A Criminal Enterprise

Autobiography of an Execution

Posted in Uncategorized by Sophie Cull on February 12, 2010

Professor David Dow is the director of the Texas Innocence Network at the University of Houston Law Center and has just released a new book: “Autobiography of an Execution.”

Dow deals with a number of issues in the book – how he reconciles his passion to represent death row inmates with the reality of what his clients have done to victims and their families; how he struggles to balance his emotionally devastating and time-consuming work with his desire to be a good husband and father; and how he battles against a system of courts that overwhelmingly defeats his efforts to save his clients’ lives.

Below is an excerpt from the first chapter of Dow’s book. It’s a good example of the way Dow integrates his personal reflections into an account of his professional life. Though it is unsurprising that he cannot separate the two.

My first client was executed in 1989. Derrick Raymond was an average bad guy who did one very bad thing. He dropped out of high school in tenth grade. Two years later he enlisted in the army to learn a skill. He wound up in Vietnam. He did not talk much to me about the war. I learned about his service record ten years after he was executed, when one of his army buddies tried to track him down but got in touch with me instead. Derrick returned to Houston with a purple heart and a heroin habit that cost him five hundred dollars a week, but still without any job skills. He pumped gas until he got fired for missing too many days. Drug addiction has many consequences. He started robbing convenience stores and fast-food restaurants. After one stickup, which netted him $73 and change, he was running down the street when the security guard gave chase, shooting. One shot hit Derrick in the leg. He fell to the pavement, turned around, and fired five shots at the security guard. The guard took cover, but one shot hit a seven-year-old boy who had just finished having lunch with his mother. There might be nothing sadder than dead children. On top of that, Derrick was black and the boy was white. That’s a bad combination. The jury took less than two hours to sentence him to death.

Derrick’s lawyer fell asleep during the trial—not just once, but repeatedly. The prosecutor was appalled, but the trial judge just sat there. When a new lawyer requested a new trial, the court of appeals said no, because the judges believed Derrick would have been convicted even if his lawyer had been awake. Another court-appointed lawyer represented him for his habeas corpus appeals in state court. That lawyer missed the filing deadline. If you miss a deadline, the court will not -consider your arguments. That’s when I got appointed to represent Derrick in federal court. But the federal courts have a rule: They refuse to consider any issues that the state courts have not addressed first. The state court had said that Derrick’s lawyer was too late and had therefore dismissed his arguments. So the federal court would not hear our appeal either.

My job as a lawyer, therefore, consisted mostly of planning the disposition of Derrick’s estate. Of course, he didn’t have an estate, meaning that my job was to arrange for the disposal of his body. (He did not want to be buried in a pauper’s grave right outside the prison gates in Huntsville, Texas.) Making funeral arrangements didn’t take very long either, so my job was really just to be his counselor, to listen to him, to send him books or magazines, to be sure he would not have to face death alone. My goal is to save my clients, but that objective is beyond my control. All I can control is whether I abandon them.

I would visit Derrick once a week and talk to him by phone another day. He had a son, Dwayne, who was twelve when his dad arrived on death row and nineteen when Derrick was executed. I sat next to them as they struggled to connect. The Internet is ruining society because human relationships are inherently tactile. It’s hard to become close to a man you can’t touch, even (maybe especially) if he’s your dad. I told them I was hopeful that the Board of Pardons and Paroles and the governor would commute Derrick’s sentence, and I was. I am always hopeful. Nothing ever works out, but I always think that it’s going to. How else could you keep doing this work? I watched his execution because he asked me to.

