When the stakes are life or death

In the same week that the Florida Supreme Court rejects the appeal of an inmate with schizophrenia, now due to be executed Monday, Texas death row lawyer David R. Dow explains why he continues to figh­t these losing battles.

Last week the United States Supreme Court dismissed pleas from the lawyers of Texas death row inmate Jonathon Green to spare his life on the basis that he was long-term mentally ill and suffering from schizophrenia. Green, who protested his innocence up until his very last breath, was executed by lethal injection becoming the 10th inmate to be executed in Texas and the 31st prisoner to be executed to be in the US this year alone. The rejection of this type of appeal is not an isolated case.

Despite a United States Supreme Court ruling in 1986 deeming it unconstitutional to execute anyone lacking the “the ability to comprehend the nature of the penalty” a series of executions have taken place this year, and many others since the ruling, of reportedly mentally ill inmates. This summer Amnesty International commented it was "highly disturbing" that the courts had refused to grant a stay in the execution in Texas of Marvin Wilson, despite his low IQ of 61. It is not only Texas that continues this practice as currently spates of legal disputes have taken place across the US. Among these stories is the controversial case in Florida this week where the state Supreme Court rejected the appeal of senior citizen and diagnosed paranoid schizophrenic death row inmate John Ferguson, effectively giving permission to the state to carry out the execution next week. The ruling has prompted outrage amongst critics of the death penalty including an editorial condemning the decision in Thursday’s New York Times. His lawyers are now appealing to the US Supreme Court and his new execution date is scheduled for Monday.

Lawyer David R. Dow has represented over 100 death row inmates in his 22 years battling against a system that in recent years has legislated so it is nearly impossible for condemned men to be granted relief. Visiting London last weekend he explained to the annual LifeLines conference, an organisation that connects people living in the UK to death row inmates through letter writing, why he keeps, as he jokingly tells the group, “beating his head against brick wall”.

As a law professor at the University of Houston Law Centre one of his former students was part of the team that represented Green last week, in what he thinks was an unfair execution. Dow comments that “Jonathan Green was crazy. Jonathan Green was a crazy man and any just death penalty regime would not have executed him”. Dow argues that even if the United States Supreme Court decides to side with Ferguson on this rare occasion there is still a significant problem with the differing interpretations of taken by individual states courts compared to precedents set by the Supreme Court. Despite the Supreme Court deeming the execution of prisoners who are mentally ill or of diminished intelligence as an unconstitutional act very rarely does this actually save lives as it fails to enforce its own rulings. In Texas, David points out “eight, ten, twelve people have been executed who even if one day the Supreme Court changes its mind will still have been executed”.

While most people would expect that the death penalty system in the United States is getting fairer the reality is quite the opposite. Since the reintroduction of the modern day United States death penalty in 1977, Dow argues it has become staggeringly difficult to gain relief for his clients, mentally ill or otherwise. Instrumental in this was the introduction of the Antiterrorism and Effective Death Penalty Act of 1996, introduced under the Clinton administration following on from the 1993 bombing of the World Trade Center. 

As Dow explains,

“Between 1977 when the death penalty came back and 1995 which is the year before act came in about two thirds of death row inmates got relief on legal appeals. That doesn’t mean they got out of prison, it means that they got a new trial. Two thirds. Think about that. Two thirds of all death penalty trials had such a significant error that they had to be retried.”

“In death penalty cases two out of three were getting reversed. 80 per cent of the people who got relief and got a new trial were sentenced to life sentences. You can do the math yourself, it means that almost half the people on death row ended up with death sentences because of mistakes at their trials. From 1995 to the present - the same window of time but this side of the Act instead of that side - the percentage of death row inmates that get relief is not above 9 per cent any jurisdiction. In Texas it is about 4 per cent. So that has gone from two thirds to 4 per cent.

Faced with such diminishing odds Dow often finds people asking how he became a death row lawyer and why he continues in this apparently thankless work. The answer to the first part was simple, it was an accident.

After graduating he initially decided to teach and began specialising in the legal issues surrounding habeas corpus, the writ that allows convicted prisoners to appeal and challenge their conviction. During this period of the early 1990s it just so happened that the most significant cases relating to this area were death row appeals. Around the same time Congress set aside some money to recruit volunteer lawyers to represent death row inmates who until that time, much to David’s amazement, hadn’t been allowed lawyers in their habeas corpus appeals. Given that the literacy skills of the typical death row prisoner are below average David said it was “a farce” that inmates were expected to navigate what he finds an “extremely complex” area of law.

