyers to petition the governor for a commutation of the sentence. Lawyers engaged in the clemency process have a final opportunity to tell the inmate’s story, to present evidence of his humanity, and plead for the value of his life. Holiday asked that his lawyers prepare diligently for this process, as they’re paid and obligated to do. His lawyers responded with a letter that can scarcely be described as anything more than patronizing shit:
“A clemency petition just gives an inmate false hope.”
Volberding was no better in his explanation, removing from his client any sense of agency while telling the media:
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,”
Declining to tell their client’s story, these lawyers even lied to him in their letter:
“You may be contacted by the Texas Defender Service or other law firms offering to file a successor writ of habeas corpus for you. If so, you are free to authorize them to do so. Or you may write to them and make that request. Mr. Kretzer and I will cooperate and provide your file.”
A recent report indicates that when a lawyer named Gretchen Sween took note of Holiday’s insubstantial representation, she sought time from the court to find additional counsel for the inmate. Kretzer and Volberding stood in the way of these efforts. Brandi Grissom of the Dallas Morning News writes:
Volberding and Kretzer objected to the efforts of Sween and Holiday [to procure new counsel], arguing that they continued to work on his case, that no new lawyers were identified and no new claims that could successfully prevent his execution had been discovered.
Mark Bennett explains that the two lawyers went even further than just opposing the appointment of new counsel by the Court. The two lawyers even sent not-so-transparent threats to the Sween, urging her to back off:
We also direct that you cease communication with our client. It appears you have been corresponding with him, and probably have been to see him without our consent or permission. While Rule 4.02 of the Disciplinary Rules allows you to respond to his letters, if you have gone to see him and acquired confidential information, and used that information to intervene in his case, then you have stretched Rule 4.02 beyond any reasonable interpretation. We respectfully urge you to go no farther.
Doubling down on their malfeasance and error, Kretzer spoke out after Holiday’s execution, saying:
“I thought it was one of the cruelest things these anti-death penalty groups do is come in at the last moment and tell these defendants and their families they’re going to do all these great things,” Kretzer said in a phone interview Wednesday after the court ordered the execution to proceed. “They played dice with their emotions.”
His characterization of “anti-death penalty groups” is dangerous, erroneous, and telling of his true position in regard to his client. That a person appointed to try and save the life of a death row inmate refers in the abstract to “anti-death penalty groups” denotes that he does not view himself a part of that club, and that’s a problem when zealous advocacy is not only the goal, but also the duty. And those anti-death penalty groups understand better than anyone the (un)likelihood of success for a petition for clemency in the current Texas political environment. They understand that Greg Abbott, like Rick Perry before him, is highly unlikely to let go a man condemned to die as punishment for murder. And in my experience, they communicate those expectations to their clients. They offer no false hope. Rather, they say to those clients, “You are a human being, you have a story, and you are worth my every effort if it means saving your life.” They communicate to clients the chances, and like good and ethical lawyers, they ask their clients whether those clients would like to seek clemency. Like Raphael Holiday, many clients decide that when the when the odds of them living stands at a sterling zero-percent when doing nothing, even a fraction of a single percent is better. And then those lawyers prepare the best possible clemency case, telling the story of a client’s circumstances and life for the last time, and maybe even for the first time. It’s a chance for de-humanized people to feel human one last time, at the very least.
Kretzer and Volberding did eventually file a petition for clemency in order to satisfy the demands of Sween and others, a filing so weak and ill-prepared that one questions whether the two spent any time on it at all. The lawyers made repeated mistakes as to Holiday’s execution date. Perhaps more importantly, they presented little information that would support the client’s motion for clemency. In short, they did precisely what you might expect lawyers to do when they’d argued against the clemency filing in the first place — they mailed it in. Perverse as always, Kretzer used the failure of this petition as justification for his opinion that clemency wasn’t needed in the first place. A perverse opinion indeed, this lawyer gave the ultimate “I told you so” to his client and his critics when he said to the media, “I’m incredibly saddened right now, but it’s a situation we predicted many months ago,”
Kretzer and Volberding are precisely the sorts of lawyers the Texas Court of Criminal Appeals wants representing people condemned to die. They took taxpayer money to do the minimum, and even stood in the way of pro bono attempts to secure additional counsel, even after assuring their client that they would assist in the process. They used concerns about the client’s “false hope” as a justification for not filing clemency, then sent to the client a letter that all but promised that client the chance to seek that clemency with the help of the Texas Defender Service or another firm. They intentionally built the hopes of their client that help would be coming, then when it came in the form of Gretchen Sween, they fought against it, extinguishing the client’s hope for good. They’re the sorts of lawyers who grease the wheels of the machinery of death, making it easier for the state to kill its citizens over the objections of “anti-death penalty groups” that these death penalty lawyers seem to hold in contempt.
David Dow and the real death penalty lawyers of Texas do not lie to their clients. They do not present those clients with false hope. In fact, they’re more often the deliverers of the worst news, communicating to clients the ugly realities. These are lawyers that face those near-certainties in the face, treating clients like human beings worthy of respect and capable of making their own choices. And they’re lawyers that preserve rather than extinguish hope. They take clemency as an opportunity to tell the story of a life, and they do so with vigor, even if their voice shakes in the face of a clemency board that might never grant another petition.
When the Texas CCA sanctioned David Dow and banished him from their courts, they ensured that people like Raphael Holiday would be represented by men who gave up the fight when there was fight left to give. The CCA got precisely what it wanted, while Raphael Holiday languished on Polunsky, wondering why not one would tell his story.