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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How the Saudis are making it almost impossible to report on their war in Yemen

The conflict is not getting anything like the media attention it deserves.

This article has been co-authored by Ahmed Baider, a fixer based in Yemen's capital Sana’a, and Lizzie Porter, a freelance journalist based in Beirut who is still waiting for a chance to report from Yemen.

Ten thousand people have died. The world’s largest cholera epidemic is raging, with more than 530,000 suspected cases and 2,000 related deaths. Millions more people are starving. Yet the lack of press attention on Yemen’s conflict has led it to be described as the “forgotten war”.

The scant media coverage is not without reason, or wholly because the general public is too cold-hearted to care. It is very hard to get into Yemen. The risks for the few foreign journalists who gain access are significant. And the Saudi-led coalition waging war in the country is doing its best to make it difficult, if not impossible, to report from the area.

Working in Sana’a as a fixer for journalists since the start of the uprisings of the so-called Arab Spring in 2011 has sometimes felt like the most difficult job in the world. When a Saudi-led coalition started bombing Yemen in support of its president, Abdrabbuh Mansour Hadi, in March 2015, it became even harder.

With control of the airspace, last summer they closed Sana’a airport. The capital had been the main route into Yemen. Whether deliberately or coincidentally, in doing so, the coalition prevented press access.

The media blackout came to the fore last month, when the Saudi-led coalition turned away an extraordinary, non-commercial UN flight with three BBC journalists on board. The team – including experienced correspondent Orla Guerin – had all the necessary paperwork. Aviation sources told Reuters that the journalists’ presence was the reason the flight was not allowed to land.

The refusal to allow the press to enter Yemen by air forced them to find an alternative route into the country – a 13-hour sea crossing.

After the airport closure in August 2016, an immensely complex set of procedures was created for journalists travelling on the UN flights operating from Djibouti on the Horn of Africa into Sana’a. The level of paperwork required offered only a glimmer of hope that the media would be allowed to highlight the suffering in Yemen. Each journalist’s application required visas, permits, return ticket fees of $1,100 per person (later reduced to $250) and a great deal of bureaucracy.

But there were other issues, too: equipment that all journalists take with them to war zones as standard – flak jackets, helmets and satellite phones – were not allowed on the UN flights, increasing fears about operating in the country.

The new arrangement significantly increased the cost and time involved – two things that most media organisations are short of. A team of two would have to budget for several thousand dollars for a week-long reporting trip. This was limiting for even large media organisations with big budgets.

Still, the system worked. A few journalists started to come and cover the situation from the ground. Yemenis were happy to share their stories. On one assignment to villages on the west coast, people ran to talk to us and show us their malnourished children as soon as we arrived. It was obvious from the look in their eyes that they wanted to tell people what had been happening.

That changed after last October, when three or four large international media teams had reported from Yemen, broadcasting images of starving children and bombed-out homes to TVs around the world. The Saudi-led coalition began refusing to let journalists fly in with the UN. They said that the flights were for humanitarian workers only, or that the safety of journalists could not be guaranteed. Members of the press who had been preparing trips suddenly had their plans quashed. Time assigned to reporting the conflict had to be given to more accessible stories.

Over the next few months, media access was again opened up, only to be followed by U-turns and further paralysis. And when the Saudi-led coalition did grant access, it was only under certain, excruciating conditions.

As well as a press visa granted by the opposition authorities in the capital, from February this year, journalists have required a second visa granted by the Saudi-backed government in Aden.

It felt impossible. Why would they give press visas for journalists to visit opposition territory? The doubts were proved correct when trying to convince Hadi government officials to issue press access. The consular envoy in Cairo refused. A call to their team in London resulted in another “no”. 

This meant applying to the authorities in Aden for secondary visas for the tenacious journalists who hadn’t already been put off by the cost and access hurdles. One example of the petty requirements imposed was that a journalist’s visa could not be on paper: it had to be stamped into his or her passport. Of course, that added a week to the whole affair.

After months of media blockade, journalists were finally able to access Yemen again between March and May this year. At present, members of the media are officially allowed to travel on the UN flights. But how many more times journalists will be refused entry remains unknown. Not all crews will have the resources to make alternative arrangements to enter Yemen.

The New Statesman interviewed one French documentary producer who has reported from Yemen twice but who has not been able to access the country since 2015, despite multiple attempts.

Upon each refusal, the Saudi-led coalition told the journalist, “to take commercial flights – which didn’t exist…” he explained, requesting anonymity. “Saudi Arabia and its coalition are doing everything they can to discourage journalists as well as organisations like Human Rights Watch and Amnesty International.”

He said that blocking media access was part of the Saudi-led coalition’s strategy to “bring [Yemen] to its knees in an atmosphere of silence and indifference.”

Access is not the only problem. Reporting in Yemen carries great risks. The British Foreign Office warns of a “very high threat of kidnap and unlawful detention from militia groups, armed tribes, criminals and terrorists”. It specifically mentions journalists as a group that could be targeted.

Editors are increasingly nervous about sending journalists into war zones where kidnap is a significant danger. The editorial green light for arranging assignments to Yemen is – understandably – ever harder to obtain.

Although they are willing to work with recognised press teams, the Houthis and Saleh loyalists have also been known to be suspicious of journalists.

“Even before the Saudis banned access to Yemen, it is important to remember that Yemen is one of the most difficult countries for journalists to access,” added the anonymous journalist.

The amount of press attention dedicated to Yemen simply does not reflect the extent of country’s suffering and political turmoil. Journalists’ rights groups, international organisations and governments need to step up pressure on Saudi Arabia to ease media access to the country.

The coalition last month proposed that the UN take control of Sana’a airport, which it refused. Whoever runs it, the hub must be opened, so that journalists can get in, and Yemenis desperately needing medical treatment abroad can get out.

Failing this, coupled with the extreme risks and costs of reporting, the world will never see the graves of 10,000 people. Yemenis will continue to die starving and invisible, in destroyed homes.