"Even if a claim could be made that Dow's actions had interfered with the CCA's core functions, the CCA, in suspending Dow, acted without authority," Dow's petition states.So the court could jail him for contempt, levy significant fines, or try to get him disbarred, the argument goes, but they can't impose what amounts to a professional time out?
"There is no rule that allows a judge or a court to bar a lawyer who is licensed by the Supreme Court of Texas to practice law and appear before them," [Dow's attorney Stanley] Schneider said later.
Admonishments and fines, yes, he said. Bans, no.
"They can refer him to the chief disciplinary council of the State Bar of Texas," Schneider said. "They can hold them in contempt or fine him."
But, he said, they can't ban him.
That stance reminds me of nothing in the world more than the argument made by Dow's nemesis, Court of Criminal Appeals Presiding Judge Sharon Keller, when her attorney argued to the State Commission on Judicial Conduct that the wrist slap issued to her by the commission was illegal because it was improperly lenient. They'd given her a "public warning" instead of subjecting her to "censure," which would have forbade her from sitting as a visiting judge after leaving office. In the aftermath, voters approved what the Dallas News called the “Texas Court of Criminal Appeals Presiding Judge Sharon Keller Disciplinary Case Memorial Amendment” authorizing a broader array of potential punishments.
A lot of death penalty abolitionists appear to conflate Dow the man with abolitionism itself and have rushed to his defense, viewing an attack on him as an attack on their group as a class. Myself, I see the sanction as an attack on attorneys who persistently can't get their briefs in on time -- three times in this instance.
Any three-time offender may be a candidate for some sort of sanction, but perhaps the harsh nature of this particular penalty may be explained by the fact that Dow's tardiness seems to chiefly occur when he's required to file last-minute briefs on execution day, wasting away valuable minutes the court could be deliberating while his clients are being prepped for the death chamber. Add in the reality that, in the most infamous case, he famously indulged in demagoguery after the fact to blame Judge Keller for his dilatory habits, and Grits finds himself sympathetic with the CCA majority on this one.
Do I think a lot of this is personal between Sharon Keller and David Dow? You bet. Was Sharon Keller in the wrong in the "We close at 5" debacle? Absolutely. The State Commission on Judicial Conduct said so and I agree. But that doesn't absolve Dow of a duty to file his damn briefs on time. Dow doesn't have any personal beef with Bert Richardson or Kevin Yeary, or for that matter with Judge Cheryl Johnson, who went to battle with Keller over her judicial overreach after the "We close at 5" mess but also voted with the majority to suspend Dow for a year. The Keller-Dow personality clash doesn't fully explain what's going on here.
As Grits sees it, this isn't about picking sides between David Dow and Sharon Keller. They can both be wrong.