Civil Liberties

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

Mark Dow writes on the criminal justice system. David Dow tries to save his clients from execution. The two discuss the death penalty, kayaking, and the concept of evil.

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.

I wasn't actually thinking about legal arguments when I asked that. I was trying to ask what you enjoy about arguing in general.

Ah, arguing in general. It's the talmudic tradition, right? Or the Socratic method, if you prefer a secular analogy. Arguing focuses the mind. Some people meditate to try to dig down to the truth. That has never worked for me. I prefer a more violent encounter. You struggle with everything until something strikes you as true and correct. I like arguing because the exercise reveals truth.

Of course, you have to be honest, or it doesn't work. Which really is the gripe I have with legal arguments.

In an essay about movies and the death penalty, you wrote that "the truth as it actually is is too complex or disturbing to confront honestly." One of the films you praise -- speaking of slow motion -- is Errol Morris'sThe Thin Blue Line.

I think the repeating of the milkshake motif is brilliant, but lost on anyone who has not been in a traumatic circumstance.

Yes, I always mention those slow-motion sequences when I tell people about getting mugged in Miami. I liked his early films a lot, and I haven't seen the Abu Ghraib film, but through Mr. Death and The Fog of War, I think Morris has gotten more and more lost as his films get slicker.

What do you mean by slicker? And by lost?

In Mr. Death, the self-consciousness of framing and angles -- Morris's "take" on Leuchter, his need to showcase his own technical prowess, whatever the subject matter -- all this continually and heavy-handedly suggests the "enigma" of Fred Leuchter, when it's his ordinariness that's the enigma. [Note: Leuchter designed execution equipment for U.S. prisons.] Morris defended his MacNamara film by appealing to the complexity of life. He doesn't seem to realize that his special effects and montages in that film are pure melodrama. When I watched The Thin Blue Line again a couple of years ago, I realized it's already there. It's a kind of highbrow melodrama, I think -- which explains the Philip Glass scores. A filmmaker who actually makes room for complexity is Frederick Wiseman, and it's revealing to see how shallow Morris's view of Wiseman is -- and he clearly admires Wiseman. I thought he might actually be making some sophisticated joke by pretending to be so reductive about Wiseman -- he calls Wiseman's films "bitter and funny." I'm still not sure.

Anyway, speaking of Fred Leuchter, since Machinery of Death, the one thing we disagree about when it comes to the death penalty is "evil," a term you insist on using. You're so strongly anti-religion; why rely on a theological term?

I'm not committed to the word "evil." I'd be almost as happy with "bad." There are bad people.

That said, I think I prefer "evil" because it evokes an idea I do believe, which is that there are some people -- I'm not saying there are many, but some -- who are unfixable. They are so deeply broken, they cannot be allowed to live in society. You can call them psychopaths if you prefer a secular term. They lack something important.

You say I "insist" on using the word. I think you are probably right to perceive that. I insist on it because I think the engine that drives most death-penalty supporters is that they believe there are such people. I do disagree about how many of them there are, but not about whether such human beings do in fact exist. So I think I use the term to try to convey that I disagree with death-penalty supporters not because I have the view that everyone is fundamentally good, or even salvageable, but just because I think it is wrong to kill, even when we are facing someone who is broken beyond repair.

Why do first principles, if that's the proper term, matter so much to you? The philosophical answer is easy; is there a personal answer?

Is the philosophical answer too easy? Amartya Sen has a new book where he argues that first principles are distracting in moral discourse because they ignore the world in which we actually live. (I am paraphrasing grossly here; his argument is subtle and sophisticated.) But for the moment, I'll concede your premise and tell you the answer: I have no idea. I think you are asking me about why I believe what I believe, or why I have the values I have. I could point to a lot of different facts about myself: my family, my schooling, the books I've read, my DNA. But would those add up to an answer?

