Sunday, March 15, 2015

David Dow's War

8/29/2015 UPDATE: I am not sure how I missed this, but on 6/26/2015 The Texas Supreme Court (SCOTX) dismissed Dow's Writ of Mandamus and Declaratory Judgment, subject of the update below, based on lack of jurisdiction. The per curiam order can be read here. After reading the opinion, I found interesting what SCOTX writes Dow told the CCA at his 1/04/2015 show cause hearing:
In his earlier statements and again at the [contempt] hearing, Dow explained that he had 'worked diligently to meet that deadline' but had many professional demands on his time. Paredes’s case, he said, was taken pro bono and close to the last minute, was complicated, and required ample investigation. Besides frequently handling capital cases in post-trial proceedings, usually pro bono, Dow is the Cullen Professor of Law at the University of Houston Law Center, the Rorschach Visiting Professor of History at Rice University, of counsel to the Houston law firm of Smyser Kaplan &Veselka, and the founder of the Texas Innocence Network.
In other words, Dow was overextended. I wonder if he and other post-conviction lawyers would find the same explanation acceptable in pressing the case for a new trial in a state or federal post conviction writ based on constitutional based ineffective assistance of trial or appellate counsel.

03/20/2015 UPDATE: In my original post, I wrote the transcript from the show cause hearing on January 14, 2015 would be an interesting read. It is, and it can be read here. Dow has filed an original action for Declaratory Judgment or, in the alternative, a Writ of Mandamus in the Supreme Court of Texas (SCOTX). It can be found here. It seeks to compel the CCA to withdraw the suspension on the grounds the CCA not only misread their ambiguous rules on filing deadline, but exceeded their authority in punishing Dow. Nicole DeBorde and Casie L. Gotro are the lawyers on the Petition/Writ in the SCOTX filing. Both DeBorde and Gotro appeared on Dow's behalf (along with Stanley Schneider) on the Motion for Rehearing originally filed in the CCA. Schneider and Emmett Harris filed an amicus brief filed by the Texas Criminal Defense Lawyers (TCDLA) on behalf of Dow. Harris is the current president of the TCDLA. It can be read here.


David Dow is at war.

His suspension from practice before the Texas Court of Criminal Appeals (CCA) for one year has been commented on by many, including Dahlia Lithwick ("Revenge, Not Justice") at Slate and Laura Arnold, in an opinion piece ("Texas Defender Drew Unfair Treatment "[firewall protected]) in the Houston Chronicle. 

First up, Slate's Lithwick, who turns a phrase nicely:
We joke darkly about Texas and the death penalty a lot in this country, in part because Texas makes it so darn easy. Suspending one of the nation’s most prominent and outspoken death penalty lawyers in a snit is just silly. Suspending him for a year, while other lawyers doze and drink their way through trials as their clients face death, borders on the criminal.
Next, in her Houston Chronicle piece, Arnold wrote the following:
It's hard to overstate how unusual it is for [the CCA] - or any court - to bar a lawyer from arguing before it for such a minor administrative error. Why did the court treat David Dow with an iron hand, especially when it has treated other lawyers accused of much worse misconduct with kid gloves? There appears to be no explanation other than pure retribution.

 My perceptive is more nuanced. This post details the history of Dow's war, and the bizarre twists it has recently taken. It is not the nuance found in a five hundred word news story. So what is the real deal? It takes awhile, but here we go.

David R. Dow is founder the Texas Innocence Network (TIN) at the University of Houston Law Center where he is an endowed Professor. Dow has represented well over 100 clients facing the death penalty. Most all of these clients have been in the post conviction stage. He was litigation director at the Texas Defender Service (TDS) from July 2006 to 2011. Dow's book, The Autobiography of an Execution, should be required reading by those desiring to debate intelligently about the death penalty.

Dow's troubles with the CCA began on September 25, 2007, the day his TDS client, Michael Richard was scheduled to be executed - at 6:00 p.m. At 9:00 a.m. that day, the Supreme Court of the United States (SCOTUS) granted a certiorari petition regarding the constitutionality of the Kentucky three drug death cocktail. It was the same cocktail used by Texas. The certiorari grant by SCOTUS should have ensured a stay of execution for Richard.

Somehow, it did not happen and Michael Richard was executed.

The case SCOTUS granted certiorari was Baze v. Rees and was eventually decided in favor of the government. That eventuality, however, does not change what should NOT have happened on September 25, 2007 - Richard's execution. Why Richard was executed that day is a road map for what is wrong with the state and federal post conviction appeals system in death penalty cases. It singularly illustrates the dysfunction in the Texas system.

