Last week I wrote about the suspension of David Dow, one of the country’s most prominent capital defense attorneys. He was benched for an entire year by Texas’ Court of Criminal Appeals—the state’s highest criminal appeals court—for allegedly filing a late petition in a death penalty case. The sanction was doubly bonkers, I argued, because other death penalty lawyers never seem to be sanctioned for sleeping, drinking, or otherwise rendering themselves incompetent at trial. In any event, Dow was barred from appearing before the CCA for 12 months. Which means that his death row clients—whom he represents pro bono, and who may not find other lawyers to do so—literally have their lives on the line because a motion may or may not have been filed a few hours late. Or, as one lawyer quipped after the piece was posted: “Apparently Texas finally found one lawyer to be incompetent: the one who is actually good at his job.”
On Wednesday an extraordinary petition was filed in the Texas Supreme Court by some 300 lawyers seeking a declaratory judgment or, in the alternative, a writ of mandamus, overturning Dow's suspension. The document is 263 pages long, of which many are signature pages. In effect, the petition asks Texas’ Supreme Court to declare that the CCA exceeded its authority when it suspended Dow, or that the CCA exceeded its authority and violated Dow’s constitutional rights when it suspended Dow absent fraudulent or dishonorable conduct or malpractice, and also failed to give Dow his due course and process of law. This is fancy Latin for asking the court to set aside the suspension.
The gist of the petition has to do with the case Dow was handling on appeal. His supporters say that if the original trial counsel had done the things he was supposed to do at the original trial (like, say, put on mitigating evidence; explain to the jury that his client was mentally ill; call even a single witness at punishment phase), Dow would not have needed to step in at the last minute to try to stay the execution. In our topsy-turvy capital defense universe, Dow is being sanctioned for trying to (quickly and with an execution date looming) do what defense counsel should have done in the first place.
The petition contends that Dow filed within the timeframe mandated by the CCA’s rules (which are ambiguous, because the rule says you have seven days to file, but an example laid out after the rule says you have eight days), and notes the chilling effect this sanction will have on the rest of the capital defense bar: “The CCA’s extraordinary construction of the rule, and decision that the penalty for the filing would be a one year suspension will undoubtedly cause other attorneys in Dow’s position to decide not to file documents for inmates facing execution.” The petition notes, simply, “As a result, people may die, some of them innocent, with valid claims their court appointed and publicly paid lawyers failed to develop out of fear of sanction by the CCA.”
The petition further argues that the Texas Supreme Court has the sole authority to regulate the practice of law, and that Dow was sanctioned in this extraordinary fashion without due process of law. Finally the petition argues that what the CCA did—in sanctioning Dow as severely as it did—was purely punitive:
There is no question that Dow is a respected and effective advocated against the death penalty. He has appeared numerous times before the CCA and as mentioned, his criticism of its work has not always been kind. Yet, the ability to proffer and advocate differing opinions and for change is the essence of our judicial system. Lawyers are not only permitted to zealously and passionately represent their clients, but this is what the Bar strives towards. The fact that a court may find certain methods distasteful is of no consequence. Rather, only when an advocate crosses the line and acts fraudulently, dishonestly, or commits malpractice can he be punished for his actions. As detailed above, Dow’s conduct did not reach such a threshold.
I asked Laura Arnold, co-chair of the Laura and John Arnold Foundation and a former member of the national board of directors of the Innocence Project, about the new petition. She says the Texas Supreme Court, urged by literally hundreds of lawyers from across Texas, has the opportunity to do the right thing: “There is no question that the punishment imposed on David Dow by the TCCA was unprecedented, disproportionate and excessive. There is strong reason to believe that the magnitude of Dow's sanction was rooted in nothing more than sheer political retribution. The Texas Supreme Court, as the highest court in the state, has the opportunity—and, I would argue, the obligation—to right this wrong. Only then can we hope to restore credibility and fairness to our criminal appeals process.”
Casie Gotro, one of the two attorneys who authored the brief, puts it more succinctly: “Suspension for a late filing? If every court in Texas followed in the CCA's footsteps, I promise you there would quickly be a shortage of practicing lawyers. It is so disproportionate, it can only be personal.”
It doesn’t happen often, but when I wrote about the Dow case last week, readers suggested that I had to be making things up because no court would possibly sideline a prominent lawyer for an entire year for narrowly missing a filing deadline. Except of course I wasn’t making it up, it did happen, and 300 Texas lawyers are as astonished by that fact as the rest of us. Here’s hoping the Texas Supreme Court does the right thing.