Sunday, March 29, 2015

No need to pick a side when everybody's wrong

Grits finds it ironic that David Dow, a Houston appellate lawyer specializing in death penalty work, is claiming the Court of Criminal Appeals issued an illegal sanction against him by suspending his practice before the court for a year. Quite humorously, to me anyway, he's in essence making the same argument Sharon Keller did when the State Commission on Judicial Conduct issued her an illegal "warning" instead of a "censure." Here's Dow's main argument, as reported by the Texas Tribune:
"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.

"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.
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?

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.

16 comments:

Anonymous said...

One thing people seem to forget about the "we close at 5" incident is that both the U.S. Court of Appeals for the Fifth Circuit and the U.S. Supreme Court denied Dow's stay of execution that night.

How likely would it have been for the Tx CCA to grant a stay based on arguments rejected by the 5th Circuit and SCOTUS? Completely unlikely. The attitude shown by the "we close at 5" comment was revolting but it did not prevent a stay of execution... that just wasn't going to happen.

Anonymous said...

It bears noting that David Dow does not seem to have had a single significant victory in any case - certainly, other attorneys have been behind all the ground-breaking legal decisions concerning TX death penalty cases coming out of the U.S. Supreme Court. And am I the only one wondering how he can represent all those death row inmates, teach at U of H and publish a couple of books in recent years?

Anonymous said...

Grits you are partially wrong as well. Please don't become one of the Tabloid headline guys that the bark of the headline is barking up the wrong tree. In civil and criminal trials their are 2 parts. For civil cases there is liability and damages. For criminal cases there is guilt innocence. Stanley is talking about the Courts ability to assess a sanction (damages) vs. their ability to punish lawyers by not allowing them to practice before the Court. That is what the one Dissenter Alcala said in a sense as well. Stanley's argument was assuming that if the Court found "... 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," Quoting Grits quoting the petition. So it is the damages or punishment phase they are discussing. You point is taken about filing briefs on time but it does not directly relate to the point. Further you don't cite any authority for Dow's punishment as Stanley says is lacking. If you are going to say someone is wrong about their point that their is a lack of authority to do anything beyond sanction and not removal from the Court, which is reserved for the State Bar to determine, then please cite that authority and don't just say file your brief's on time.

Soronel Haetir said...

I know that Texas has a somewhat odd high court, what with it being split into civil and criminal sides but it would seem even more odd to me that a state's highest court would not be invested with the sort of disciplinary power at issue here.

Anonymous said...

To me it is simple. There is no excuse for not getting those briefs in on time. They teach you that in your first year of law school. If you were even ten seconds late at Georgetown, you failed legal writing. And they made sure we understood why the harsh punishment. Late filing = rejection by court = malpractice.

Joshua Cottle said...
This comment has been removed by the author.
Joshua Cottle said...

had a typo in previous -

Have any of you negative Nancies actually read the rule w/related comment he supposedly broke?

Grits, you take the peculiar position that he is wrong, period, despite the obvious literal issue at hand here - a bad example for an otherwise clearly written scheduling rule. Why so absolute?

Joshua Cottle said...

This is the Rule. http://www.txcourts.gov/media/208124/miscruleexecution.pdf

The Rule says, you have 7 days before execution (and excluding date of execution as a day in that number), and then says as an example, you actually don't! How can the Court "exclude" the date of execution and then use in its example the date of execution? It's illiterate, and the Court knows it, and Dow presses on this issue either intentionally or due to the nature of how he receives these types of 11th hour appellate requests. You might nod your head sagely and say, "Oh but the practitioners KNOW the 'real rule' is such and such, even if the 'written rule' is so and so." In that case, you might ask, do we submit ourselves to a justice of practitioner mysticism or to clear language? In a conflict of language, when has there ever been a statutory / rule construction that emphasizes example over the rule? Perhaps the drafters of that Rule, in their haste to amend the 48-hour rule it used to be, forgot how to calculate time.