At 12:37 a.m. on Thursday, March 9, 1989, Derrick was put to death in front of me, Dwayne, and two local reporters. Afterward, I hugged Dwayne, got in my truck, and drove with my dog and a case of Jack Daniel’s to my cabin on Galveston Island. I sat on the deck watching the Gulf of Mexico and drinking. The moon was bright. The mullet were jumping in schools and I could see trout in wave curls feeding. I smelled the rain. I left the front door open so the dog could go outside when she needed to and dumped a week’s worth of food in her bowl. At dawn the sky blackened and the storm rolled in. I made sure my lounge chair was under the eave then closed my eyes and slept. When I’d wake up to use the toilet, I’d drink a shot of whiskey and chase it with a pint of water. I intended not to get dehydrated. Other than the birds and the surf, the only sound I heard was the thump of newspapers landing on driveways every morning. On Monday, I opened four papers, to figure out what day it was. I ran for an hour on the beach with the dog and swam for thirty minutes in the surf while the dog watched. Walking back to the cabin for a shower I said to her, Sorry for being a terrible master. She picked up a piece of driftwood and whipped her head back and forth.

We had lunch sitting on the deck at Cafe Max-a-Burger. I ordered four hamburgers, a basket of onion rings, and a lemonade. The dog ate her two burgers so fast that I gave her one of mine. When I paid the bill the cashier said, That’s one lucky dog.

I said, Thanks for saying so, but you have it backwards. That dog is by far my best quality.

Publisher: Grand Central Publishing; Date: February 2010

You can hear an interview with David Dow about the book here (see Feb 9):

http://www.abc.net.au/rn/lifematters/

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Chris Geidner: “The Machinery of Death: What Happened Today in Ohio”

Posted in Uncategorized by Robert Smith on October 6, 2009

Thank you to Chris Geidner at Law Dork for permission to repost his insightful piece on today’s events in Ohio:

The Machinery of Death: What Happened Today in Ohio

Today was a complicated day for Ohio.  Specifically, it was a complicated day for those officeholders responsible for implementing and judging Ohio’s death penalty process — and for those seeking an insight into the future of Ohio’s death penalty.

In recent months, Governor Ted Strickland (D) has overruled his Parole Board’s recommendation to grant clemency to Jason Getsy, who was executed on Aug. 18, and finally put a stop to the attempted execution of Romell Broom on Sept. 15 after the execution team failed over a two-hour period to access a vein to inject him with the lethal drugs.  The botched attempt at executing Broom led the editorial board ofThe New York Times to state that “every state should use this shameful moment to question whether they ought to be putting people to death at all.”

And today did begin with the U.S. Court of Appeals for the Sixth Circuit issuing a stay of the scheduled execution of Lawrence Reynolds, yet another Ohio Death Row inmate.

The 2-1 panel opinion from the Sixth Circuit would have put a halt to the October 8 execution of Reynolds.  Ohio Attorney General Richard Cordray (D), however, took quick action to attempt to keep the execution on schedule by asking the U.S. Supreme Court to lift the stay.  Before the Supreme Court could take action on the request, though, Strickland granted a reprieve that put off the execution for several months — but did nothing to answer the current questions surrounding Ohio’s implementation of the death penalty.

Continue Reading

The Governor of Texas, the Execution of an Innocent Man, and the Incomplete Search for Public Accountability

Posted in News by Bidish J. Sarma on October 2, 2009

It is relatively rare for an American politician seeking office or re-election in a State that has retained the death penalty to make a strong statement against capital punishment.  (Ohio’s Jennifer Brunner is a refreshing exception).  However, one might expect a State’s leader to respond to compelling evidence that his government executed an innocent man with measured concern and a desire to uncover the truth.  Not in Texas.

Nearly one month ago, the New Yorker published David Grann’s riveting and alarming piece that suggests that Texas wrongfully executed Cameron Todd Willingham in 2004.  Despite the compelling expert evidence available in 2004 that indicated Mr. Willingham was convicted on the basis of ‘junk science,’ Texas moved brazenly forward with his execution.  After Grann’s article rocked the nation in September, the Texas Forensic Science Commission prepared to make an official state-sponsored inquiry into Willingham’s conviction and the testimony that led to his death by lethal injection.  Yet, two days before the inquiry was set to begin, Texas Governor Rick Perry sabotaged the effort.  According to this Dallas Morning News article, “The hearing of the Texas Forensic Science Commission, scheduled for Friday in Irving, was abruptly canceled by the new chairman the governor chose, Williamson County District Attorney John Bradley. He is considered one of the most conservative, hard-line prosecutors in Texas.”