After Richard was executed a complaint against CCA Presiding Judge Sharon Keller was made with the Texas Commission on Judicial Ethics for her decision not to keep the CCA clerk office open for the filing. A Special Master was appointed and Court of Review convened to determine what, if any, sanction should occur as a result of the debacle.

Eventually, the Special Master issued a report with findings of fact for the Texas Commission on Judicial Ethics (the report). The report's findings were criticized in several corners. Regardless of its shortcomings, the report is useful in fleshing out the factual differences and the timeline of what did and did not happen that unfortunate day.

The timeline in the report to about 4:00 p.m. on the day of Richard's execution is not contested. After 4:00 p.m. there was major disagreement about exactly who said what to whom. The report allows that about 4:45 p.m. Dorinda "Rindy" Fox, a TDS paralegal working in Austin contacted Abel Acosta, the CCA clerk about keeping the CCA clerk's office open past 5:00 pm for filings in an attempt to stay the execution of Richard slated at 6:00 p.m.

It is at this point things started to really break down. The CCA General Counsel, Edward Marty, was contacted by Acosta, Marty then called Presiding Judge Keller. Neither the clerks office nor any CCA Judge was made available for the TDS filing to stay an execution that should not have occurred.

The report lays most of the blame at the feet of Dow and the TDS for reasons that seem legitimate but unduly technical. The report says Dow and the TDS lawyers should have been communicating with the CCA and not delegated it to a paralegal. Although there is much, much more, my reading of the report reveals basically anything and everything that could have failed that day did, in fact, fail.

The report goes on to point out former CCA General Counsel Rick Wetzel accepted late filings in death penalty cases, something TDS was aware of, and had no reason to think that had changed with Wetzel's departure from the CCA and Marty's appointment. Yet the report criticizes Dow and the TDS for not being aware of who and how to file in this emergency situation.

The report is also critical of Presiding Judge Keller and the failure of the CCA to have an established procedure in place to deal with this kind of situation. Instead, the CCA had "oral traditions" and "unwritten rules."

I know Rindy Fox, the TDS paralegal in the middle of the Richard execution storm. When I knew Rindy, she lived and worked in the Bryan/College Station area. She was a passionate and committed advocate for both the intellectually disabled and AID/HIV victims when both were treated in manner akin to lepers.

I know Rick Wetzel professionally. There is no better appellate lawyer in the State.

Abel Acosta has been a point of contact for my office when we had questions (and there have been many) on a variety of filings with the CCA. He has never been less than helpful, kind and accommodating.

After reading the report and knowing the people and processes involved, it is plain that Richard's death on September 25, 2007 was foremost a culmination of failures that permeate any human system.

After the finger pointing between Dow and the CCA, some process changes were made. The CCA put into place a miscellaneous rule, 08-101 in an attempt to avoid the problems with the oral traditions and unwritten rules highlighted in the report.

Dow then allegedly missed a filing deadline prompted by the Richard fiasco.

In December 2009 Dow was ordered to appear and show cause why he should not be held in contempt for violating this rule in anther post conviction death penalty case, Ex parte Simpson. Grits for Breakfast provided insight in a post.
[I ] wish it hadn't been David Dow who was first to violate the new policy. His relationship with the court is already complex, confrontational, and incredibly personal. Basically these folks just don't like each other on a level that transcends any given issue. So there's a risk the CCA will set some particularly ugly precedent just to send a personal message to Dow, rather than calculate what's really the fair way to handle tardy, last-minute capital submissions.
More than six months after the show cause hearing in front of the CCA, in June 2010, the CCA ominously found good cause had not been shown by Dow for the filing deadline violation. The CCA did not, however, make a contempt finding, instead warning Dow. (Presiding Judge Keller did not participate):
After hearing from counsel and considering the record in the case, the Court has determined that counsel David Dow has failed to show good cause for the untimely filing. The Court will take no action at this time against David Dow. However, should Dow again violate this Court's Miscellaneous Rule 08-101 without good cause, a sanction could result in a suspension from practicing before this Court. 
Unfortunately, Dow again allegedly violated the filing deadline rules in late 2014.