One Saturday afternoon David went with his friend who had been enlisted with recruiting lawyers in the Texas area to help with these cases. On the way home in the car his friend asked him if he would represent one of the condemned men, who was without a lawyer and due to be executed in two weeks time. He would, his friend argued do a better job representing the man than the man would do representing himself. Dow says the decision was an obvious one: “If you have a law degree and a beating heart that is a very hard offer to say no to.”

On his 50th Birthday an extraordinary coincidence occurred that reaffirmed David’s belief in his chosen career path had been the right one. Whilst in college David would spend his spare time visiting local art galleries. On one memorable trip he saw a painting by entitled Jacobs Dream that depicted the biblical story from Genesis which struck him profoundly. After speaking to gallery owner and realising he was unable to afford the painting he cycled home and read the story in the Bible before pushing the event out of his mind. Almost 30 years later on his 50th birthday while holidaying in Utah later he received a voicemail from Texas. It was the owner of the gallery where he had seen that painting all those years before. She wanted to know if he would represent the son of the artist who was on death row for murder. He is a non-religious man but that after such an amazing chain of events he found it difficult to believe there wasn’t something calling him to these cases.

Dow began his career having not taken a personal stance on the death penalty. “I wouldn’t describe myself as someone who was strongly in favour of it. It was just not an issue that occupied very much of my time. I hadn’t thought about it really at all,” he says. While he and many of his colleagues continue to face steeped criticism from supporters of capital punishment Dow is very much vocal in his support of rational debate surrounding the subject.

Most of his clients come from what he calls “families so dizzyingly dysfunctional that you really need a new word in English to describe it because dysfunctional doesn’t even come close”. However he stresses he is not making excuses for the act of murder.  “I am familiar with the details of hundreds and hundreds of murders and they range from despicable and vile to unspeakable and heinous. There’s no such thing as an okay murder,” he says.

Another increasingly huge factor as to why so many the death row appeals are unsuccessful is the legal resources granted to inmates. As Dow argues, it is not the competency of the lawyers that has a direct impact on the outcome of appeals but insufficient resources. He says “When I investigate a case on behalf of my clients I investigate back three generations of the family tree. I have charts in my office that have three generations that can show mental illness, that show alcoholism, physical and mental abuse. These are big big jobs. By the time my client is executed I know more about them than anybody in the world. I know more him than he knows about himself. I probably know more about him than I know about my wife because there is not a person he has ever known who I have not talked to or tried to talk to. Now I just want you to try to think for a moment about the resources required to try and conduct that kind of investigation. That is an expensive proposition.”

Dow says that what happened to his beliefs surrounding the death penalty is “what happens to every death penalty lawyer, whether a supporter, a death penalty agnostic or a completely death penalty foe, which is you get to know your clients”. 

When asked why he continues to be a death row lawyer in the face of such apparent unfairness he says it is because although it is rare to save a life the support he and his colleages can give to prisoners it helps them in less obvious ways. In unsuccessful appeals he has physically seen many of his clients executed when they have asked him to attend their executions. However in most cases the decision goes right down to the wire Dow had call them from the court and tell them their fate. Their reaction, he says is why his job is worth it. “Do you know what they always say to me?” he says. “Thank you. I call to tell them I’ve lost and they’re about to be executed and they say thank you. And before you got want to make sure I thank all the other lawyers on the team. The reason they’re saying thank you is that they never had anybody who cares about them before.”

David R. Dow is the author of several books on the death penalty details of which can be found on his website http://www.davidrdow.com. For more information about LifeLines and how to write to death row inmates visit http://www.lifelines-uk.org/

Anti-death penalty activist Delia Perez Meyer addresses a rally outside the US Supreme Court. Photograph: Getty Images
ANDREY BORODULIN/AFP/GETTY IMAGES
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Letter from Donetsk: ice cream, bustling bars and missiles in eastern Ukraine

In Donetsk, which has been under the control of Russian backed rebels since April 2014, the propaganda has a hermetic, relentless feel to it.

Eighty-eight year-old Nadya Moroz stares through the taped-up window of her flat in Donetsk, blown in by persistent bombing. She wonders why she abandoned her peaceful village for a “better life” in Donetsk with her daughter, just months before war erupted in spring 2014.

