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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"We are not going to change": Barcelona defies terror with a return to normality

After a attack which killed 14 and injured scores more, shock gives way to defiance and unity.

A perfect summer afternoon in Barcelona suddenly turned into a nightmare on Thursday evening, a nightmare that has become far too common in Europe in recent years. 

“I was having a coffee here [in Plaça Catalunya] and was about to go and walk down there like everyday, because I live just off the Ramblas”, says 26-year-old Eneko de Marcos, pointing down the promenade. “I stayed because I was waiting for a friend, and when she came we heard a big noise and then everyone was running."

Thousands of people, most of them tourists, had been ambling casually along the Ramblas, the most iconic of Barcelona boulevards, which descends from Plaça Catalunya to the old port and the sea, when a white van had mounted the pedestrianised centre of the walk and began driving into people. 

Even after the van came to a stop, leaving a trail of dead and injured in its wake, De Marcos and hundreds of others were trapped for hours inside bars, shops and hotels while the police cordoned off the area and investigated the scene.

Seeing the Ramblas and the surrounding areas completely empty of people following the attack is, for anyone used to the area, unreal and the first reaction for most has been shock. Barcelona had felt safe both to locals and tourists, which had been coming to the city in increasing numbers since last year, many perhaps trying to avoid other destinations in Europe seen as more at risk of attack. 

Shock gave way to confusion and fear during the evening. The van driver was still at large and a series of ugly images, videos and unconfirmed rumours about other attacks spread across social media and the news. The number of victims increased steadily to 13 dead and more than 80 injured of many different nationalities.

At 11pm the city centre and its surroundings were eerily quiet and dark. Few people were venturing on to the streets, and the bar terraces which would normally be packed with people enjoying the late dinners Spaniards are famous for were half empty.

The next morning Barcelona woke up to the news that after 1am that night the Police had stopped a second attack in the touristic beach town of Cambrils, an hour and a half away to the south. What was going on? The streets of Barcelona were still quiet, far too quiet in a city usually noisy and crowded, and again the terraces, so symptomatic of the Barcelona’s mood, were unusually empty.

“I always said something like this would never happen in Barcelona”, says Joaquín Alegre, 76, walking through Plaça de Catalunya the morning after with his friend, Juan Pastor, 74, who nods and agrees: “I always felt safe.”

But slowly fear had given way to defiance. “Afraid? No, no, no”, insists Joaquín. “We’re going to carry on like normal, respecting the victims and condemning the attack, but we are not going to change”, says Juan.

Little by little the Ramblas and the whole area started to fill up during the day. People came from all directions, all kinds of people, speaking all kinds of language. The day was beautiful, the sky was blue, there are no clouds in sight and it got hotter by the minute. It began to look like Barcelona again.

“It’s important not to show fear, that’s what (the terrorists) want”, says Emily, an 18-year-old from Dresden, in Germany, who landed yesterday at Barcelona airport with her mother a few minutes after the attack. She says people were checking their phones while still on the plane and then one girl said aloud there’d been a terrorist attack in Barcelona. “It’s important to come here (to Plaça Catalunya) at this time”, says her mother, Anna, 42, both of them sitting on a low wall at the square.

Next to them, where the Ramblas begins, people once again filled the boulevard full of shops and hotels, which many locals also see as a symbol of how tourism has gone wrong in Barcelona. But Catalans, Spaniards from elsewhere and foreigners mingled happily, feeling united against a common enemy. Many left flowers and lit candles at the feet of a big ornamental lamppost on top of the Ramblas, many others did the same next to the famous Canaletes fountain a little down the promenade. 

“We the people have to respond to this by getting out and taking the streets”, says Albert Roca, a 54 year old publicist, who’s decided to come against the wishes of his girlfriend, who told him he was crazy. “I took a picture of the Ramblas and sent it to her and wrote, ‘Look how many crazy people there are’.”

Just before noon the Mayor of Barcelona Ada Colau visited the Plaça Catalunya with her retinue. She is a very popular figure who comes from civil society in a country where many citizens don’t feel properly represented by traditional politicians. Many people followed her carrying roses, a symbol of Barcelona, while they made their way into the square.

Shortly after, around 100,000 people packed Plaça Catalunya and its adjacent streets for a minute of silence begins for the victims. Only the flapping of pigeon’s wings overhead can be heard. And then an applause and a loud chant break the silence: “I am not afraid! I am not afraid!”, sang the people in Catalan.

Along with Colau in the centre of the square there was Carles Puigdemont, the head of the Catalan regional government and leader of the independence movement that has called for a referendum on 1 October, and along side them, King Felipe as the head of State, and Mariano Rajoy, the Prime Minister of Spain and a bitter political rival of Puigdemont. Seeing them standing together presents an image that until yesterday afternoon would’ve seemed impossible.

Very slowly people start emptying the square, where many still remain singing defiantly. “The attacks yesterday were a disgrace”, says a doorman just outside the city centre as Barcelona began returning to normality, “but we are going to carry on, what else can we do?”