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.
David Dow is one of the best-known capital defense attorneys in America today. Over his 20-year career, he has represented more than 100 people who had been sentenced to die. What he does truly matters. He was on the team representing Anthony Graves, exonerated in 2010 after serving 18 years in prison, most of them on Texas’ death row. Dow was litigation director at the Texas Defender Service and founder and co-director of the Texas Innocence Network—an organization that supervises law students working pro bono on claims of actual innocence. He teaches at the University of Houston Law Center. Dow, who is an acquaintance (I reviewed one of his books and blurbed another) has published and spoken out widely and passionately about the death penalty, particularly as it’s practiced in Texas—which happens to be the death-penaltiest state in America, by rather a large margin.
Dow is now in trouble because he filed a late petition. In October of 2014, Dow may or may not have missed a filing deadline in an appeal before the Texas Court of Criminal Appeals—the state’s highest criminal appeals court—on behalf of his client Miguel Paredes, sentenced for the triple murder of members of a rival street gang. Dow had come very late to the case and, with the execution scheduled, he discovered that Paredes’ trial lawyer had called no witnesses in this capital case, and he sought to file a petition with the court. Paredes was executed a few days later.
I say he “may or may not” have missed a deadline because one of the judges looking at Dow’s conduct in that case has written that “Dow’s pleadings were arguably timely filed,” and because, if his filing was indeed late, it was late by a matter of either 30 minutes or a few hours, depending on who’s counting.
But in 2009, Dow was also late with a filing before the CCA. So on Jan. 14 of this year, the CCA determined that Dow’s tardiness last fall was such an egregious piece of lawyerly misconduct that it warranted a contempt order. The court fashioned a new punishment and suspended him from practicing before the CCA for 12 months. (Alternative sanctions suggested by the more lenient judge on the panel included home confinement and electronic monitoring.) In other words, one of Texas’ leading death penalty lawyers has been benched for a year for maybe missing a deadline. One wonders what the sanction might be for using the incorrect font.
Where did the CCA’s draconian new filing rules come from? Dow could tell you.
Back in 2007 his office was scrambling to file pleadings in the case of a convicted killer by the name of Michael Richard. That morning the U.S. Supreme Court had agreed to hear a challenge about the constitutionality of lethal injection—the form of execution administered by Texas—and Dow’s team sought to stay Richard’s execution while the court considered the case. As members of Richard’s defense team on the Texas Defender Service later explained, their computers crashed and they asked that the court stay open 20 minutes late so they could deliver the pleading. The court’s presiding judge, Sharon Keller, who’d gone home to deal with a repairman, answered: “We close at 5.” Richard was later executed.
A complaint was filed against Keller, and a special master was appointed by the Texas Supreme Court to investigate. The special master eventually determined that Keller’s action was “not exemplary of a public servant,” but allowed her to keep her seat. He also faulted Dow’s office for the late filing and for stirring up public sentiment against Keller. In 2009, when he missed a deadline, the CCA warned Dow he’d be sanctioned if he filed late again.
And how late was Dow’s filing this October? In 2011, responding to the whole “We close at 5” unpleasantness, the CCA issued written rules governing its filing deadlines. Petitions were now “deemed untimely” if filed “fewer than seven days before the scheduled execution date.” The written rule then gives the following example: “[A] request for a stay of execution filed at 8:00 a.m. on a Wednesday morning when the execution is scheduled for the following Wednesday at 6:00 p.m. is untimely.” The example would seem to change the seven-day rule into an eight-day rule. Dow filed his motion in the Paredes’ appeal at 12:37 p.m. on Oct. 21st. The execution was set for Oct. 28th at 6 p.m. In other words, as dissenting Judge Elsa Alcala notes, he seems to have violated the deadline set out in the example, not the rule:
Dow’s pleadings were filed on October 21, 2014, by 6:30 p.m., and the defendant was executed on schedule on October 28 after 6:00 p.m. Using a period of 24 hours per day as the calculable unit of time, Dow’s pleadings were thirty minutes late under the plain language of this rule. Under the plain language of the rule itself, therefore, I would not hold Dow in contempt for filing pleadings only thirty minutes late under circumstances in which this Court still had essentially seven days to consider the pleadings.”
Now maybe it’s the fact that Dow is supposedly a two-time offender—over a 20-year career representing scores of clients, in the last-minute chaos of capital litigation—that led to an unprecedented and extreme sanction for a trivial administrative mistake. Or maybe it’s the history of public feuding and recriminations between the very outspoken Dow and the CCA that led to this bizarre punishment. But no matter the reason, it comes down to this: When one Texas lawyer repeatedly files late and his clients die, he is deemed competent and rewarded with yet more defense work. When another Texas lawyer files late, he’s ineligible to represent his clients for a full year. It could lead Kafka to swallow his own tongue.
Dow has declined to comment on the controversy, but it’s self-evident that the real victims here are his capital clients, for whom the stakes could not be higher. As Laura Arnold noted earlier this week in the Houston Chronicle: “By suspending Dow, the court is sidelining one of the most talented death penalty lawyers in the country—even as Dow is representing at least a dozen Texas death row inmates who may need to appear before this court.”
Nicole DeBorde, who is heading up his new defense team, made the same point in an email: “Unfortunately, his clients—who are poor and are being represented pro bono in many cases—are losing their last hope at a thoughtful legal vetting of their cases because Dow cannot represent them in their last months of life. It would be extremely difficult, if not impossible, for these individuals on death row to find competent counsel to aid them in their cases at this point. If this suspension is allowed to stand, lives could be lost as a result.”
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.