For Two Decades, Defending Death Row Inmates
DAVE DAVIES, host:
This is FRESH AIR. I'm Dave Davies, sitting in for Terry Gross.
In the last 20 years, our guest, David Dow, has represented more than 100 death row inmates. Most of his clients were guilty, and he knew it. Some had committed monstrous crimes, and he's won only a few cases.
We're going to hear about why, in spite of all that, he continues to represent men on death row and what the impact of his work has been on his life and on his family.
David Dow is the litigation director of the Texas Defender Service, a nonprofit, legal-aid corporation that represents death row inmates. And he's the Cullen Professor at the University of Houston Law Center. Terry Gross interviewed David Dow last year, after the publication of his memoir, "The Autobiography of an Execution." It's now out in paperback.
TERRY GROSS, host:
David Dow, welcome to FRESH AIR. Your book is a memoir, and one of the things that you write about is the difficulty of making the transition back and forth between working on death row and coming home and trying to be in the world inhabited by your young son and having your son say things to you like: Hi, dad, did you have a good day on death row? Tell us a little bit about what those problems are going back and forth between death row and your son.
Mr. DAVID DOW (Author, "The Autobiography of an Execution"; Litigation Director, Texas Defender Service): Yes, it's a very difficult transition. I think that it's still a difficult transition for me, even though I've been doing it now for nine years, which is how old our son is.
I spend a lot of time at death row, which is located in Livingston, Texas, and the visits range from okay to terrible. I don't think that I've ever really had a visit on death row that I would call good. Maybe there's been one or two where I'm reporting to an inmate that we've won and that I don't think that there's any chance that that victory is going to be taken away from us. I suppose you could call that a good visit, except that it's still a case where there has been a murder in the background, and I've spent all day at death row.
And then I come home, and I see my son, and he's been at school. He's now in third grade. But in the stories that I'm telling in the book, a lot of the times he was in kindergarten or first grade, and it's just a very difficult transition. He wants to talk to me about that he did well on the spelling test or that he got all of the state capitals right, and then he says, you know, how was your day? And it's just a difficult conversation to have.
I think that I've gotten better at those transitions and conversations over the years. But I would say that for a while, they were difficult for me.
GROSS: What do you tell him about your work?
Mr. DOW: Well, from the time that he was old enough to ask me what I do, I would tell him honestly. Now, we obviously haven't told him about the details of what the people I represent have done. He knows that I represent people who have done bad things. He knows that I represent people who have killed somebody, and he knows that I represent people that the state wants to punish by executing them.
As I say, he doesn't know the details of the murders. He doesn't know details of how executions are carried out. But from the time that he's been old enough to ask what I do and why I do it, I've told him honestly. I haven't really felt that there was any way that I could think of to hide that from him in a way that wasn't misleading or dishonest.
GROSS: You write that murder is perhaps the ugliest crime, and that's why it's so shocking to you that murderers, most murderers are so ordinary in appearance. Did you start this work expecting to meet monsters and end up meeting people instead?
Mr. DOW: That's exactly what happened. I think that the first time that I went to death row, I expected it to be full of Hannibal-Lector-like characters, people who gave you the creeps just to be sitting in front of them. And, in fact, exactly the opposite happened.
When I first started representing death row inmates, most of the people who I was representing were probably a few years older than I was. And now, of course, I've been doing it 20 years, and most of them are younger than I am. But I had a client, for example, who was executed last November, November of 2009, and I remember the first time I went to see him, being struck by how completely ordinary he looked.
The first thing I thought when I was talking to him was that I simply could not picture this kid. He was 30 years old, but he still looked like a kid to me. I simply could not picture this kid doing what he had done. And I think that one of the really striking things about meeting people on death row and talking to people on death row is that, almost without exception, they don't look like what you expect them to look like.
There are a few, obviously, who have ticks and mannerisms, and you can tell that they're not normal in the sense that they have some apparent mental illness, but almost all of them aren't like that. Almost all of them look like people who you might have sat next to at the bar, where you were watching the ball game the night before.
GROSS: The people who you defend aren't monsters, but some of them have committed, most of them have committed crimes that are monstrous. Can you give us an example of somebody who you defended who you were pretty sure was, in fact, guilty and who committed an especially monstrous crime?
Mr. DOW: Yes. I had another client who was executed in March of last year. His name was Willie Pondexter. And Pondexter had grown up in this vast, sprawling, broken family. One of the things that the lawyers in my office do is we try to construct family trees of all of our clients, and it's not just for curiosity that we do that, but one of the things that we're looking for when we do that are signs of mental illness because mental illness tends to run in families.
