Tinkering With Death
Texas Defender Service attorney David Dow's memoir covers his his work defending the condemned
By Jordan Smith,
5:14PM, Mon. Feb. 22, 2010
University of Houston law professor and Texas Defender Service litigation director David Dow's new memoir The Autobiography of an Execution (Twelve, $24.99) is a quietly written and devastating indictment of the death penalty in general, and of its practice in Texas in particular.
Although death sentences are down nationwide – and in 2009 just nine new sentences were handed out in Texas, the fewest since the reinstatement of the death penalty in 1976 – the machinery of death in Texas is nonetheless fierce: Of the 1,749 executions in the U.S. since reinstatement, 449 of them have taken place in Texas. Sentencing someone to death here is not an idle threat.
Still, Dow (who will read from his book Tuesday night Feb. 23, at BookPeople) is not sanctimonious: He knows that the majority of his clients are guilty, even though there are seven (of the more than 100 he's represented) that he feels strongly were, in fact, innocent. Dow previously believed in the death penalty, but does not now. That is in part, at least, because experience has taught Dow that upholding the rights of murderers, to paraphrase the author, doesn't really concern those who deem the death penalty an appropriate form of punishment. Many involved in tinkering with the machinery of death would hold that the ends justify whatever means, even overlooking the truth.
But facts are facts – and the truth of the matter is that when dealing in death, no one wins. "Earlier I said that life has no lessons," he writes. "That's not exactly true. There are lessons, but only for the wise. If you don't learn them, you have only yourself to blame. There might not be anything you can do about it, but it's still your own fault. Fault and free will are unrelated ideas."
A life of defending those convicted of heinous crimes and sentenced to die is a heady thing, but one full of lessons that Dow does not hide from, including the reality that anyone can be, or can do, wrong.
Many of the facts of the individual cases Dow writes about are blurred; the names of individuals involved have been changed, for example, and timelines compressed – facts obscured on purpose so that Dow doesn't break the client confidentiality that endures even after the client's death. But for anyone who knows anything at all about Texas' use of the death penalty it doesn't take long to figure out several of those that are among the cases Dow writes about. (Though I am certain that those without any direct knowledge of the Texas death machine will argue that Dow's obscuring these facts is a self-serving way to send a specific and stylized message. I could not disagree more.)
There is the case of Scott Panetti, convicted of killing his in-laws in Fredericksburg in 1992, and who, so far, has been deemed too mentally ill to be killed; there's Charles Dean Hood, whose execution was put on hold after his lawyers were finally able to prove that the judge who heard his his trial in Collin Co. had a long-time love affair with the man who prosecuted the case; and there is also mention of the case of Michael Richard, who was put to death after Court of Criminal Appeals presiding Judge Sharon Keller declared that her court closed at 5pm, a move that blocked Richard's lawyers, including Dow, from filing a last appeal of his case.
In fact, of all the people involved in doing wrong, or of doing nothing at all as these cases moved forward to death – with little, if any, real fidelity to, or interest in, the truth (and this includes incompetent defense attorneys, jurors who capitulate to one another, or prosecutors and judges that hide behind jury decisions), Dow saves some of his most biting criticism for the judges who consider death cases – and, especially for those judges on the CCA, Texas' highest criminal court, and the 5th U.S. Circuit Court of Appeals, where the CCA's often tortured logic is almost always rubber-stamped. "It's easier to kill somebody if it's someone else's decision, and if somebody else does the killing," he writes. "Our death-penalty regime depends for its functionality on moral cowardice." About the federal appellate judges, Dow writes, there are those who are, frankly, "unprincipled and hostile to the rule of law" and "look for ways to uphold sentences even where constitutional violations are egregious." Still, they are smart, he writes. "That means they are very good at hiding their lawlessness inside of recondite-sounding legalese. They look for reasons to ensure that a death-row inmate will get executed, and they usually find one."
Indeed, in the end, Dow's recounting of his role in the machinery is haunting. It is bleak. It is sad. It isn't for reading before bed. But it is absolutely worth reading because it is also bluntly honest: Dow does not shrink from calling his own bluff – the ways in which he is often simply running to keep up with the relentless pace of death penalty work in Texas, and where he may at times play a role in its dysfunction. Indeed, central to the story Dow weaves are the efforts of his and his colleagues to demonstrate that one of their clients, called "Henry Quaker" in the book, is innocent of the murder of his wife and two kids, the crime for which he is sentenced to die. In the end, when Dow is unable to prove Quaker's case, he finds himself paralyzed. Quaker has been strapped to a gurney and seconds away from lethal injection, even though a mad last appeal to stop the execution is still pending. Dow makes a frantic series of calls, but after being unable to get in touch with anyone that might be able to help – the warden at the death house, an appeal court judge, a district judge who has shown sympathy and concern about Quaker's case – he is unable to do anything more. He slumps against the wall separating him from the death chamber. He ignores his ringing cell phone. "I was idle. I was a man making phone calls, a wordsmith, a debater, an analyst," he writes. "I could have, I could have, I could have. Three words that enable all evil," he continues. "Quaker needed action. I gave him tears."
At least Dow can be honest. The entire system would indeed benefit from even just a small measure of this kind of soul searching.