Maybe you wouldn’t want David Dow to be your BFF, and you probably wouldn’t want him to be your dinner party companion either. He has the burning eyes of a zealot, the sheared head and hollowed cheeks of a penitent, and the focus and drive of a cheetah. He does not suffer fools. Put another way, there’s no “Tons o’ Fun” sign flashing across the 55-year-old’s forehead.
The case could be made that Dow’s appearance and his manner are occupational hazards: the founder of the Texas Innocence Network, Dow is the foremost death penalty lawyer in the state. He has consulted on more than one hundred such cases. Two death row inmates, Anthony Graves and Michael Toney, were freed from prison with help from his team at the University of Houston; others were given new trials or spared the death penalty because Dow and his colleagues could show—where the defendants’ previous attorneys had not—that they were too young or too intellectually impaired when their crimes were committed to be executed. But thanks to a ruling by the Texas Court of Criminal Appeals last January, Dow could be essentially put out of business for an entire year. The only hope for him and, more important, his desperate (and possibly innocent) clients is the Supreme Court of Texas, which can overrule the CCA. While we await that decision, which could come at any time, ponder this: what happened to Dow illustrates just about everything that is wrong with the CCA.
Texas and Oklahoma are the only states with such a court, which serves as the last resort for those convicted of a criminal offense. It is a vestige of Reconstruction, during which time the populace decided that justice on the frontier could not be meted out swiftly enough through the regular courts, hence the establishment of a venue specifically designed to maintain order by getting thieves and murderers to the gallows ASAP. For all its good intentions, the CCA has never been a model of judicial integrity: for most of its history, it countered harsh laws with indulgent enforcement—releasing the guilty on ludicrous technicalities was its specialty. For instance, in 1945 the court reversed a murder conviction involving a drowning because the state had failed to note in its pleadings that the victim had drowned in water.
Over time the CCA changed, but not necessarily for the better. As the state became more conservative in the nineties, the court became relentless in its quest to send inmates to their deaths—men who were often poor and often of color—even when evidence suggested they had not committed the crimes they had been sentenced to die for. Between 2009 and 2013, for example, the CCA heard seventy direct death penalty appeals. It affirmed every single conviction.
For the past twenty or so years, David Dow and the death penalty clinic he runs for law students at the University of Houston have provided one of the very last lines of defense for the accused, and they do it pro bono. Death penalty cases are not popular with Texas criminal lawyers, and even when big civil firms take them on they are problematic. They are time-consuming, expensive, and extremely complicated; most lawyers do not have the legal training to handle them, and their clients do not have anywhere near the millions of dollars required to launch a suitable defense. The criminal bar—and the rest of the state, for that matter—has been more than willing to pass this work on to Dow, who, along with a nonprofit law firm called the Texas Defender Service, has willingly taken up what most of the criminal bar calls the Lord’s work. They try to make sure that the system doesn’t go awry and execute an innocent person.
“Try” is, of course, the operative word, because the cards are stacked pretty heavily in the state’s favor. It isn’t easy to get a stay of execution; attorneys have to present the court with a substantial amount of information to win a delay, much less a new trial. For instance, in September 2014 Dow began looking into the case of Miguel Paredes, who was sent to death row for a gang-related killing in 2001. Paredes’s execution date was set for October 28, 2014. In the 39 days before the execution, Dow’s team—which was working on three other death penalty cases at the time—traveled to San Antonio (where Paredes grew up and the crime was committed) and to Livingston (where he was incarcerated in the Polunsky Unit of the Texas Department of Criminal Justice). They searched for additional witnesses. They scoured Paredes’s medical, psychological, school, and prison records. They pored over the trial transcript. In doing so, they uncovered what Paredes’s lawyer had not: evidence that the killing was actually in self-defense. Dow’s team also found that Paredes had a history of mental illness and that the state had put him on powerful psychotropic medication during his trial. The jury hadn’t known any of this, and during the punishment phase, Paredes, drugged and hopeless, instructed his lawyer to waive his right to present mitigating circumstances that might spare his life.
Eleventh-hour appeals—the kind you see in the movies—no longer happen. The CCA needs time to evaluate the record and any new information. Dow filed all of his pleadings in Paredes’s case by 6:30 p.m. on October 21, 2014, in compliance with rule 11-003, which says that pleadings requesting a stay must be filed seven days before an execution date. The judges took exactly two days to deny Dow’s motion. Paredes was put to death, right on schedule.
In November, however, the CCA sent a notice to Dow asking him to appear in court on January 14 to explain why he should not be sanctioned for filing Paredes’s documents late. Dow found this mystifying; he had filed his plea after-hours on October 21, but late filings on death penalty cases are actually fairly routine. There is even a part of the rule that addresses it, which Dow had followed, explaining in his motion that he was still gathering evidence even at that late date to try to save Paredes’s life.