Though Perry defends his decision to appoint Bradley and railroad the commission as nothing more than a “typical” use of his appointment power and executive prerogative, nobody is buying his line.  There is no such thing as ‘business as usual’ when the State uses its coercive power to execute an innocent man.

For anti-death penalty activists, Perry’s actions represent a mixed blessing.  On the one hand, Perry has exploded the long-held hope that a State would officially recognize that it had mistakenly executed someone who was actually innocent.  On the other hand, Perry has only drawn more attention to the issue.  I find myself a little surprised he didn’t let the hearings proceed as scheduled and then strong-arm the Commission’s members (behind closed doors) to publish an equivocal report that did not firmly accept responsibility for wrongdoing.  Instead, Perry has made a naked attempt to undermine the Commission’s work.  His move seems to emanate from a deep fear that what most of us think is true: Cameron Todd Willingham was an innocent man.

Maybe anti-death penalty advocates have been unrealistic to hope that a State would acknowledge such a tragic mistake.  Maybe we already have all the evidence we need.  Who really needs Rick Perry’s stamp of disapproval, after all?

But, I wonder if other government officials can take action in Texas.  Can the legislature rebuke Perry?  Or, more importantly, can the legislature create a non-executive commission to undertake the task originally charged to the Texas Forensic Science Commission?  If that is too much to hope for, perhaps the judiciary should step in.  Judges and Justices concerned with the fair operation and administration of the Texas criminal justice system are not powerless people.  Why can’t the judiciary establish its own commission to investigate whether any innocent individuals have been executed in Texas?  The judicial branch is certainly empowered to ensure that it is working effectively, efficiently, and, above all, justly.  The appearance of impropriety and injustice can sap the judiciary of its public legitimacy, and undermine people’s faith in the criminal justice system.  The judiciary has an obligation to protect itself.

As advocates, we need not focus only on the Governor, deplorable as his actions may be.  Let us hold the entire government responsible, until someone steps up.  Inaction here is as contemptible as Perry’s bad action.  Once again, who needs Rick Perry?

Our Secret Spectacle & The Need For Public Executions

Posted in News by Bidish J. Sarma on September 19, 2009

In his book “The Death Penalty: An American History,” Stuart Banner explains that executions were historically a public event in the United States:

Until the nineteenth century, hangings were conducted outdoors, often before thousands of spectators, as part of a larger ritual including a procession to the gallows, a sermon, and a speech by the condemned prisoner.

Over time, however, “the public representation of capital punishment became embroiled in issues of class and taste.  For members of a self-conscious elite, particularly in the North, sights that had been thought educational in 1800 were too shocking for display by 1850. . . . Between 1830 and 1860 every northern state moved hangings from the public square into the jail yard . . . .”  Banner further observed, “the move into the jail yard changed the character of capital punishment. . . . with executions conducted behind closed doors . . . out of the public eye, the people were no longer punishing the criminal.  Now the government was doing the punishing, and the people were reading about it later.”

This past week, as news broke of the State of Ohio’s botched attempt to execute Romell Broom, I began to think about whether our society needs to make public executions available.

Executions continue to be conducted in private.  As Justice Brennan noted in his concurring opinion in Furman v. Georgia, 408 U.S. 238, 297 (1972), “[n]o longer does our society countenance the spectacle of public executions, once thought desirable as a deterrent to criminal behavior by others. Today we reject public executions as debasing and brutalizing to us all.”  Of course, the deep irony is that we have sanitized the execution process not by banishing capital punishment altogether, but by removing it from the “public square.”  If our states retain the death penalty on the basis that it commands popular support, then the people who purportedly authorize the punishment should be willing to see it for what it is.  And, if proponents of capital punishment truly believe that a significant deterrent effect justifies the death penalty, why have we refused to maximize that effect?  Why don’t we videotape executions?  Why aren’t they broadcast over the internet?  Why don’t we expose our children to them, so that they may learn something valuable?

