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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Clinton and Trump: do presidential debates really matter?

The ability of the candiates to perform in front of the cameras is unlikely to impact the final result.

The upcoming televised presidential debates between Hillary Clinton and Donald Trump are undoubtedly the most eagerly anticipated for many years. No doubt there are various surprises in store – this has been, after all, the most surprising of campaigns.

People will be particularly fascinated to see if Trump dials down his bombastic rhetoric and perhaps even adds some substance to the vague policy pronouncements he has made so far. To a lesser extent, many will also be interested in whether Clinton can add the necessary zest to what some consider her lacklustre style, and whether she can prove she’s made a sterling recovery from her recent bout with pneumonia.

It’s possible that some voters may in fact change their minds based on what they see in the two’s only on-camera encounters. And yet, barring a true disaster or devastating triumph, it’s unlikely that anything the candidates say or do will make much difference to the overall result.

This might not seem all that surprising for these two candidates in particular. Leaving aside how long they’ve both been in public life, social media and the 24-hour news cycle have put Clinton and Trump under incredible scrutiny ever since they announced their respective candidacies – and their every sentence and gesture has already been analysed in the greatest detail.

Trump in particular has received more free publicity from the networks and Twitter than even he could afford, and it’s highly unlikely that he will say anything that the US public hasn’t heard before. Similarly, voters’ impressions of Clinton are apparently so deeply entrenched that she probably won’t change many people’s minds.

Yet there are also broader reasons why presidential TV debates are less important than we might imagine.

Looking the part

Even before the media environment became as saturated as it is today, debates were rarely, if ever, decisive in presidential elections. The exception was possibly the very first TV debate in 1960, which pitted the then vice-president, Richard Nixon, against John F. Kennedy.

At the time, the election was so close that the young, relatively inexperienced but highly telegenic Kennedy was able to reap the benefits of putting his case directly to viewers. He was the underdog; a relative unknown in comparison to Nixon and so had more to gain from such national exposure. Nixon, as the establishment figure, had a lot to lose.

In the end, Kennedy’s narrow victory may well have been because of his debate performances. But his success also demonstrated another important feature of television debates: that viewers take more notice of what they see than what they hear.

Notoriously, television viewers responded very favourably to Kennedy’s film-star good looks, but were turned off by Nixon, who refused to wear make-up and looked sweaty and uncomfortable under the studio lights. In contrast, those who listened on the radio believed that Nixon had come out on top. It seems that viewers saw Kennedy as more “presidential” than Nixon, especially given his calmness under pressure. Kennedy did work hard to exploit some of Nixon’s weaknesses on policy, but in the end, that turned out not to be the point.

Kennedy’s success was one of the reasons that neither of his two successors, Lyndon B. Johnson and then a resurgent Nixon, participated in any such events when they were running for the presidency. Although some debates were held in the primaries, there were no face-to-face contests between presidential candidates in 1964, 1968 or 1972.

The next debates were held in 1976, another tight campaign. These yielded a notorious moment in the second encounter between Gerald R Ford and Jimmy Carter, when the incumbent Ford appeared to throw the election away with a poorly judged remark declaring that there was no Soviet domination of Eastern Europe. As myth has it, this gaffe stalled Ford’s polling surge; he ultimately lost the election.

Yet even this was not decisive. Although the comment did the president no favours, it’s highly debatable whether it in fact had an impact on the overall result; Ford actually closed the polling gap with Carter between the debates and the general election. People’s reactions to the debate had less to do with the substance of his remark and much more with the media’s constant replay and analysis of that moment, which continues to mar Ford’s reputation to this day.

Selective memory

This pattern has continued in the election cycles that have followed, as slips and awkward moments rather than substance provide the media with dominant themes. Many people recall vice-presidential candidate Dan Quayle’s cack-handed attempt to compare himself to Kennedy in 1988, or George Bush senior’s ill-judged glance at his watch when listening to a question in 1992; few probably remember much about what policies they discussed, or whether, if they won, they carried them out.

If anything, the shortcomings of the TV debate format have become more pronounced in the current cycle. Although neither of the main candidates in this year’s election wants for national exposure, the primary debates have tended to favour the underdog and those who claim to be outsiders.

On the Republican side, Trump’s various moderate competitors were one by one hobbled and engulfed; Clinton, for her part, spent months slugging it out with her remarkably successful left-wing rival Bernie Sanders, never quite landing a televised knockout punch and ultimately only defeating him properly after six months of primaries.

While credible policy proposals seem to matter less than ever, things that would have once been considered catastrophic gaffes have become par for the course. Indeed, one could argue that Trump’s success so far is because he has built his campaign on half-truths and outright lies without care for the consequences.

So despite all the anticipation, this year’s debates probably won’t tell us very much about what will happen after the president takes office next January; the analysis will almost certainly focus less on what the candidates have to say and more on how they say it. Voters will no doubt tune in in great, possibly record-breaking numbers, but they’ll come away with precious little sense of what’s in store for their country.

Equally, the spectacles we’re about to witness might be pyrotechnic enough, but they’re unlikely to decide the result in November. And in the unlikely event that they do, it won’t be for the right reasons.

Andrew Priest is a lecturer in Modern US History at the University of Essex

This article was originally published on The Conversation. Read the original article.