"Sheer Political Retribution"
March 22, 2015 3:08 PM   Subscribe

David Dow is an attorney and law professor in Texas who has represented over 100 death row clients. He has been suspended by the Texas Court of Criminal Appeals for missing an appeals filing deadline...or did he?

The rule states sets the deadline at seven days prior to the scheduled execution. However, it is followed by an example implying that the deadline is eight days prior.

Meanwhile, other attorneys have fallen asleep during capital trials in Texas without consequence.

300 lawyers have asked the Texas Supreme Court to overturn his suspension

As Laura Arnold, a former board member of the Innocence Project, put it:
"There is no question that the punishment imposed on David Dow by the TCCA was unprecedented, disproportionate and excessive. There is strong reason to believe that the magnitude of Dow's sanction was rooted in nothing more than sheer political retribution. The Texas Supreme Court, as the highest court in the state, has the opportunity—and, I would argue, the obligation—to right this wrong. Only then can we hope to restore credibility and fairness to our criminal appeals process."
posted by Blue Jello Elf (16 comments total) 10 users marked this as a favorite
 
Texas really needs an intervention for its "kill people" addiction. Maybe some of the friendlier states could sit down with it and explain how all this is affecting everyone?
posted by GenjiandProust at 3:37 PM on March 22, 2015 [10 favorites]


You want to get in a room with them?
posted by Tell Me No Lies at 5:10 PM on March 22, 2015 [3 favorites]


There's no doubt in my mind that in addition to the court pissing on Dow personally, this is a middle finger to the death penalty defense bar about the Sharon Keller/Michael Richard debacle. The whole thing is disgraceful.
posted by immlass at 5:18 PM on March 22, 2015 [3 favorites]


Mr. Dow should have been aware that this could happen if he was late again. In an adversarial system, both defenders and prosecutors take advantage as they can. And how many times has he attempted to stop a murderer's execution over some technicality? I'm not outraged.
posted by knoyers at 5:36 PM on March 22, 2015


In an adversarial system, both defenders and prosecutors take advantage as they can. And how many times has he attempted to stop a murderer's execution over some technicality? I'm not outraged.

I think denying the appeal in question would have been perfectly fine. Suspending him for a year for a single missed filing deadline is, as noted above, unusual, and, I would argue, completely out of proportion.
posted by thegears at 5:41 PM on March 22, 2015 [13 favorites]


Did you read the second--or any--links?
posted by feckless fecal fear mongering at 5:42 PM on March 22, 2015 [6 favorites]


not you, thegears
posted by feckless fecal fear mongering at 5:42 PM on March 22, 2015


In an adversarial system, both defenders and prosecutors take advantage as they can.

Sharp dealing is a real thing that is generally frowned upon, especially when we're talking about criminal law where the prosecutor is obliged to represent the unbiased opinion of the State rather than a client.
posted by Lemurrhea at 6:42 PM on March 22, 2015 [5 favorites]


And how many times has he attempted to stop a murderer's execution over some technicality? I'm not outraged.

So when you say "technicality," to be clear, what you actually mean is "the state's choice to break the law."
posted by KathrynT at 9:54 PM on March 22, 2015 [13 favorites]


So when you say "technicality," to be clear, what you actually mean is "the state's choice to break the law."

Does that mean that the technicality in this case was "his choice to break the law"?
posted by parliboy at 10:10 PM on March 22, 2015


And how many times has he attempted to stop a murderer's execution over some technicality? I'm not outraged.

Out of curiosity, how many people can the state kill because of technicalities before you will be outraged? They are a two way street after all.
posted by Tell Me No Lies at 10:11 PM on March 22, 2015 [3 favorites]


In an adversarial system, both defenders and prosecutors take advantage as they can.

In the sense that they are supposed to provide the best *legal* case they can for their client, being respectively the state and the defendant in a criminal trial. They are supposed to win a negotiation or debate of sorts between equals with equal access to the facts. (In practice, one finds an enormous amount of withheld evidence and so forth, with prosecutors' offices more culpable in most studies than anyone else.)