Dow appeared at the hearing without counsel. He explained again why the filing had been late, even though it really hadn’t been. (Instead of relying on the rule itself, the judges seemed to be claiming that Dow had been late according to an example described in the rule, which seemed to suggest that pleadings should be filed eight, not seven, days before: “For example, a request for a stay of execution filed at 8 a.m. on a Wednesday morning when the execution is scheduled for the following Wednesday at 6 p.m. is untimely.”)
Things got even stranger as the hearing continued. Judge Elsa Alcala asked Dow how he got paid. Judge Cheryl Johnson suggested that if Dow and his lawyers were too busy to make their deadline, maybe they should take on fewer cases. “It seems to me that if you are really that busy, then you should pass it on to other people to avoid this grave situation,” she said, seemingly unaware that Dow’s team had taken the case precisely because Paredes’s earlier defense had been negligible and no other criminal lawyer had stepped up to take on the appeal. Another judge asked why Dow had had such a busy summer. Johnson also seemed uncertain about the details of Paredes’s defense. Presiding judge Sharon Keller reminded Dow that the court had warned him when he had been late on another filing in 2010; the court had taken no action then but had threatened Dow with sanctions if he was ever late again.
The interrogation, patronizing in tone, went on like that for the better part of an hour. Then, instead of assessing a $1,000 fine and sentencing Dow to two years’ probation, which had been an option, eight members of the CCA, with only Alcala dissenting, suspended Dow from practicing in their court for one year. He had been warned, after all, and deadlines are deadlines. What kind of chaos would ensue if no one respected the rules? The CCA didn’t know the answer, because it had never before suspended a lawyer for a late filing.
As it turns out, there was another reason for the uniquely harsh punishment. Bad blood between Dow and the court dates back to at least 2007, when Dow and his team were late filing an appeal for death row inmate Michael Richard. Dow requested that the court give them an extra fifteen or twenty minutes. Keller had gone home early that day to meet a repairman, but her general counsel called her to ask about an extension. Her infamous answer—the one that was pretty much heard around the world and made her an international subject of derision—was “We close at five.” Richard was executed a few hours later. The entire episode was so shocking that a formal investigation was launched. It concluded that Dow and his team bore “the bulk of fault for what occurred,” but it also found Keller’s behavior to be “not exemplary of a public servant.” Her lawyers blamed Dow for the whole embarrassing episode, and tensions mounted when Dow, in turn, started requesting that Keller recuse herself from his cases.
Maybe Dow wasn’t very respectful of the court; at least some of the judges on the CCA perceived him as someone who expected special treatment and who did not do much to hide his disdain. But on this go-round, it is the CCA’s behavior that is both willful and capricious. In response, more than 250 criminal lawyers have signed the appeal that Dow’s attorneys sent to the state Supreme Court, the only body that can override the CCA’s decision. As of this writing, more than 45 civil lawyers and firms, including Vinson & Elkins and Susman Godfrey, have also filed amicus briefs in Dow’s defense, claiming that the court overstepped its bounds, a move as unprecedented as Dow’s sanctions. Of course, it did overstep: acting as prosecutor, judge, and witness while sanctioning an attorney is not usually condoned, even at the CCA, and neither is twisting the rules to fit an agenda. Even if Dow was late, the law requires that his conduct had to have been fraudulent or a clear attempt to obstruct justice for the sanction to be appropriate. The dissenting Alcala, in fact, called the suspension “ineffective, unwise, excessive, unjust to victims, and chilling to defendants and other attorneys.”
It is the “chilling” effect of this case that is the most threatening to anyone who cares about maintaining a just society. There is reciprocity between courts; Dow could be prohibited from practicing not just before the CCA but before the federal district courts in Texas, where he also has clients sentenced to death. “As a result,” his lawyers wrote in Dow’s petition, “people may die, some of them innocent, with valid claims their court appointed and publicly paid lawyers failed to develop out of fear of sanction by the CCA.” In other words, it isn’t enough that death penalty cases are prohibitively expensive and legally complex. Now any lawyer who is actually willing to fight for a death row inmate could face sanctions and be put out of business. This from a court that has rarely if ever sanctioned attorneys for such infractions as submitting incomprehensible pleadings, or defending a death penalty case while drunk, or failing to notice that his or her client has the IQ of a sixth grader—or simply snoring through a client’s murder trial.
As one attorney familiar with the CCA put it, “The court has truly failed to oversee lawyers who do capital punishment work. It’s all too convenient for them to get rid of the one lawyer who does it well.” Now it’s up to the Supreme Court to bring him back.