And the only way you can know whether mental illness is running in a family is to construct a family tree. And so, we routinely construct family trees.
The family tree that we tried to construct for Pondexter looked like a Jackson Pollock painting. I mean, it had so many triangles and squares and circles veering off into all kinds of different directions that it was impossible to follow.
And that was the environment where he grew up. He grew up in an environment where he had no father. His brother, the only full brother that he had that he was close to, committed suicide when Pondexter was 10 years old. His mother was placed in mental hospitals four, five or six different times, and he ended up finding a family, which was a gang.
And as a result of that membership in a gang, he participated in a crime that included the murder of an elderly woman by the name of Martha Lennox. They killed her and then stole her car, and there isn't any doubt that Pondexter participated in that crime.
I'm not sure that he would have initiated it, but he participated in it voluntarily. And Martha Lennox was shot and killed inside her house in a suburb of Dallas.
By the time Pondexter was executed, more than 10 years after this crime had been committed, he was simply not remotely the same person that he had been at the time the crime occurred. He had completely grown up. He had matured.
There were guards on death row who approached me and told me that they didn't think that he should be executed. Several of them signed affidavits that we submitted to the Board of Pardons and Paroles on his behalf to try to have his death sentence converted into a life sentence.
He is somebody who, at the time that he was executed, I would have had no hesitation, none, asking him to babysit for our son. He was simply not dangerous anymore. He had been rehabilitated. As a society, we've mostly given up on rehabilitation, but Pondexter had been rehabilitated.
GROSS: Is this an example of one of the reasons why you do death row work, because there are people who are going to be killed for a crime in their past, and they've since been transformed in some way?
Mr. DOW: Yes, I think that that's certainly one of the factors that pulls me to the work. We're executing people who did something unspeakably terrible at some point in their lives, and yet by the time we execute them, many of these people, I'm tempted to say most, would not ever commit such a crime again.
I had another client who was executed just this past November who was executed because he and three others went out looking for a house to burglarize. They broke into a house because they thought it was empty.
There were four of them. Two stayed in the car, and two broke in. And while the two were inside - one of them was my client, whose name was Christian Oliver - and while Christian was inside the house, the owner of the house, a man by the name of Joe Collins, he returned home.
And Joe Collins happened to be a gun collector and a marksman, as well. And so he picked up one of his own guns and started to chase the two boys through the house.
And the two kids - Christian and the other one - ran to the back of the house to try to escape through the back. And unfortunately for them, the back door was locked. It was padlocked shut from the outside. And so the two took refuge in a bedroom in the rear of the house, and Mr. Collins cornered them there and started shooting into the room. And then my client, Christian Oliver, shot back and killed Mr. Collins.
Christian Oliver had been involved in other burglaries before this crime. He's never been involved in a violent crime. He'd never even shot at anybody, much less killed somebody. And so, here you have this - I call him a kid. By the time he was executed, he wasn't a kid anymore, but he was only 19 at the time this happened.
You have this young man, and he participated in a crime that should never have happened. He should never have participated in it. But the crime itself spun out of control in a way that he certainly didn't plan and probably nobody could have predicted. And by the time he was executed, 11, 12 years after this happened, I feel confident in saying that there was no way that was ever going to happen again.
DAVIES: David Dow, speaking with Terry Gross. Dow has represented more than 100 death row inmates. His memoir, "The Autobiography of an Execution," is now out in paperback. More after a break. This is FRESH AIR.
(Soundbite of music)
DAVIES: If you're just joining us, we're listening to an interview with David Dow, the litigation direction of the Texas Defender Service, which represents inmates on death row. Dow's memoir, "The Autobiography of an Execution," is now out in paperback. He spoke last year with Terry Gross.
GROSS: So when you are defending somebody who's already been convicted of murder, they're on death row, and you're trying to appeal their case, on what grounds can you appeal? You think they are guilty most of the time, not all the time but most of the time. So the question isn't whether or not they did the crime usually. So what is the case about then?
Mr. DOW: In death penalty jurisprudence, there's this very peculiar concept, and the concept is being innocent of the sentence. So the person isn't innocent of the crime. There's not an argument that the person didn't commit the crime. The argument is that the person is innocent of the sentence.
And what that means is that the person should have been sentenced to life in prison rather than death. So most of the time, what I'm doing as an appellate lawyer is trying to construct the argument to persuade a court that my client, even though he did something horrible, even though he committed a murder, should have been sentenced to life in prison rather than death.
