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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Millennial Man: How Emmanuel Macron is charming France's globalised youth

At the French presidential candidate's London rally, supporters cheered for a reformist. 

If it weren’t for the flags – the blue, white and red of France, but also the European Union’s starred circle – the audience’s colourful signs and loud cheers could have been confused with those of a rock star’s concert. There even were VIP bracelets and queues outside Westminster Central Hall, of fans who waited hours but didn’t make it in. This wasn't a Beyonce concert, but a rally for France’s shiny political maverick, the centrist presidential candidate Emmanuel Macron. He arrived on stage under a thunder of applause, which lasted the full minute he took to salute the first rank.

Since he resigned from his position as François Hollande’s economy minister last August, the 39-year-old relative political newbie – he used to be a banker and only joined the French government in 2014 – has created his own movement, En Marche, and has been sailing in the polls. In this he has been helped by the fall from grace of Conservative candidate François Fillon. Macron, who can count on the support of several Socialists, the centrist François Bayrou and the unofficial backing of the Elysee palace, is seen as the favourite to face hard-right Marine Le Pen in the election’s run-off in May.

A screen displayed photos of supporters from around the world (Singapore, Morocco, United States, “We’re everywhere”) as well as the hashtags and Snapchat account for the event. Rihanna’s “Diamonds” played as a team of young “helpers”, en anglais dans le texte, were guiding the 3,000 French expatriates to their seats. “We’re about 90 helpers tonight,” said Pierre-Elie De Rohan, 23. A History student at University College London, he joined the youth branch of En Marche via a school group.

The movement has been very active among students: “We’re in all London universities, King’s, Imperial, UCL”, he said. “It’s exciting”, echoed fellow helped Arcady Dmitrieff, 18, from UCL too. “We feel like we’re taking part in something bigger than us.”

Hopeful millennials are flowing to En Marche en masse. Macron is young, attractive, and though, like most French politicians, he is a graduate of the elite École Nationale d'Administration school, voters still see in him a breath of fresh air. “He’s neither left-wing nor right-wing," praised helper 18-year-old Victoria Tran. Her friend Adele Francey, 18, agreed. “He transcends the political divides that have confined us for the past thirty years," she said. “And he looks sincere," added Lena Katz, 18. “He really believes he can make a change.” The Macron brand, a mix of smart marketing, cult figure (the first letters of En Marche are Macron’s initials) and genuine enthusiasm previously unseen on the French campaign trail, has given him momentum in a political system highly based on the leader’s personality.

For Katz, Tran and many of their friends, France’s 2017 presidential race is their first election. “I want to be invested and to vote for someone I like," Tran said. “More than the others, Macron represents our generation.” Their close elders are hoping for a political renaissance, too – perhaps the one that was supposed to come with François Hollande in 2012. “I really believe he can make it," said Aurelie Diedhou, 29, a wholesale manager who has lived in London for two years. “On many topics, he’s more advanced than his rivals, a bit like Barack Obama in 2008. In France, when a politician has the pretention not to be corrupt, or to have held a job before entering politics, they’re accused of marketing themselves. But it’s just true.”

Macron occupied the stage for a good hour and a half – during which his supporters never failed to cheer, even for boring declarations such as “I want more management autonomy”. He passionately defended the European Union, and pleaded for its reform: “I am European, and I want to change Europe with you.”

Such words were welcomed by French expatriates, many of whom have feared that their life in the UK may be turned upside down by the consequences of the Brexit vote. “Britain has made a choice, which I think is a bad choice, because the middle classes have lacked perspectives, and have had doubts," Macron said. He promised to stand for the rights of the French people who “have made their life choice to settle in Britain”.

As far as Macron's UK co-ordinator, Ygal El-Harra, 40, was concerned, that the candidate would make a trip across the Channel was self evident: “We’ve got people in Bristol, Cambridge, Edinburgh, in Cornwall. And they’re not just bankers and traders: some work in delivery, restaurants, many are students... They perfectly represent French society, and we want to keep in touch with them.”

In 2012, London’s French community opted for Nicolas Sarkozy over Hollande, but the vote was very close (48 per cent to 52 per cent). Just as within France, where he appeals to both left and right-wingers, Macron’s internationally-minded liberalism, coupled with his fluent, fairly well-accented English, could win big among the expat. And they matter - there are about 100,000 votes to grab. “For us who are in London, it’s important to have an open-minded, international candidate," the teenager Tran said.

Rosa Mancer, a 45-year-old strategist who has lived in London for 20 years, agreed. “I loved what he said about Europe. We must reform it from the inside," she said. But she admitted her support for Macron was “a choice by elimination”, due to the threat of the far-right Front National and the corruption case surrounding Fillon. “He’s got no scandal behind him," she said. Unlike their younger peers, voters with more experience in French politics tended to choose the dynamic Macron because he was the least compromised of the lot. “It’s certainly not Marine Le Pen, nor Benoît Hamon, the sectarist Fillon or the Stalinist Jean-Luc Mélenchon, who will rebuild our fossilised France”, said Roland Stern, a Frenchman in his sixties. “In 1974, Giscard D’Estaing didn’t have a party, either. But once he had won, the others followed him.”

British politicians had come to see the French phenomenon, too. Labour’s Denis MacShane and former Deputy Prime Minister Nick Clegg sat among the VIPs. For the latter, the enthusiasm around a promising and brilliant politician rang a bell. Looking back on the 2010 general election, the former Liberal Democrat leader reflected: “Although my platform was very different at the time, the basis was that the status quo was letting people down and that we needed something different.” Clegg’s advice to Macron? “Make sure you seek to set and manage people’s expectations.”

As Clegg knows too well, there is a danger in bringing everyone together, and that is keeping everyone together without disappointing them all. If his name comes first on the evening of May 7, Macron’s real challenge will begin: forming a government with his supports for a broad political spectrum, and dropping vague pledges and marketing slogans to map out a clear way ahead.

In Westminster, hundreds of supporters were literally behind him, seated in tiers on stage. A massive screen showed a live close-up of Macron's youthful face. Something in his picture-perfect smile seemed to wonder what would happen if the crowd stopped cheering.