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
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Battle for Mosul: will this be the end of Islamic State?

The militant group's grip on power is slipping but it has proved resilient in the past.

The battle for Mosul is the latest stage in the long struggle to defeat Islamic State. The group has been around since the late 1990s in one form or another, constantly mutating in response to its environment. Undoubtedly its ejection from Mosul will be a significant moment in the group’s history, but it is unlikely to be its final chapter. The destruction of the group will only be complete when some fundamental changes occur within Iraq and the war in Syria comes to an end.

IS’s roots go back to a training camp established by the militant Islamist Abu Musab al Zarqawi in the late 1990s in Herat, Afghanistan. Founded as an army to overthrow the apostate regimes of the Levant, it fled to northern Iraq in the wake of the US-led invasion of Afghanistan post-9/11 where it re-established itself as a force alongside Ansar al Shariah, a hardline Salafi jihadi organisation.

As American attention shifted from Afghanistan to Iraq, the group was ideally placed to become one of the leading lights in the post-Saddam Iraqi insurgency. Brutally announcing itself to the world in August 2003 with successive attacks on the Jordanian Embassy in Baghdad, the UN headquarters and a Shia shrine in Najaf — the latter being the deadliest attack in Iraq that year with a death toll of 95 — the group grew to assume the mantle of al-Qaeda in Iraq. By 2006 this brand had become somewhat damaged through the brutal sectarian campaign the group waged, and when its founder, Zarqawi, died it sought to reinvent itself as the Mujahedeen Shura Council. This incarnation did not last long either, and eventually it assumed the title of the Islamic State of Iraq (ISI), alongside a more Iraqi leadership.

This was the start of a diffcult period in the group's history. Its excesses in Iraq (including indiscriminate slaughter of Shia Muslims to stir sectarian hatred and filmed decapitations of prisoners) lost it local support and led to the tribes in Sunni Iraq rising up and supporting the government in Baghdad's fight back against the group. By 2009, when the west abruptly stopped paying attention and withdrew from Iraq the group was largely perceived as in decline, with the Shia Muslim-led Iraqi government appearing to slowly assert itself more effectively across the country.

The terrorist attacks by the group continued. And the new government started to advance an increasingly sectarian agenda. These two played off each other in a downward spiral that was given a fresh boost of blood when the civil war in Syria erupted in 2011. Drawing on its existing networks (that were leftovers from when Syria was used as a staging point by the organisation to launch attacks into Iraq), the leadership sent a cell to Syria to explore what opportunities existed within the emerging fight there. This cell became the seed that grew into Jabhat al Nusrah and ultimately IS – a label the group adopted when in June 2013 IS leader Abu Bakr al-Baghdadi decided it was time to reveal this link between his Iraqi group and Jabhat al Nusrah. This led to divisions and the breaking up of the two organisations.

For IS, however, it was the beginning of an upward trajectory, building on this division to grow itself substantially in Syria (with Raqqa as its capital) and in 2014 taking over Iraq’s second biggest city of Mosul. We then reach the apex of IS’s success and the biggest expansion of the group yet.

It now seems that this growth had a shelf life of just two-and-a-half years. As the group appears to be losing Mosul, it is likely that we will see the beginning of a period of retraction. But this will not be its end – rather, it will flee back to the hills and the ungoverned spaces in Iraq and Syria from where it will continue a persistent terrorist strategy in both countries. Here it will bide its time until the moment presents itself to rise up. Waiting until the governance in Iraq and Syria fails its people again, the group can paint itself as the protector of Sunnis and once more build on that group's disenfranchisement to win supporters and occupy a space vacated by local governments.

IS's grip on power might currently be slipping but as history has shown, it has waxed and waned depending on the context it is operating in. We are now going to see a period of withdrawal, but unless attention is paid by the global community, it will expand again in the future.

Raffaello Pantucci is Director of International Security Studies at the Royal United Services Institute (RUSI). Visit his website at http://www.raffaellopantucci.com