And then there are a variety of argumentative strategies that we use to try to persuade the court that the person should have a life sentence rather than a death sentence.
GROSS: And which court are you appealing to?
Mr. DOW: Well, I personally, and my office generally, work in both the state courts, as well as the federal courts so that the first layer of appeals in death penalty cases go through the state courts. And then after you exhaust all of your opportunities in the state courts, you have an opportunity to go into federal court.
GROSS: And sometimes you've appealed directly to the Supreme Court.
Mr. DOW: Almost invariably, we try to take the case all the way up to the Supreme Court. The Supreme Court, unlike the other courts, has to give you permission to appeal to it. So we are allowed to file an appeal in the lowest federal court, the federal district court, and then if we lose there, we're permitted to appeal that loss to the intermediate court of appeals.
If we lose there, we almost always ask the Supreme Court to review the case, but the Supreme Court rarely does. They only hear these appeals in a handful of cases.
GROSS: We've talked about cases where you were convinced that your client was guilty of murder but that they shouldn't be executed. There is one example in your book of a case you took on where you came to believe that your client actually did not do the murder - did not commit the murder - murders that he was accused of.
Can you tell us briefly what the charges were against the person who you give the name of Quaker in the book? You've changed the names in the book.
Mr. DOW: I have changed the names. The story that I tell about Henry Quaker is a story involving one of my clients who was convicted of killing his wife and his two children. Over the course of my work on that case, I came to be convinced that he didn't actually commit the crime.
Of all the cases that I've worked on over the years - more than a hundred cases - there've been only seven or eight where I reach the conclusion that my client didn't commit the crime that he was sent to death row for.
One of the erroneous beliefs that people have about death row inmates is that they all claim to be innocent. In my experience, very few of them claim to be innocent. And what that means, if you're a death penalty lawyer, is that when somebody claims to be innocent, you pay attention to that claim, and you pay attention to it because it isn't all that common for people to claim to be innocent.
Henry Quaker told me he was innocent, and I didn't believe him at first. I didn't disbelieve him. I simply didn't form an opinion; I tried not to form an opinion.
But the more deeply we looked at the case, the more I became convinced that all of the evidence that had been used to support Quaker's conviction had problems with it. And at the end of the day, none of it really established his guilt. And that, coupled with the shear fact that I believed him when he told me he didn't do it combined to convince me that he was innocent.
GROSS: But you lost the case anyways.
Mr. DOW: We did lose the case, anyways. Of the six or seven or eight cases that I've mentioned where I said I think that I've been representing somebody who's innocent, the truth is that I've lost most of those cases.
That's one of the reasons that it's harder to represent somebody who you believe to be innocent than somebody who you believe to be guilty because, as a death penalty lawyer, you're going to lose most of the cases, almost all of the cases, and if you're going to lose almost all of the cases, this sounds odd to say, but it's less devastating to lose a case where you're representing somebody who actually committed the crime that he's being executed for committing.
GROSS: So for Quaker, whose innocence you believed in, did you witness his execution?
Mr. DOW: Yeah, I did witness Quaker's execution.
GROSS: Why was it important for you to be there?
Mr. DOW: There's a lawyer in my office who was asked to witness an execution at the end of last year, and she asked me whether she should. What I told her was that it is something you will never get over, that you have nightmares about it for weeks, months, maybe years.
And so what you have to decide when you're making the decision about whether you're going to witness your client's execution is whether the suffering that you're going to have for watching it is greater or lesser than how much your client needs you to be there.
I watch executions only if my clients ask me to. And if they ask me to, I watch because if they ask me to, I feel that it is more important to them that I be there than it is to me that I not be there.
In addition, one of the things that I talk about when I'm talking about the Quaker case is that in almost all of our cases, we're actually litigating the case up until the very end.
I had a conversation with one of my clients last week, and I was telling him that he could put me on the witness list to witness his execution if he wanted to but that I thought it was really more important that I be in my office working on the case if we were still working up until the end.
So I think that one reason that many death row inmates don't put their lawyers on the list of people to witness their execution is that their lawyers tell them they'd really like to be working on the case up until the very end.
That's certainly true in my case. I tell my clients that I'll be there if they want me to, but that I'd rather be at my office so that I can try to keep working on the case if there's anything left to do.
GROSS: Did you ever get one of those last-minute stays of execution?
Mr. DOW: Oh sure. We get last minute stays of execution - I'm tempted to say a lot. It's not a lot compared to the number of executions, but in 2009, for example, we had six or seven last-minute stays of execution. So it happens about every other month or so for us.