On November 10, 2014, Dow was ordered to show cause why he should not be held in contempt and sanctioned for a late filed pleading in a death penalty case, Ex parte Paredes. The show cause order contains the relevant allegations the CCA makes for which the order was issued. The specific rule, Miscellaneous Rule 11-003, a successor to Misc. Rule 08-101, requiring filings in death penalty cases be filed within seven days of scheduled execution unless a detailed explanation, under oath, is attached to the filing.

Dow appeared, without counsel, at the show cause hearing on January 14, 2015. I do not know if the contempt hearing was on the record. I have a hard time imagining any contempt hearing NOT being subject of transcription by a court reporter. In light of subsequent developments the reporter's record of the proceedings would be more than an interesting read.

What is known is the same day as the hearing, the CCA issued an order finding Dow in contempt and ordered the one year suspension from practice in front of the CCA. The order specifically mentions the previous findings made in 2010 in Ex parte Simpson. The per curiam contempt finding and resulting sanction can be read in its entirety here. Judge Elsa Alcala noted a dissent only to the extent she would have placed Dow on probation for two years and fined him $1000.

The case then took a interesting, and bizarre, turn.

Dow retained Stanley Schneider, who filed a Motion for Rehearing on the contempt finding. On February 25, 2015 four judges on the CCA filed or joined a dissent on either the merits of the contempt finding or the denial of the Motion for Rehearing. Judge Alcala filed a full dissent on both the contempt finding and the sanctions against Dow. Judge Bert Richardson joined by Judge Johnson dissented on the denial for request for rehearing. Judge David Newell filed a separate dissent on the denial of rehearing.

These dissents raise several real issues about both the CCA and the war with Dow.

 Judge Alcala's dissent echos almost exactly positions taken by Stan Schneider in his Motion for Rehearing. In a nutshell, Judge Alcala decided Dow's filing was either on time or just slightly late. If late, Judge Alcala determined the suspension excessive.

Judge Alcala's dissent was issued almost a month and half after the show cause hearing and the CCA finding of contempt. What changed? Was Stan Schneider argument THAT persuasive? Why did it take the retaining of Schneider and the filing of a Motion for Rehearing for Judge Alcala to see the light, and Judges Richardson, Johnson and Newell to say to themselves, "Hold on, let's think about this first?"

Judges Richardson and Newell are newly minted Judges on the CCA. Their terms began January 1, 2015. Although both dissented on the denial of the Motion for Rehearing, Judge Richardson's dissent could not resist lobbing a grenade in Dow's direction:
With all due respect, borrowing from the wisdom of Abraham Lincoln, in most cases
a lawyer 'who represents himself has a fool for a client.' On the heels of being held in contempt by this Court, Respondents decided it might have been prudent to hire counsel to represent them on this matter. They have retained counsel and seek rehearing so that their newly retained counsel may present their defense in this matter. I would recommend granting the Respondents’ Motion for Rehearing for that purpose.

Judges Acala, Richardson, with Judge Johnson joining and Newell's dissents were all designated for publication. The original per curiam order of contempt and sanction was not so designated. In all, four of nine Judges at the CCA changed their minds as a result of arguments in the Motion for Rehearing. Of those four, Judges Alcala, Richardson and Newell were not around for the tumult of the Ex parte Richard and Ex parte Simpson and the resulting fallout.

By the same token, what was Dow thinking when he walked into the CCA on January 14, 2015 without a lawyer before a court he KNEW wanted his head on a stick? Dow knew of the threat made in Ex parte Simpson, yet filed no written response to the CCA's show cause order. Had he not thought of them? Or is the war such that they were made at the show cause hearing but fell on deaf ears? Why did it fall to Schneider to make written arguments that ultimately led to Judge Alcala's full throated dissent on both the finding and the sanction?

Grits for Breakfast had been a vocal supporter of Dow throughout the Richard litigation and the subsequent Court of Inquiry involving Chief Judge Keller. Grits noted the Lithwick story in Slate on the contempt finding and her critiscism of the finding and sanction. Grits wrote, however:
  Personally, I'm a bit more sympathetic to the CCA than that. I don't doubt Dow's being singled out, but he's also singularly the source of repeated late filings (e.g., "we close at 5"), about which the court has adjusted and reiterated the rules in response to little apparent effect. File your damn briefs on time and this won't be a problem. Everybody else does 
 I say: Hear! Hear! Make the dang deadline. Attention to detail will help win wars.

NOTE: David R. Dow is the post conviction lawyer in Ex parte Stanley Griffin, a capital murder case in which the death penalty was assessed. I was a defense trial lawyer in that case.  

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