The founder of the Texas Innocence Network, who is also the litigation director at the Texas Defender Service and a professor at the University of Houston Law Center, uses his hard-won knowledge of the state legal system to maximum effect in his fifth book, The Autobiography of an Execution. Both opponents and advocates of the death penalty will find grist for their mills in this detailed account of prisoners who live in the shadow of their sentence and the public defenders who are charged with keeping them alive. Dow has represented more than one hundred death row inmates.
How many Texas inmates are currently on death row? There are 332 death row inmates in Texas. Ten are women. In 2009 twenty-four were executed.
You’re opposed to the death penalty. Is that a moral position or—not to be callous—a practical one? I was not opposed to it when I started this work, twenty years ago. Over the years, I have changed my mind. Initially, it was, as you characterize it, a practical consideration: There was no way to make the system fair. Eventually my position became a more purely moral one. I simply believe it is wrong to kill. It is wrong when my clients kill, and they should be punished. But it is also wrong when the state kills.
What do you think people most commonly misunderstand about death row? I suspect that many people assume that the murderers on death row are the worst of the worst. In my experience, that assumption is false. Murders range from despicable and cruel to unspeakably detestable and vile, but most of the people on death row committed a murder that is identical to a murder committed by someone who is not on death row. There is just a staggering degree of randomness to it. If you are wealthy and kill someone, you will almost certainly not end up on death row. If you are white and you murder someone who is black, you will almost certainly not end up on death row.
In the book, you mix and match elements of different cases. Why is that? I was, and am, very concerned about my professional obligation to maintain the confidentiality of my clients. They need to be able to talk to me without worrying that one day their story will be a vignette in a book. That said, everything I describe in the book really happened.
How does the book address the 2007 case of Michael Richard, who was executed after your office failed in its efforts to file an appeal with Judge Sharon Keller? I talk about a case where the court closed before we were able to file pleadings, and people who know of the Richard litigation will recognize the basic outline of the drama. But this book is not about the Richard case. I use it more to illustrate what I perceive as the indifference of the courts to legitimate legal claims than to attack Judge Keller or any other judge. I think there is a long list of judges who are so interested in facilitating executions that they go out of their way to deny compelling legal claims.
It’s been reported recently that there has been a steep decline in death sentences imposed by Texas juries. What do you see behind this trend? I see three major factors: First, DNA exonerations have undermined the confidence that people have in the infallibility of prosecutors. Second, even though Texas has had de facto life without parole for many years, it has had actual life without parole only for a few. When people know they can send someone to prison for the rest of his life, they tend to err in that direction rather than voting for death. But the single biggest factor, I think, is the quality of representation at trial. Death penalty lawyers used to pay inadequate attention to jury selection and to the punishment phase of the trial; they spent their time, money, and energy on the guilt phase. Over the past ten years, defense lawyers have turned that upside down. Now the focus is on punishment, on getting a life sentence. In 2009 there were nine new death sentences in Texas, but there were also four other cases where prosecutors sought death and the jury refused, returning a life sentence instead. In other words, one third of the time, the jury rejected the prosecutor’s request. That is striking. Twelve, $24.99
An excerpt coming soon.