What Drives a Death Penalty Lawyer? A Conversation With Texas Defense Attorney David Dow

In New York? Come hear Mark Dow in person on Saturday, May 1 at the KtB-sponsored panel discussion “The Prison-Spirituality Complex“!

I think it's a coincidence that my brother David and I have both written about prisons, though our father is a lawyer, and his father was a lawyer. When David was in college, he served on the Harris County Grand Jury, and then he wrote up a detailed critique of the grand jury system, which he sent to various academics and newspapers and which, last summer, I discovered among my own papers. David studied American slavery in graduate school at Yale, where his teachers included Edmund Morgan and David Brion Davis. Then he went to law school there. He has been teaching and practicing law in Houston (where we grew up) for about twenty-five years now. That work includes directing the litigation at the Texas Defender Service and representing death row inmates. In his new memoir, Autobiography of an Execution, he has written about doing that work while being a husband and a father.

The first prison I visited was the State Penitentiary in Parchman, Mississippi. I was writing poems and working temp jobs, having studied poetry at the University of California, Irvine, as part of the mid-'80s wave of the "creative writing" industry. My girlfriend at the time was representing death row inmates at Parchman. I met a prisoner there named Samuel Johnson, and about fifteen years later I wrote about him in a book that David and I co-edited called Machinery of Death: The Reality of America's Death Penalty Regime.

People from big families usually ask about birth order. David is the oldest of us five brothers, and I'm next.

Mark Dow: You're a relatively private person. Why write such a personal book?

David R. Dow: It started as an exercise to try to help me leave frustrations and depression, and maybe even a little anger, on the page, rather than bringing it home with me. Then one day I had collected these pieces of the narrative that eventually turned into the book, and I realized there were some ideas I wanted to express not so much about the death penalty per se, but more about being a death penalty lawyer.

Did you discover anything along the way?

Yes, absolutely. I discovered that putting things on paper did not help me leave them on paper. The exercise of writing things down actually made me feel them more intensely and more deeply, not less. But the writing also helped me see more clearly the way the various pieces of my life fit together. As I was writing, I was re-living, but re-living in slow motion, if that makes any sense.

It does. How does that feeling compared to the feeling of being in your kayak?

If I didn't know better, I would swear you are a whitewater enthusiast. When I used to kayak in what we call big water, you are moving really fast, and you do not have any time to think. You plan your line before you get into the rapid, and then you make instantaneous adjustments. It might take a couple of seconds to paddle through a monstrous rapid. But the sensation of being in the water is of super slow motion. You are aware of everything: every wave curl, where the eddies are, everything. So the answer to your question is that it is very similar. Everything is happening fast, but it seems slow, and if it doesn't seem slow, it means you are panicking, and the last thing you want to be doing, as either a paddler or lawyer, is panic.

What do you enjoy about arguing?

Nothing. I hate everything about it.

I don't believe that.

I do it because of the remote possibility that whomever I am talking to will change her mind, but the rational part of my brain knows that aspiration is a fantasy. I used to enjoy arguing. It was just intellectual jousting. I liked it for the same reason I like wrestling. But I used to delude myself into thinking that it mattered, that people might actually realize you were right about something. The weird thing is I think of myself as open-minded. When I argue with Katya, I might change my mind, or she might. But I think judges, at least in death penalty cases, rarely do. So I hate it, because it is a charade, and a consequential one at that.