Wednesday, March 18, 2015

In Which I Wish, If Just for a Day, My Texas License Was Still Active

I hadn't written about it because, frankly, it was hard to see how I might have done a better - or more interesting - job than Dahlia Lithwick did.  And aside from the fact that he and I have both worked on capital cases . . . .  Really, there just wasn't anything for me.  

The subject was David Dow, an effective, committed lawyer doing late stage capital defense work in Texas.  More specifically, the subject was David being held in contempt by the Texas Court of Criminal Appeals (where Sharon Keller is Chief Judge) for a maybe-late filing after having blown another deadline five years earlier.  And so he's punished by not being allowed to defend his clients in that court for a year.  It's a punishment that will hurt his clients far more than it will him. After all, they could get executed while he can't act. He can try and catch up on his sleep.

Here's Lithwick (hyperlinks removed).
One of the sad truths of the capital defense business is that some trial lawyers who show up to defend their clients have been known to sleep through their trials, fail to interview witnesses, or are too drunk to do their jobs. And yet reviewing courts almost invariably determine that such lawyers provided perfectly competent defense. As one Texas judge put it in the face of such allegations: “The Constitution does not require perfection in trial representation.” So, for instance, judges in Houston continued to appoint lawyer Jerome Godinich to represent capital defendants even as he missed one filing deadline after another, depriving his clients of crucial judicial review. That there is really no such thing as an ineffective lawyer is one of the cardinal rules of the death penalty machine. But dare to be an effective one? Well, that’s another story.
. . .
Nobody is arguing here for dissing courts or missing deadlines. But proportion is as important to the administration of justice as timeliness, and judges should know this better than anyone. We joke darkly about Texas and the death penalty a lot in this country, in part because Texas makes it so darn easy. Suspending one of the nation’s most prominent and outspoken death penalty lawyers in a snit is just silly. Suspending him for a year, while other lawyers doze and drink their way through trials as their clients face death, borders on the criminal.
As I said, I couldn't top that.

But you know, these stories have legs.  And while the Court of Criminal Appeals is the high court for criminal matters in Texas, it's not always the highest court.  That honor goes to the Texas Supreme Court which, in its realm, is, er, supreme.

From time to time, we in the law biz get to take a stand.  Speak truth to power.  Declare that this (whatever it might be) cuts to the heart of what we do and what our system is designed to do.
  • They did it in Maricopa County, holding a rally to support the Rule of Law agains Sheriff Joe and his minions who work daily to enforce the Law of Rule.  Of course, Joe's still at it, but the rally was quite something.
  • We did it in Ohio when a judge held new lawyer/new public defender Brian Jones in contempt for refusing to go to trial (it would have been his first trial) without being allowed time to prepare. Something like 75 of us signed the brief on Brian's behalf.
  • And now in Texas.
The case filed in the Texas Supreme Court, is In re David Dow v. The Texas Court of Criminal Appeals.  The document is a Petition for Declaratory Judgment Or, In The Alternative, Writ of Mandamus.  Without going into the details, it asks the court to vacate the order preventing Dow from appearing in the Court of Criminal Appeals. 

There are, to the petition, some 24 pages of text.  followed by around 50 pages listing Texas attorneys who declare
I have read this motion and join in its filing.
Nobody sent me a draft of the petition to ask if I'd sign it.  And I couldn't have signed it if someone had because my Texas license is inactive.  (Costs me a lot less than keeping it active would.)

But damn, I'd have liked to.

Because what they did today to David, they'll do tomorrow to the next person who works too hard or effectively for his clients.  

Because Law of Rule, by god.

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