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Lethal Injustice on America's Death Row
General Assembly 2005 Event 3028
Seventeen years ago, when David Dow was first asked to defend a death row inmate, he was a supporter of the death penalty. Capital punishment was an abstraction to him, and he imagined that death row was populated by monsters such as Hannibal Lector and Charles Manson. After all, the United States Supreme Court had struck down the death penalty in 1972 as being "too arbitrary," and the states, when they began to reinstate it in 1976, had very carefully crafted laws that would apply capital punishment to only the "worst of the worst."
Dow was a professor of law at the University of Houston, teaching a course on federal habeas corpus law. Because most of the importanthabeas corpus decisions were coming down in death penalty law at that time, he decided he ought to learn more about that field. He made his first visit to death row, at the Texas state penitentiary in Huntsville, in 1989. During that visit, Dow learned that one of the inmates, Carl Johnson, had an execution date set in just two weeks and that his attorney had resigned, effective that day. Dow took the case.
Since that time, Dow has learned four important things about the death penalty in America. The first is that those sentenced to death are not monsters. Of course, Hannibal Lector is a fictional character and Charles Manson has never been on death row. But Dow has learned that the real inmates on death row, who may have committed truly horrible crimes, are otherwise ordinary human beings, capable of meaningful relationships with their family members and others and, if guilty, deeply remorseful for the irreparable harm they have caused.
Second, Dow found that the respect for law which all of us believe is central to the system of criminal justice, and which ought to be paramount in capital cases, is flouted. In fact, police and prosecutors cheat to obtain convictions. Confessions are coerced, bizarrely incompetent lawyers are appointed, backward judges preside and juries are basically racist.
To compound the errors introduced by the broken trial system, nobody cares. That is, judges don't care. There is an inmate on death row in Texas, Charles Dean Hood, who is scheduled to be executed this Thursday, June 30. During his trial, the judge and the prosecutor were involved in a sexual relationship. There is no doubt of the affair, but it is unlikely that that fact, which has never been heard in court, will be recognized as a basis for a stay of execution.
The fourth important thing that Dow has learned is that federal law has been recrafted, from 1976 through 1995, to defeat appeals. Prior to that time, appeals prevailed 60 percent of the time. Since then, only about 11 percent of appeals prevail. The question is, did cheating at the trial level somehow decline five-fold over that 20 year period? Or did the cheating continue but the appeals fail to prevail?
David Dow's learning curve, which has brought him to oppose the death penalty and found the Texas Innocence Project, is compellingly told in his new book, Executed on a Technicality: Lethal Injustice on America's Death Row, published by Beacon Press.
David Dow is a professor of law at the University of Houston, an active attorney who has defended more than fifty death row inmates, and the founder of the Texas Innocence Project.