DAVIES: David Dow, speaking last year with Terry Gross. His memoir, "The Autobiography of an execution, is now out in paperback. David Dow is the litigation director of the Texas Defender Service and the Cullen Professor at the University of Houston Law Center. We'll continue with this interview in the second half of today's show. For Terry Gross, I'm Dave Davies, and this is FRESH AIR.
(Soundbite of music)
This is FRESH AIR. I'm Dave Davies, sitting in for Terry Gross.
Let's get back to the interview Terry recorded last year with David Dow, who spent over 20 years representing prisoners on death row. His memoir "The Autobiography of an Execution" is now out in paperback. Dow is the Collin professor at the University of Houston Law Center and the litigation director of the Texas Defender Service. He's represented more than a hundred inmates facing execution. Many of the condemned prisoners he's represented have asked him to attend their execution.
GROSS: So when you are witnessing an execution, do you try to make eye contact with your client when they're strapped to the chair?
Prof. DOW: The people who are being executed can't see...
GROSS: It's really a gurney, isn't it? It's not a chair anymore.
Prof. DOW: It's...
GROSS: In Texas it's a gurney and it's - what's it called? Like an IV. What's the word for it?
Prof. DOW: Right. It's lethal injection.
GROSS: Lethal injection. Yeah. Yeah. So you can't make eye contact because they're in a prone position.
Prof. DOW: Well, you could - you would be able to make eye contact if they could see you because you are standing at a level that is above them, so that you're essentially looking down at the person who's strapped to the gurney. And what typically happens is that there are three different rooms that witnesses are in. There's one room that is reserved for members of the press; there's a second room that is reserved for members of the - family members of the murder victim, and then there's a third room that is reserved for people who have been asked to witness the execution by the person who's being executed.
And they're those three different rooms and one of those rooms is essentially at the feet of the person's who's being executed and if the person who's being executed turns his head to the left - and I say his head because most people who are executed are in fact men - if he turns his head to the left he would be looking into the room where the family members of the murder victim are. And then if he turns his head to the right he would be looking into the room where his own witnesses are. But all of those windows are one-way glass so that the witnesses can see into the execution chamber but you can't see into any of the other rooms where witnesses are.
And so, by the same token, the person who's being executed can turn his head and look towards the family members of the murder victim. He can look toward his own witnesses but he doesn't actually see them because he's looking at a piece of one-way glass. So, I guess in answer to your question, it's possible for the witnesses to make eye contact with the execution victim but it's a sort of one-way eye contact. You're looking at the person who's being executed but he's not seeing you.
GROSS: It's hard to single out not being able to make eye contact as the thing that's unfair about execution, but it does seem like okay, so you're executing the person, shouldn't they at least be allowed to make eye contact with family or friends? Is there like a reason why it's one-way glass and they're not allowed to see you?
Prof. DOW: The reason that it's one-way glass is simply because if it weren't the witnesses would be able to see into the other witness rooms and I...
GROSS: Oh, I see so - Mm-hmm.
Prof. DOW: Yeah. And so I think the idea is that they don't want, for example, the relatives of the person who's being executed to be able to look into the room and observe the family members of the murder victim and vice-versa. They don't want the family members of the murder victim to be able to look into the room where the relatives of the person who's being executed are located. So I think that's just the practical reason that they do it. But the truth is that it goes beyond not being able to make eye contact.
When people arrive on death row they lose their opportunity to have contact visits with anyone. In some cases the lawyers can have contact visits with their clients but they're not permitted, any longer, to have contact visits with their family members. So when somebody gets executed, he has to tell his family goodbye by talking to them on a telephone. I was talking earlier, about my client Christian Oliver who was executed last November.
His execution was witnessed by four members of his family - his mom, his dad, his brother and his sister - and he had to tell them goodbye by essentially talking to them on a microphone. He wasn't permitted to hug them; he wasn't permitted to kiss them. I think that that aspect of the way that we carry out executions in the U.S., and in Texas, in particular, is an aspect of these executions that has been particularly bothersome to me.
DAVIES: David Dow, a lawyer who represents death row inmates in Texas, speaking last year with Terry Gross. Dow's memoir, "The Autobiography of an Execution," is now out in paperback.
More after a break.
This is FRESH AIR.
DAVIES: We're listening to an interview with David Dow, a lawyer who has represented over a hundred death row inmates. His memoir, "The Autobiography of an Execution," is now out in paperback.
Here's Terry Gross.
