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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The failed French presidential candidates who refuse to endorse Emmanuel Macron

While the candidates of the main left and right parties have endorsed the centrist from nowhere, others have held back. 

And breathe.

At 8pm on Sunday night France, Europe, and much of the West let out a huge sigh of relief. After over a month of uncertainty, scandals, rebounds, debates and late surges, the results of the first round of the French Presidential Election was as predicted: Emmanuel Macron (24 per cent) will face off against Marine Le Pen (21 per cent) in the second round of the election on the 7 May.

While polls have been predicting this face-off for a while, the shocks of Brexit and the election of Donald Trump had thrown polling predictions into doubt. But France has a good track record when it comes to polling, and their surveys are considered some of the most reliable in the world. The irony is that this uncertainty has meant that the polls have never been so central to a campaign, and the role of polling in democracies has been a hot topic of debate during the election.

The biggest surprise in many ways was that there were no surprises. If there was a surprise, it was a good one: participation was higher than expected: close to 80 per cent – on par with the Presidential Elections of 2012 – whereas there were concerns it would be as low as 70 per cent. Higher participation is normally a bad sign for the extremes, who have highly motivated voters but a limited base, and who often do better in elections when participation is low. Instead, it boosts the traditional parties, but here instead of the traditional right-wing Republican (Fillon is at 20 per cent) or Socialist parties (Hamon at 6 per cent), it was in fact the centre, with Emmanuel Macron, who benefited.

So France has so far not succumbed to the populist wave that has been engulfing the West. The contagion seemed to be spreading when the Italian Prime Minister Matteo Renzi lost a referendum on reforming the constitution, but the fightback started in Austria which rejected the far-right candidate Norbert Hofer in its Presidential election and voted for the pro-European, former-Green independent candidate Alexander Van der Bellen. Those hopes now rest on the shoulders of Macron. After having dubbed Angela Merkel the leader of the free world during his farewell tour of Europe, Barack Obama gave his personal blessing to Macron last week.

Many wondered what impact Thursday night’s shooting on the Champs-Elysées would have. Would it be a boon for Marine Le Pen’s anti-immigration platform? Or even right-wing François Fillon’s more traditional law and order approach? In the end the effect seems to have been minimal.

In the second round, Macron is currently predicted to beat Marine Le Pen by more than 60 per cent of the vote. But how does Le Pen almost double her vote in the second round, from around 20 per cent to close to 40 per cent? The "Republican Front" that saw her father off back in 2002, when he received only 18 per cent of the vote, has so far held at the level of the two traditional political parties. Both Hamon and Fillon have called to vote for Macron in the second round to stop the Front National - Hamon put it nicely when he said he could tell the difference between political opponents, and opponents of the Republic.

But not everyone is toing the line. Sens Commun, the anti-gay marriage group that has supported Fillon through thick and thin, said that it will not call to vote for either party – a thinly veiled invitation to vote for Le Pen. And Nicolas Dupont-Aignan, a conservative, Catholic and anti-EU right wing candidate, whose 5 per cent is the reason Fillon didn’t make it to the second round, has also abstained from calling to vote for either. It is within this electorate that Le Pen will look to increase her vote.

The other candidate who didn’t call to vote for anyone was Jean-Luc Mélenchon, who fell back on a demagogic position of saying he would follow the wishes of his supporters after having consulted them. But as a spokesperson for the FN pointed out, there are remarkable congruities between their respective platforms, which can be categorised as a populism of the left and a populism of the right.

They in particular converge over the question of Europe. Aping Brexit, both want to go to Brussels to argue for reform, and if none is forthcoming put membership of the Eurozone to the electorate. While Le Pen’s anti-Europeanism is patent, Mélenchon’s position is both disingenuous and dangerous. His Plan A, as he puts it, is to attempt reform at the European level. But he knows fine well that his demands, which include revoking the independence of the European Central Bank and putting an end to austerity (the ECB, through its massive programme of quantitative easing, has already been trying to stimulate growth) will not be met. So he reverts to his Plan B, which is to leave the European Treatises and refound Europe on a new basis with like-minded members.

Who those members might be he hasn’t specified, nor has he explained how he would leave the EU - at least Le Pen had the decency to say she would put it to a referendum. Leaving the European Treatise has been in his programme from the beginning, and seems to be the real object of his desires. Nonetheless, having set himself up as the anti-Le Pen candidate, most of his supporters will vote for Macron. Others will abstain, and abstention will only help Le Pen. We’ve been here before, and the last thing we need now is complacency.

 

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