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'EXECUTED ON A TECHNICALITY' Lawyer works to save Texans from death



Published: Sat, June 4, 2005 @ 12:00 a.m.



The title is unfortunately unexciting.

By DIANE JENNINGS

THE DALLAS MORNING NEWS

"Executed on a Technicality: Lethal Injustice on America's Death Row" by David R. Dow; Beacon Press ($24.95)

Texas' death row is one of the most mundane, mind-numbing yet terrifying places on Earth.

But each day, tiny life-or-death dramas are played out involving death row, often in law offices, where defense attorneys plow through mountains of paperwork searching desperately for an argument that will save their clients' lives.

For David R. Dow, this drama is always at the forefront. Dow, who teaches at the University of Houston law school, has shepherded death row inmates through the fight for their lives for more than 15 years. His latest book, "Executed on a Technicality: Lethal Injustice on America's Death Row," tries to take the reader on that emotional roller coaster.

A complex issue

Sometimes the book succeeds, with small details that bring death row into sharp focus, such as the fact that since contact visits are not permitted, Dow "shakes hands" with his clients by placing his hand on the glass barrier in the visiting cubicle.

But sometimes the book, like death row, grows tedious because of detailed legal wrangling that only a lawyer could love.

Readers may be tempted to quit the book at those points, but they shouldn't. Dow goes on to write not only about some compelling cases, but also to pose philosophical questions that make for rigorous mental wrestling, the kind of wrestling both death penalty supporters and opponents should be doing in the nation's execution capital.

Dow states early on that he started out as a supporter, albeit a lukewarm one, of capital punishment. He writes that he was a supporter because, like most people, he simply never gave it much thought. When he did, he considered the bare bones of the issue: A bad person committed a heinous act and got what he deserved.

But after Dow began representing death row inmates, he realized the issue was more complex. Eventually he became an ardent opponent of capital punishment.

Stories that resonate

"Executed on a Technicality" (an unfortunately unexciting title) does not dwell as much on Dow's personal journey as it does on some of the cases that changed his mind. One case that should resonate with readers is that of Johnny Joe Martinez, who was executed in 2002 for the murder of 20-year-old Clay Peterson, a convenience store clerk, nine years before.

The Martinez case stands out because it illustrates that the death penalty is not confined to the worst of the worst, as people assume. Martinez's cold-blooded stabbing of Peterson, captured in all its horror on videotape, was indeed heinous. But compared to serial killer Gary Ridgway, the Green River Killer, who confessed to 48 killings and avoided the death penalty, Martinez is a pallid figure indeed.

Martinez had one victim and no previous history of violence or crime. He stabbed Peterson after a night of drinking, during a robbery. Then he called the police, tearfully told them what he'd done and waited to be picked up.

He was found guilty, but prosecutors did not present any evidence to persuade the jury that he was a danger to society and needed to die. Unfortunately, Martinez's lawyers mounted only a minimal defense and the jury sentenced him to death anyway.

By the time Dow took the case, many of Martinez's legal options were exhausted. Dow tried to save him, and with the help of a letter from the victim's mother asking the Board of Pardons and Paroles to commute the sentence to life. In an almost unheard of move, the board voted 9-8 to deny clemency.

"I would have preferred to have a vote of 17 to nothing," Dow writes. "It would have meant there was nothing more I could do. A vote of 9 to 8 meant that maybe I should have spent one more hour, two more hours, another day, on the clemency petition. Maybe that was all I needed to do to change one more mind and save a life. For Martinez though, the vote was good. It meant that people besides his family and his lawyer and the mother of his victim knew he ought to live."

A human being

Making readers see people like Martinez as human is Dow's primary focus. He acknowledges that most death row inmates are guilty. And he knows many of them are not particularly likable people.

But they're not "murderous machines," he writes.

"They are frequently functionally illiterate and often inarticulate. They could not express themselves with eloquence even if they had a forum. These inmates do not have the power or the skills to thrust their humanity before our very eyes and to make us see them as human beings."

He says he understands death penalty supporters who believe death row inmates should die because their victims suffered. At one time, "that was my view as well," he writes.

"All I knew was their names and the worst things they had done. That is why I was not against the death penalty; these inmates were simply murderers not people. Now I know my clients. ... Death penalty lawyers like me are against the death penalty for the same reason you would be against the execution of your son, your father or your brother, even if your son or your father or your brother had committed an atrocious crime: because you know that person is a human being."

Such passionate pleas make Dow's book worth reading, despite the occasional difficult legal morass the reader must wade through. Reading this book brings death row home to people who otherwise will never know it. Reading it may not change anyone's opinion as Dow hopes, but it may make people think about it.




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