GROSS: You know, I found it really interesting in your book that you often warn your death row clients that if they appeal they're probably not going to win. And if they lose they might be executed very shortly after they lose and they're not going to have time to prepare for their death. Why do you tell your clients that?
Prof. DOW: I was talking earlier about how, in most cases, we are litigating up until the very end; we're trying to find something else that we can file, something else that we can do. But at the same time, even if we find something, I know we're going to lose. And so I think that it's incumbent on me as a lawyer to tell the clients that we're going to lose. And I do that for two reasons: one of them is altruistic and one of them isn't. The altruistic reason is that I believe in being honest with my clients. I don't want to tell them that I think that we're going to win if I don't think that we're going to win. I don't want to mislead them. I don't want them to put off doing things that people who know the date that they're going to die might want to do. I don't want them not to write goodbye letters to people they want to write letters to. I don't want them not to say goodbye to their loved ones. I don't want them not to make plans for disposing of their body if that's important to them. So, one of the reasons that I'm honest is just so that my clients can tie up the loose ends the way many people would want to.
The second reason is that I'm the one who has to call them after our final appeals have been turned down by the Supreme Court and that typically happens at 5:30 in the afternoon or 20 to 6:00 and the execution is scheduled for 6 o'clock.
Prof. DOW: And I pick up a telephone and I call the prison where they're going to be executed at that time. My clients are still in a holding cell, which is immediately adjacent to the execution chamber and I identify myself to the warden's assistant who answers the phone, although I think she knows my voice by now, and then she patches my call through to the telephone that's right next to the holding cell. And a guard picks it up and I identify myself to the guard. I think he knows my voice as well by now, and then I talk to my client. And I tell him that we lost.
Sometimes the conversations are very, very short. Sometimes they're a little bit longer. One of the reasons that I'm so clear when I tell them that this is the way the cases are probably going to develop, is that I have in fact had the experience of calling someone who was not prepared to die. And I called him and told him that we had lost and he started crying and the crying turned into something that was close to hysteria and he was begging me to do something else, to file something else, to think of something else to try to do for him. And those are horrible conversations to have. They're terrible for the inmate, of course, but it was also, frankly, terrible for me and I don't want to have anymore conversations like that.
GROSS: Now, you write in your book that the people you meet on death row, they're not monsters; they're people and often they're transformed people 'cause the crime that they committed - the monstrous crime they may have committed - was years ago and they often change between the time of the crime and the time of the execution. Yet, at the same time, you write in your book: I believe in evil. When you use the word evil and say that you believe in it, what do you mean?
Prof. DOW: I do believe in evil. I believe that there are some people who are just bad and they're never going to be made good. And I think I say in the book, I hope I say in the book, that I don't know how they got to be that way. I don't know whether they were born that way or whether they were broken at such a young age that that's how they came to be that way, but from the point of view of society it doesn't really matter. It doesn't really matter why a person is inveterately bad. And I think that there are people like that. I don't think that we need to be executing them. But I do believe that they're people in prison who can not possibly be made good - who can not possibly be rehabilitated.
GROSS: And what's your role as a defense attorney when you're representing somebody who you not only believe is guilty but who you believe is evil?
Prof. DOW: My role as a defense lawyer is to try to persuade the court -the judges - that my client should've been sentenced to life rather than death. And I will say this, that even in those small number of cases where I've been representing somebody who I really believe is or was an evil person, even in those cases, there were appalling constitutional violations. And one of the things that I noticed about those cases is that the fact that my client seems to be evil, seems to make it easier for the judges to ignore the fact that there were constitutional violations. They just don't care about it. They say, here we have a bad person; this is a bad person. There's no way this person is ever going to be fixed or better or rehabilitated. Let's just be done with him. And I represent those people because I don't accept that analysis. I don't think that that's the way United States legal system is supposed to work. Even my bad evil clients are human beings who are entitled to have their rights protected.
GROSS: David Dow, thanks so much for talking with us.
Prof. DOW: It's my pleasure. Thank you for having me.
DAVIES: David Dow, speaking last year with Terry Gross. His memoir, "The Autobiography of an Execution," is now out in paperback. You can read an excerpt of his memoir on our website, freshair.npr.org.
Here's an update. In 2010, 17 prisoners were executed in Texas. David Dow's practice represented 13 of them. There were six stays of execution in Texas last year. Three of them were litigated by Dow's office. He and his colleagues at the Texas Defender Service are currently representing some 40 death row inmates in the state. The next execution is scheduled for May 3rd. Dow's office is assisting in that representation.
(Soundbite of music)
NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.