Nadya is no stranger to upheaval. She was captured by the Nazis when she was 15 and sent to shovel coal in a mine in Alsace, in eastern France. When the region was liberated by the Americans, she narrowly missed a plane taking refugees to the US, and so returned empty-handed to Ukraine. She never thought that she would see fighting again.

Now she and her daughter Irina shuffle around their dilapidated flat in the front-line district of Tekstilshchik. Both physically impaired, they seldom venture out.

The highlight of the women’s day is the television series Posledniy Yanychar (“The Last Janissary”), about an Ottoman slave soldier and his dangerous love for a free Cossack girl.

They leave the dog-walking to Irina’s daughter, Galya, who comes back just in time. We turn on the TV a few minutes before two o’clock to watch a news report on Channel One, the Russian state broadcaster. It shows a montage of unnerving images: Nato tanks racing in formation across a plain, goose-stepping troops of Pravy Sektor (a right-wing Ukrainian militia) and several implicit warnings that a Western invasion is nigh. I wonder how my hosts can remain so impassive in the face of such blatant propaganda.

In Donetsk, which has been under the control of Russian-backed rebels since April 2014, the propaganda has a hermetic, relentless feel to it. If the TV doesn’t get you, the print media, radio and street hoardings will. Take a walk in the empty central district of the city and you have the creeping sense of being transported back to what it must have been like in the 1940s. Posters of Stalin, with his martial gaze and pomaded moustache, were taboo for decades even under the Soviets but now they grace the near-empty boulevards. Images of veterans of the 1941-45 war are ubiquitous, breast pockets ablaze with medals. Even the checkpoints bear the graffiti: “To Berlin!” It’s all inching closer to a theme-park re-enactment of the Soviet glory years, a weird meeting of propaganda and nostalgia.

So completely is the Donetsk People’s Republic (DPR) in thrall to Russia that even its parliament has passed over its new flag for the tricolour of the Russian Federation, which flutters atop the building. “At least now that the municipal departments have become ministries, everyone has been promoted,” says Galya, wryly. “We’ve got to have something to be pleased about.”

The war in the Donbas – the eastern region of Ukraine that includes Donetsk and Luhansk – can be traced to the street demonstrations of 2013-14. The former president Viktor Yanukovych, a close ally of Vladimir Putin, had refused to sign an agreement that would have heralded closer integration with the EU. In late 2013, protests against his corrupt rule began in Maidan Nezalezhnosti (“Independence Square”) in Kyiv, as well as other cities. In early 2014 Yanukovych’s security forces fired on the crowds in the capital, causing dozens of fatalities, before he fled.

Putin acted swiftly, annexing Crimea and engineering a series of “anti-Maidans” across the east and south of Ukraine, bussing in “volunteers” and thugs to help shore up resistance to the new authority in Kyiv. The Russian-backed rebels consolidated their power base in Donetsk and Luhansk, where they established two “independent” republics, the DPR and its co-statelet, the Luhansk People’s Republic (LPR). Kyiv moved to recover the lost territories, sparking a full-scale war that raged in late 2014 and early 2015.

Despite the so-called “peace” that arrived in autumn 2015 and the beguiling feeling that a certain normality has returned – the prams, the ice creams in the park, the bustling bars – missiles still fly and small-arms fire frequently breaks out. You can’t forget the conflict for long.

One reminder is the large number of dogs roaming the streets, set free when their owners left. Even those with homes have suffered. A Yorkshire terrier in the flat next door to mine started collecting food from its bowl when the war began and storing it in hiding places around the flat. Now, whenever the shelling starts, he goes to his caches and binge-eats in a sort of atavistic canine survival ritual.

Pet shops are another indicator of the state of a society. Master Zoo in the city centre has an overabundance of tropical fish tanks (too clunky to evacuate) and no dogs. In their absence, the kennels have been filled with life-size plastic hounds under a sign strictly forbidding photography, for reasons unknown. I had to share my rented room with a pet chinchilla called Shunya. These furry Andean rodents, fragile to transport but conveniently low-maintenance, had become increasingly fashionable before the war. The city must still be full of them.

The bombing generally began “after the weekends, before holidays, Ukraine’s national days and before major agreements”, Galya had said. A new round of peace talks was about to start, and I should have my emergency bag at the ready. I shuddered back up to the ninth floor of my pitch-dark Tekstilshchik tower block. Shunya was sitting quiet and unruffled in his cage, never betraying any signs of stress. Free from Russian television, we girded ourselves for the night ahead.

This article first appeared in the 05 February 2015 issue of the New Statesman, Putin's war