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.

They'd Rather Have Closure

The title of this post is part of what special prosecutor Raymond Fuchs said in explaining why the family of Louella Hilton went along with it.

"It," in this case, is a life sentence with the possibility (although surely not the likelihood) of parole for Gabriel Gonzales in Bexar County, Texas.

Some 13 years ago, Gonzales was sentenced to die for killing Hilton. As Craig Kapitan in the San Antonio Express-News tells it:

Gonzales was a 20-year-old member of the Crips gang who was known as “Capone” when he and four others were alleged to have stormed into Louella Hilton's Austin Highway store on the morning of June 20, 1994.

During his 1997 capital murder trial, prosecutors described him as the one who planned the heist in an attempt to gather more guns for his gang. He was also accused of serving as the triggerman, shooting Hilton three times through a closed door as she dashed for a 12-gauge shotgun in her office.

At his first punishment hearing, prosecutors described a lengthy criminal history and produced a letter they said Gonzales wrote from jail in which he pledged to kill a witness.

You read that, you think Texas, and you understand why he got death. But then, and this is unusual, the Texas Court of Criminal Appeals called a do-over. Here's the key part of the majority opinion. (I've omitted footnotes.)

The evidence and arguments at the punishment hearing would have been significantly different with the mitigating evidence adduced at the applicant's habeas hearing. The habeas court accepted as true that the applicant's father forced him to perform oral sex on him weekly beginning when the applicant was less than six years old, and that his father had anal intercourse with the applicant weekly from the time he was seven years old. The applicant's father was also physically abusive towards the applicant if he resisted, and would threaten to kill the applicant, as well as the applicant's mother, if the applicant ever told anyone about the abuse. The applicant's father also sexually molested the applicant's sister numerous times during her childhood. It is not clear from the record when the abuse ended, but the applicant lived with his father until his parents divorced in 1988, when the applicant was fourteen years old.

The habeas court accepted as true the conclusions of Dr. Raymond D. Potterf, a board-certified psychiatrist who examined the applicant and diagnosed him as suffering from Post-Traumatic Stress Disorder due to the repeated physical and sexual abuse he suffered. Dr. Potterf also concluded that the applicant had a "Borderline Normal Intelligence Quotient which would lead to poor processing of information and probably lower level of control of behaviors which included antisocial behaviors and impulsive behaviors at an early age." The habeas court accepted Dr. Potterf's conclusion that, if given extensive psychiatric treatment for Post-Traumatic Stress Disorder and Chemical Dependence, the applicant could perhaps become a productive, law abiding member of society. None of this evidence was presented during the applicant's trial.

We believe the mitigating evidence presented at the habeas hearing is substantially greater and more compelling than that actually presented by the applicant at his trial. We cannot say with confidence that the facts of the capital murder and the aggravating evidence originally presented by the State would clearly outweigh the totality of the applicant's mitigating evidence if a jury had the opportunity to evaluate it again. In short, we conclude that the applicant's available mitigating evidence, taken as a whole, "might well have influenced the jury's appraisal" of the applicant's moral culpability. Therefore, there is at least a reasonable probability that, had this mitigating evidence been available at the applicant's original punishment hearing, a different result would have occurred, such that it undermines our confidence in the outcome.

The Express-News talked to Hilton's daughter when the court's decision came out. She said she was

stunned by the ruling, said she didn't know how she would feel if Gonzales successfully evaded execution. She was, however, exasperated that a new sentence — life or death — likely would start the appeals all over.

"I'm going to be an old woman" before the case ends, Darla Hilton-Gurkins said. "I was only 27 when it happened and I'm almost 40 now.

Sure. These things drag on because with life on the line, there's every reason to keep litigating, especially because reversals happen a fair percentage of the time.

Anyway, now we're back in Bexar County. Time for a new sentencing. Which means going through it all again. And then . . . . Who knows?“I did talk to (Hilton's) family about it and explained what I thought all the problems were,” Fuchs said. “They agreed they'd rather have closure than for it to continue on.”

In this business, "closure" is the "C word." Proponents of executions like to toss it around. Seeing the killer killed, they say, will bring closure to the family of the victim. Whatever that means exactly (relief? an end to suffering? additional sufferering, now by the family and friends of the person executed? schadenfreude?), the studies don't indicate that the families of the victims of homicide derive any real peace or comfort from the death of the killer.

All they get is an end to process. And there's a much faster way. Just take death off the table.

Hilton's family got it. It's over now. Case closed. Which is maybe what closure means.

******************

Of course, that's Texas. Here in Ohio, things continue unabated.

The Ohio Supreme Court yesterday refused to stay Mark Brown's execution, scheduled for Thursday, so that he can have time for appellate review of the substantial evidence that he's factually innocent of the murder for which he's about to be killed.

Today, the court set serious execution dates for three more men. That brings us to 8 scheduled murders. One a month through September. If they all go, it will be 9 in the first 9 months of the year. Expect more. Double Digits. Oh, and on Thursday we'll be tied with Texas for the most executions so far in 2010.

Here, to help you keep track:

• Mark Brown - February 4
• Lawrence Reynolds - March 9
• Darryl Durr - April 20
• Michael Beuke - May 13
• Richard Nields - June 10
• William Garner - July 13
• Roderick Davie - August 10
• Kevin Keith - September 15