Trying to get the other attorney disbarred is about as "adversarial" as arranging for the doors to a debate hall to be locked at the moment the start is scheduled when you know your opponent might be a minute late. It's not an attempt to win the debate, it's an attempt to keep one side from the debate int he first place. It's an attempt to remove the "adversary" from the process entirely. (Note also the fact that defense attorneys sleep through trial portions without sanction.)

Leaving aside the death penalty debate writ large, the criminal justice system in Texas is an embarrassment to anyone who actually believes in the adversarial process you describe. From your comments about "technicalities" and "murderers" I gather that you don't much care; you want outcomes that eflect your third-hand opinions, not a system in which the truth emerges from vigorous, even-handed debate or one that takes the rights of the accused into consideration. You are angry, and you want the world to be little more than the mirror of your anger. How sad.

Does that mean that the technicality in this case was "his choice to break the law"?

The links above provide quite a bit of context that robs this attempt at a "gotcha" of any real bite. It might also be noted that the state has quite a bit more power and resources than any particular defendant, and that when it loses a case it is not stripped of legal rights or powers as a losing defendant is.

Part of why the rights of the accused receive such emphasis in the American criminal justice system is that defendants generally have more to lose and less personal power than prosecutors. (There are exceptions when the defendant is wealthy or well-connected, but these are not the kinds of cases where Texas does so poorly. T. Cullen Davis is worth looking up sometime.) The consequences of allowing widespread prosecutorial abuses -- something which I am convinced we do in the United States -- would destroy far more innocent lives in the end than any individual murderer.

Understood in this light, the state's use of its power to go after the attorney over a late filing, rather than to make cases against his clients, comes off as a contempt for this system and the principles behind it.
posted by kewb at 3:49 AM on March 23, 2015 [22 favorites]


> "Does that mean that the technicality in this case was 'his choice to break the law'?"

He stepped in at the last minute to take on a case that the original defense team screwed up through negligence or incompetence, and filed an appeal at a point that may or may not have been late depending on how an ambiguously worded law is interpreted.

This is not so much a "technicality" as raw vengeance. And it is even less a punishment for lawbreaking.
posted by kyrademon at 5:20 AM on March 23, 2015 [7 favorites]


Filing deadlines in capital cases are notoriously difficult to keep track of, even in states which don't, unlike Texas, relish executing their citizens and take every opportunity to make the process even more arbitrary, inscrutable, and hostile.

Suspending a well-known death penalty lawyer for missing the deadline would be outrageous and indefensible, a complete abuse of judicial discretion and arguably an impeachable offense, but you know, Texas.

Texas should probably just do away with the black robes and move towards the Judge Dredd model of the judiciary with the gold armor, uncaring facemask and plenty of 2nd Amendment remedies. Why not just cut to the chase?; accuse, arrest and execute all at the first point of contact with the judicial system? It'd certainly solve the shortage of phenobarbital, and who needs pesky defense lawyers getting in the way of the divine right of the State to kill in blind fury with no questions asked?
posted by T.D. Strange at 5:49 AM on March 23, 2015 [2 favorites]


"Does that mean that the technicality in this case was "his choice to break the law"?"

The U.S. Constitution is based on the idea that the only way to keep the state from becoming tyrannical is to explicitly enumerate its powers, with all else proscribed. That means that fundamentally a lawyer failing to file is acceptable in a way that the state transgressing its boundaries isn't. This is a central contention of American (classical) liberal democracy.

I mean, unless you're objecting to the weird imputation of agency to the state, which, yeah, but we tend to allow some metanymic slack here in the MeFi styleguide.
posted by klangklangston at 7:07 PM on March 23, 2015


Blue Jello Elf: "There is no question that the punishment imposed on David Dow by the TCCA was unprecedented, disproportionate and excessive. There is strong reason to believe that the magnitude of Dow's sanction was rooted in nothing more than sheer political retribution. The Texas Supreme Court, as the highest court in the state, has the opportunity—and, I would argue, the obligation—to right this wrong. Only then can we hope to restore credibility and fairness to our criminal appeals process."
I was with them right up until that fantasy that this act of justice would be sufficient to make the Texas court system look like more than a racist, murder-happy pigpen of idiots.
posted by IAmBroom at 6:54 AM on March 24, 2015


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