Perhaps Romell Broom’s experience down the hall from Ohio’s death chamber will convey to the public just how (in)humane the lethal injection procedure is.  But, proponents of the death penalty can mock his pain (like one blogger has done here) because we will only have his testimony from which to base our opinions.  And, our society’s willingness to cast aside the “self-serving” testimony of a convicted murderer will surely prevent a widespread impact upon public opinion.  However, if we had the videotape – if we could see for ourselves what the citizens of Ohio and 34 other states have condoned – maybe our understanding would change.  As one court put it: “Independent public scrutiny ‑ made possible by the public and media witnesses to an execution ‑ plays a significant role in the proper functioning of capital punishment. . . . there is both an historical tradition ‑ beginning with entirely public executions and continuing with the practice of inviting official witnesses ‑ and a functional importance of public access to executions.”  California First Amendment Coalition v. Woodford, 299 F.3d 868, 876‑77 (9th Cir. 2002).  Without public access, we doom ourselves to ignorance.  We grant the State the ultimate authority over our minds and bodies – we submit ourselves to its coercive power, and yet we forfeit public oversight.

While lawyers, victim’s family members, public officials, and prison staff wondered what was happening with Romell Broom in the execution-prep room, a tape should have been rolling.  Instead of watching that tape, we will wait for the courts to rule again that it is neither cruel nor unusual for the State to attempt to execute someone whom it failed to kill the first time.  This time around, like the last, the only guarantee is that Romell Broom will be punished, one way or another.

Romell Broom Must Die

Posted in Uncategorized by Robert Smith on September 16, 2009

In May of 1946,  the state of Louisiana attempted to execute Willie Francis for the murder of  a well-known local businessman. But a strange thing happened after Willie was strapped into the electric chair. It didn’t work right. Willie didn’t die. Willie’s case, Francis v. Resweber,  ended up at the United States Supreme Court, where he lost 5-4. Louisiana promptly strapped Willie back into the electric chair. And that time it did work. This horrifying story has been told many times and in various mediums. I recommend three in particular: Willie Francis Must Die Again (documentary) , The Execution of Willie Francis (book), and, most recently, When Willie Francis Died (link to SSRN Page. This article also discusses the references to Willie’s case made in Baze v. Rees, the recent lethal injection decision).

The electric chair is long gone in Ohio. But that didn’t stop today’s botched execution. Execution team volunteers tried for  two hours to find a vein to carry Ohio’s lethal cocktail into Broom’s body. When they could not, Governor Strickland granted Broom a temporary reprieve (read: one week delay).

And if this case alone is not enough, the problem appears to be important and recurring. CNN Reports:

In May 2006, Ohio officials took nearly 90 minutes to carry out the execution of Joseph Clark because of problems finding a vein. Once they did find one, it collapsed, according to the Toledo Blade. Clark repeatedly shook his head, according to the newspaper, and told officials, “It don’t work.”

A year later, Ohio inmate Christopher Newton’s execution reportedly took two hours after a prison team had trouble finding a vein.

Granted, Willie Francis felt more physical pain than Romell Broom. But it’s been more than six decades since Willie Francis had his day at the Supreme Court. And what common decency and common sense should have told us then is pellucidly clear now: The execution process is emotionally and psychologically devastating—for the defendant, his family and friends, the victim’s family and friends, the guards, the legal teams and even the politicians who must make last minute judgment calls.

Regardless of the degree of mercy that any defendant shows a victim, our system demands that we not carry out cruel and unusual punishment and that we provide due process of law. Whether the Constitution permits Ohio another shot at executing Romell Broom is a question that deserves a hard look. And if the courts won’t look, then I hope Governor Strickland will.

Other coverage: StandDown Texas has this post (which includes Professor Deborah Denno’s take). Sentencing Law and Policy has this post. Capital Defense Weekly here.  Crim Prof blog here.  Crime and Consequences blog has this post, which includes:

I have said from the beginning that the switch to lethal injection was a bad idea. All we needed to do to fix the gas chamber problem was use a different gas.