Dow takes on appeals based on incompetent counsel (notoriously, drunkards and narcoleptics), and usually at the 11th hour, pro bono. I wonder if Anon at 08:38 AM thinks it bears noting the conditions under which Dow seems to receive assignments - how / why they come to him under such conditions, I don't know.

Anonymous said...

How is it that the Office of Capital Writs and others who do the same kind of work in impossible conditions get their briefs in at a high level of quality and no question about their timeliness? Yes, Mr. Dow represents people in the hardest of cases. And for that he should be commended. But so do many others who don't seem to have the same timeliness problem.

Anonymous said...

Dow is late on purpose. It is a strategy. If the CCA can't start their work until 5pm then the 5th won't get it until 7pm and the Supremes won't get it until 9pm EASTERN because of the time zone and there is a chance this will get him a 30-day stay because of the time instead of on the merits.

Will Yablome said...

Just another pedantic law school professor demonstrating his inability to practice law in the real world.

Anonymous said...

Quoting Joshua Cottle "Dow takes on appeals based on incompetent counsel (notoriously, drunkards and narcoleptics), and usually at the 11th hour, pro bono."
Except in this case counsel for deceased inmate was anything but what Cottle claims. He was a well known lawyer who consistently gets excellent results for his clients at trial, on appeal and in writs (far better than Dow). Nevertheless, Dow threw him under the bus to save himself. Now that was offensive

Anonymous said...

3/29/2015 07:45:00 PM reply - but the CCA DID grant stays in all other capital cases until the S.Ct. ruled on that issue regarding lethal injection.

3/30/2015 12:04:00 PM - the "lateness" of the brief is questionable at best (considering the plain language of the 'rule.' Further - this is NOT jurisdictional thus the CCA could and did accept the late filing.

3/30/2015 01:54:00 PM - The Office of Capital Writs handles 11.071 writs. Once a defendant is in federal court under a 2254, the rules change significantly. And OCW hasn't handled an 11.071 §5 successive writ that I know of.

3/30/2015 03:39:00 PM - As Justice Alcala explained in her dissent - the timing of the filing of his brief DID NOT impact the CCA at all. They had sufficient time to consider it and rule upon it.

3/30/2015 06:54:00 PM - except he gives hope to defendants that other attorneys have abandoned. He provides a safeguard we should be grateful for.

Grits - I am disappointed in you. Even when PJ Keller failed to properly file her campaign financial documents - she was only fined $25,000 .. not precluded from practice. The punishment is beyond the scope of the CCA's purview. The precedent is that any court can hold an attorney in contempt and preclude them from practicing before them without going before the State Bar's Office of Disciplinary Counsel. The CCA should have filed a grievance with the State Bar through the appropriate channels. Regardless whether you think Professor Dow was "late," - The CCA's punishment is outlandish and violative of due process.

Joshua Cottle said...

Even if all the above statements, Anon at 10:34 AM and 3:30 PM, are true, re: he threw a good lawyer under the bus / is late on purpose, that doesn't address the plain issue raised by a Rule that can't even give an example to illustrate it properly. If Dow is not a poster child for this writ of mandamus, the Rule is hardly a poster child for literacy or clarity of law.

Anonymous said...

A complete transcript of the hearing is available at the Supreme Court of Texas website as an exhibit to support the petition.
Telling for me are the questions and answers. Dow DID throw a good attorney under the bus, but that is not at all lost on the Court. It took Dow "a couple of months" from the time he was contacted by the death sentenced to the time he actually made contact with the death sentenced attorney.
In doing so he waited until a mere 39 days before execution to take on the filing, and actually OFFERED to take on the filing as he was filing in the 5th. Dow then goes on to complain he didn't have enough time to get the writ in per the rules of the Court.
Ridiculous.

Anonymous said...

Considering all comments above about Dow and the CCA, it appears that Grits was correct ... "No need to pick a side when everybody's wrong."