You are asking the questions, I realize, but what I really want to say is that it's not so much that they matter to me personally. It's more that I believe they are the foundation of our society. We've constructed this society where they matter. I happen to like the society and want to remain in it, and to help preserve it. When I saw the pictures of Abu Ghraib, I was physically ill -- not because I had any sympathy for people who would walk into a market and blow themselves up. It's that I felt like we were undermining our way of life.

Actually I wasn't asking why you believe what you believe. I was asking why you think the way you think. Or more specifically, why it matters to you to be rigorous in your thinking, as my former teacher Hal Sheets would put it. The question occurred to me when I heard your radio interview with Dennis Prager. The biggest difference between the two of you (even though he's in favor of the death penalty) was that he didn't seem to care about being philosophically consistent, and you care a lot about that. But is this equally unanswerable?

I don't think that's unanswerable. My answer is that being philosophically consistent shows a commitment to truth. You subscribe to an idea, and then you follow it to where it leads, and if you don't like where it leads, well, you have to reevaluate your commitment to the idea. But you can't have it both ways.

What I thought about Prager -- who, I thought, was very respectful and decent during our conversation -- was precisely that he wanted to have it both ways. He wanted to say that people who kill do not deserve to live, and that the state should therefore kill them. But he also wanted to say that if his own son committed murder, that his son should not be executed. I think if you are committed to consistency -- to truth -- then you need to think hard about how your belief that your own son should not be executed undermines your stated belief that the state should execute murderers, rather than trying to square those two ideas.

You took a class at Bellaire High School called Declamation, I think, and memorized the abolitionist John Brown's final words to the jury.

You know what John Brown told his kids before he was hanged? He told them to hate well. I obviously do not know exactly what he meant, but I like to think he was teaching them that they shouldn't be indifferent to evil. I think he believed in evil, too.

My friend Stephen Harper -- an attorney who was crucial in the Simmons case -- once said that death penalty lawyers are saints and voyeurs at the same time.

I don't think that death penalty lawyers are saints. As much as I oppose capital punishment, I don't think opposing it, no matter how actively, qualifies one for sainthood.

As for the other noun, I'd have to agree. I do not think most death penalty lawyers are drawn to the work so they can be close to death and dysfunction, but that is certainly a consequence of the work, and it is energizing, in a way I am almost embarrassed to admit. For example, a week or so ago a lawyer in my office and I were celebrating because she had managed to get the brother of one of our clients to cryingly acknowledge that he had been sodomized routinely by his father, and that our client was as well. On the one hand, you feel like you want to vomit and just give up on humanity, and on the other hand, you feel like you want to celebrate, because we've learned something that might save our client's life. Mayhem and abuse are satisfying, because it helps you win. It's sick, I guess, and maybe a little voyeuristic.

I'm not sure that qualifies as voyeurism. But it does seem like another example of how the whole system of legal killing degrades everyone who is touched by it.

I think you are right. It isn't voyeurism at all. There is certainly not any sexual gratification involved, and there really isn't any pleasure that comes from gaining familiarity with the sordid and appalling conduct we come in contact with. I suppose it's really a matter of irony: that when we are trying to save someone's life, identifying despicable acts of parental brutality puts arrows in our quiver.

Can I add something else? To add yet another layer of irony to this, our clients often manage to harbor profoundly deep connections with their parental abusers. I am tempted to call it love. Last week a lawyer in my office went to the prison to tell one of our clients that his mom had died. Now his mom, mind you, was a despicable parent. The state should have taken away her kids as soon as she gave birth to them. She literally tortured my client. Yet when we told him she had died, he was utterly disconsolate.


What was the hardest thing about writing the book?

The hardest thing about writing the book was the actual writing of it. I don't mean that to sound flip. I wanted to tell the story in a way that would not get bogged down in the procedural aspects of the case. I wanted it to have some pace, so to speak. I had not written anything before with that objective, nor did I have any experience writing in a non-academic voice. So the hardest thing was writing it. The second hardest was re-living every episode I write about. And re-living them again every time I went through the manuscript to edit, which I did a lot.

How long do you think you'll continue being a death penalty lawyer?

Until either I die or we don't have the death penalty, whichever comes first. I am hoping for option b.