The Death Penalty From A Lawyer's Perspective


Posted on : 4/09/2011 04:40:00 PM | By : Dann | In : , ,

David Dow is a law professor.  He is also a lawyer that devotes most of his non-teaching time to defending death row inmates.  Terry Gross' interview of Mr. Dow was recently replayed on NPR.  The page on NPR's site includes a brief passage from his book "The Autobiography Of An Execution".

The audio should be up in the evening of April 8, 2011.  I have no idea when this post will be published at this point.

At one point, Ms. Gross demonstrates why I dislike her show.  Rather than asking Mr. Dow what sort of people he imagined meeting on death row and how did reality square with his preconceptions, she fills in the blanks so that the only thing he has left to say is "yes".  I was really more interested in hearing his thoughts rather than having her spoon feed him during the interview.

An anachronism reared its' ugly head while reading the excerpt from his book.  He writes:

Maybe, I said, we had called something by the wrong name. You might think that when a life is at stake, formal legal rules would not matter so much, but you would be wrong. People die when their lawyers neglect to dot the i's or cross the t's. I decided we would refile what we had already filed, and just call it something different. Because I couldn't think of any other explanation, I convinced myself the problem was with the title. Necessity's eldest child is invention; her second-born is rationalization. Gary's the fastest typist. I asked him to get started working on it.

Yet during the interview, he revealed how judges become sloppy in their execution of the law when it comes to the prosecution of irredeemable defendants.  He perceives that those judges decide that issues regarding the administration of our laws (i.e. evidentiary rules, due process, etc.) simply matter less when someone who is clearly a person of malintent stands before them in court.

Considering that a life hangs in the balance, shouldn't our courts ensure that every lawyer is dotting all the i's and crossing all the t's?  Not just the lawyers for the defendant?  For the one act of punishment that cannot be undone, shouldn't our courts be particularly cautious instead of being more cavalier?

Not unlike other issues, I am conflicted when it comes to the death penalty.  There are some murders where we know that the accused is truly guilty.  In many of those cases, it seems to me that taking the life of the murderer is a just and appropriate punishment.

At the same time, it seems to me that we have too low a standard for prosecutorial conduct when it comes to pursuing the death penalty.  And apparently we have too low of a standard for judicial conduct in such cases as well.  Perhaps their lives should hang in the balance as well.

I do not want to preclude the imposition of justice on the truly worthy.  The death of Timothy McVeigh comes quickly to mind when thinking of the truly worthy.  At the same time, I do not want to see the innocent die, nor do I want to see mitigating circumstances, evidentiary rules, and rules of judicial conduct ignored in a head long rush towards the unjust imposition of capital punishment.

The interview with Mr. Dow is indeed enlightening and interesting.  I hope you will enjoy listening to it.

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