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
Police in Tahrir Square. Image: Getty.
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The murder of my friend Giulio Regeni is an attack on academic freedom

We are grieving – but above all, we are furious about the manner of his death.

The body of Giulio Regeni was discovered in a ditch in Cairo on February 2, showing evidence of torture, and a slow and horrific death. Giulio was studying for a PhD at the University of Cambridge, and was carrying out research on the formation of independent trade unions in post-Mubarak Egypt. There is little doubt that his work would have been extremely important in his field, and he had a career ahead of him as an important scholar of the region.

Giulio, originally from Fiumicello in north-east Italy, had a strong international background and outlook. As a teenager, he won a scholarship that allowed him to spend two formative years studying at the United World College in New Mexico. He was especially passionate about Egypt. Before beginning his doctoral research, he spent time in Cairo working for the United Nations Industrial Development Organisation (UNIDO). At the age of 28, he stood out with his big hopes and dreams, and he was committed to pursuing a career that would allow him to make an impact on the world, which is a poorer place for his passing.

Those of us who worked and spent time with him are grieving – but above all, we are furious about the manner of his death. While murder and torture are inherently of concern, Giulio’s case also has much broader implications for higher education in the UK and beyond.

Giuli Regeni. Image: provided by the author.

British universities have long fostered an outward-looking and international perspective. This has been evident in the consistent strength of area studies since the middle of the 20th century. The fact that academics from British universities have produced cutting-edge research on so many areas of the world is an important factor in the impact and esteem that the higher education system there enjoys.

In order to carry out this research, generations of scholars have carried out fieldwork in other countries, often with authoritarian political systems or social unrest that made them dangerous places in which to study. I carried out such research in Peru in the 1990s, working there while the country was ruled by the authoritarian government of Alberto Fujimori.

Alongside this research tradition, universities are becoming increasingly international in their outlook and make up. Large numbers of international students attend the classes, and their presence is crucial for making campuses more vibrant and diverse.

Giulio’s murder is a clear and direct challenge to this culture, and it demands a response. If our scholars – especially our social scientists – are to continue producing research with an international perspective, they will need to carry out international fieldwork. By its nature, this will sometimes involve work on challenging issues in volatile and unstable countries.

Universities clearly have a duty of care to their students and staff. This is generally exercised through ethics committees, whose work means that much greater care is taken than in the past to ensure that risks are managed appropriately. However, there is the danger that overly zealous risk management could affect researchers’ ability to carry out their work, making some important and high-impact research simply impossible.

Time for action

We cannot protect against all risks, but no scholar should face the risk of extrajudicial violence from the authorities. If universities are to remain internationally focused and outward-looking, we must exercise our duty of care towards our students and colleagues when they are working in other countries.

But there are limits to what academic institutions can do on their own. It is vital that governments raise cases such as Giulio’s, and push strongly for full investigations and for those responsible to be held to account.

The Italian and Egyptian authorities have announced a joint investigation into what happened to Giulio, but the British government also has a responsibility to make representations to this effect. That would send the message that any abuse by authorities of students and researchers from British universities will not be tolerated.

A petition will be circulated to this effect, and Giulio’s friends and colleagues will be campaigning on the issue in the days and weeks ahead.

Giulio Regeni’s murder is a direct challenge to the academic freedom that is a pillar of our higher education system. He is only one of many scholars who have been arbitrarily detained, and often abused, in Egypt. As a scholarly community and as a society, we have a duty to strike to protect them and their colleagues who study in dangerous places the world over.

 

Neil Pyper is an Associate Head of School at Coventry University

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