Thursday, February 4, 2010

Deuteronomy Trumps the Sixth Amendment

I'd do exhaustive research, write a powerful legal argument, and then watch no one pay it any heed. The problem with this lawyerly approach is that nobody cares about rules or principles when they're dealing with a murderer. The lawyer says that the Constitution was violated every which way, and the judge says, Yeah, but your client killed somebody, right? For all our so-called progress, the tribal vengefulness that we think of as limited to backward African countries is still how our legal system works. Deuteronomy trumps the Sixth Amendment every time. Prosecutors and judges kowtow to family members of murder victims who demand an eye for an eye, and the lonely lawyer declaiming about proper procedures is a shouting lunatic in the asylum whom people look at curiously and then walk on by.
David Dow, The Autobiography of an Execution.

I've been defending people in death penalty cases since I started working for a criminal defense lawyer while I was in law school. I've represented people at every stage of the process from arraignment in a death penalty case through execution. I teach at continuing education seminars where lawyers go to get specialized training in death penalty defense. I've never represented anyone who went to death row on my watch, and I've gotten a number of men off the row. But I've also failed, too many times, to get a client off

All told, in Texas and Ohio, I've probably been involved in 25 or 30 death penalty cases. That sounds like a lot, but compared to David Dow, I'm a piker. He's represented somewhere over 100 men (and women, I'm pretty sure) on death row. And he's done it all in Texas where he's both a law professor and the litigation director of the Texas Defender Service.

He's written about it before. In Executed on a Technicality: Lethal Injustice on America's Death Row, Dow explains how the law is cramped and the legal process unfair. Those executed, even those sentenced to die but not killed, are not typically the worst of the worst who've done the worst things. They are, instead, those with the worst luck: the poor, people of color, people with lousy lawyers, you get the idea.

The Autobiography of an Execution is different. It's not about death penalty law. It's about what it means, on a day-to-day basis, to be a death penalty lawyer. It's about fighting tooth and nail and racing the clock to save your client's life. It's about how you do that and then go home to your wife and son and try to have something like a normal family life.

Dow tells one story throughout, the story of one case, one man, one life to save. Hanging on that are others. They're all desperate, all frantic. They're not stories about justice or morality or fairness. They're about a system of caprice and mean spiritedness where at least some of the players would be otherwise.

It's about the execution system, and it lays that system bare. But mostly it's about us, the folks who try to stop it. So it's about Dow. And the clients. And about both looking at and fighting against the world.

TDow tells of Van Orman, an innocent man on death row. He simply didn't commit the crime. He's also got mental retardation. Dow proves the retardation and gets him off the row. Now the innocent man will do life in prison.
But I'm a death-penalty lawyer and Van Orman won't get executed, so I count is as a victory. One of my clients committed suicide a week before his execution. That's a victory. Another died of AIDS. A victory.
You bet. I had a client who died of hepatitis right after I filed the papers asking the U.S. Supreme Court to hear the case. He died before the state had a chance to reply, certainly before the Court ruled. That goes down as a win. That's how it works when you're doing death penalty defense. Whenever the government doesn't murder your client, you've got a win.

There's something perverse about that, of course. The client may be dead, and you're cheering. The client is doing life without parole. That's the agonizing death in prison without hope of redemption. Yippee! But see, there's the alternative.

And it's a roller coaster. You win in the district court, then lose in the court of appeals. You win in the court of appeals and have to fight to convince the supreme court that it doesn't want to hear the case.

Your client gets an execution date. You ask for a stay. Do you get it? Do you go to another court? Can you?

I was working a direct appeal. I found a great issue. It should have been reversible error - the stuff that might have guaranteed a new sentencing proceeding. Unfortunately, I didn't discover it until the case had already been briefed and was set for argument. Too late to raise it now, and maybe no opportunity to raise it later. I struggle and find a way to maybe save it. Win the appeal so I don't have to.

Another appeal. I win. Client leaves death row. He won't speak to me. He wanted to walk out of prison. It's not that easy, dammit.

So Dow goes home and has a drink and a cigar and maybe is too harsh with the kid that night before the very real apology, because it's the kids, the dog, the home life that keeps you grounded in all this. The next day the same thing over again.
The cases I have written about are not unusual. My other cases, every death-penalty lawyer's cases, are just like them. What's missing is the proof that what you have just finished reading is mundane. The day after Henry Quaker got put to death, my colleagues and I went back to the office and did it all over again, and all the same things happened.
The bizaarre, the schizophrenic (I'm using the term colloquially), they're the quotidian in this world. And Dow gets it right.

The business isn't about truth, if there is such a thing. It's certainly not about justice or fairness. In the balance of fair and just and right, the dead body on the floor or the bed or in pieces in the dumpster will always outweigh whatever our clients can present. Our fight is to find a way around that, to rewrite Deuteronomy.

And then to go home and not abuse alcohol or drugs or the family.

I know a lot of death-penalty lawyers, though Dow isn't one of them. Never met the guy. I do know a lot of the people who've worked with him and under his direction, though. Good people. Good lawyers. Passionate. Committed. For them, for us, for Dow, who we are is very much what we do.

Dow would have it be otherwise, I think. But as he tells his story, for this is a memoir, he reveals that he is what he does. There's an intensity that he can't escape. That we can't.

Dear David,

Thanks for writing.


  1. Just heard that Dow will be interview on "Fresh Air" this coming Monday, 8.Feb. --Darwin

  2. I don't know anything about Dow or don't really have an interest in capital punishment, etc. However- I was greatly surprised to be completely engrossed when stumbling upon his interview yesterday on Fresh Air as I left my office to run an errand during my lunch hour. The station happened to be turned onto NPR and I heard him speaking about what it's like to tell someone the appeal was denied and they had literally about 30 minutes to prepare for execution. It's another one of the few times you find yourself not caring what they did, but seeing them as another human being.

    I am looking forward to reading the memoire he wrote. Once again- completely out of my typical interests- but somehow that interview hit me.

    -Sohni, Chicago, IL

  3. I must say, that for years I never really thought about the death penalty. Yep, I live in Ohio and after reading many of your posts, I find myself against the death penalty. Mainly, because I feel the risk of killing someone who might be innocent is too big of a risk. Also, the death penalty, causes the ongoing legal issues for defendants. Life without parole is more than sufficient for murders (and cheaper). But I am a person who feels that ANY defendant who has not freely and wholly admitted their guilt, should never be put to death as there is always a chance they are innocent. And what does killing another give anyone? Even victims do not get closure from the killing. Oh sure, if you think someone killed your loved one, you'd naturally like to kill them...but what is gained...a moment of satisfaction?

  4. Glad to have you with us.

    The risk is real. Given enough executions it's a mathematical certainty.

    And thanks for reading.

  5. I heard David speak on our local NPR affiliate talk show in Dallas yesterday, went to the book signing last night, and read the book in one sitting. I can't recommend it enough. Thank you for doing so in such an eloquent way.