David Dow has near-legendary status among death penalty attorneys in Texas. He works pro bono for clients whose lives literally depend on him; he takes their cases after they arrive on death row, often seeking to right the wrongs committed by their trial lawyers. Because the Court of Criminal Appeals, the highest appellate court for criminal cases in Texas, has exclusive jurisdiction over appeals filed by capital-sentenced defendants, that is the court Dow usually appears before.

But the Court doesn’t appreciate Dow, whose strong advocacy for death row prisoners is seen as disruptive or an attack on the criminal justice system itself. Dow, who founded the Texas Innocence Network and has represented over 100 prisoners sentenced to death, wouldn’t have it any other way.

However, being disfavored by the Court of Criminal Appeals comes with a price. On January 14, 2015, Dow was found in contempt and suspended from practicing before the Court for one year because he had filed a motion a day late. See: In re Dow, 2015 Tex. Crim. App. Unpub. LEXIS 149 (Tex. Crim. App. 2015), rehearing denied.

That harsh sanction was all the more egregious given the appellate court’s history of not disciplining other attorneys who were asleep, drunk or otherwise incompetent during criminal trials.

“There is no question that the punishment imposed on David Dow by the [Court] was unprecedented, disproportionate and excessive,” said Laura Arnold, co-chair of the Laura and John Arnold Foundation and former member of the national board of directors for the Innocence Project. “There is strong reason to believe that the magnitude of Dow’s sanction was rooted in nothing more than sheer political retribution.”

Dow had been warned previously, in 2010, that late filings may result in his suspension. With respect to the allegation that the Court’s harsh discipline was political in nature, he had previously had a conflict with Court of Criminal Appeals Judge Sharon Keller, who refused to accept a capital punishment appeal filed by Dow’s office 15 minutes past the court’s 5:00 p.m. closing time. His office had experienced a problem with its computer system, and the attorney requested a few extra minutes so the filing could be hand-delivered. Keller’s response to that request was “we close at five.” As a result, the appeal was not filed and death row prisoner Michael W. Richard was executed that evening, on September 25, 2007.

Dow’s complaints against Judge Keller stemming from that incident resulted in an ethics investigation and reprimand against Keller that was later overturned by a special court of review. [See: PLN, Jan. 2014, p.38; Sept. 2010, p.20; Aug. 2009, p.34]. Keller was the presiding judge at Dow’s January 2015 suspension hearing.

On March 18, 2015, around 300 Texas attorneys filed a petition with the Texas Supreme Court seeking a declaratory judgment, or writ of mandamus, overturning Dow’s suspension. The petition noted that the trial defense attorney in the case Dow had been handling failed to disclose mitigating evidence, tell the jury his client was mentally ill or call even a single witness during the punishment phase. But for those egregious errors, Dow would not have had to step in at the last minute and file a motion seeking to stay the execution. Essentially, it argued that Dow had been suspended for doing what the trial attorney should have done in the first place.

The petition also argued that the Texas Supreme Court has the exclusive authority to regulate the practice of law, and the Court of Criminal Appeals overstepped its authority and denied Dow due process when it suspended him absent malpractice, dishonorable conduct or fraud. It contended that the one-year suspension was purely punitive and should be set aside. The petition also argued that the Court’s deadline was not clear; the procedural rules state that seven days are allowed for filing certain motions in death penalty cases, yet an example following the rule indicated that filings could be submitted within eight days.

Miguel Angel Paredes, the death row prisoner in whose case Dow had filed the offending late motion – resulting in his suspension – was executed on October 28, 2014.

The petition in support of Dow further noted that harshly sanctioning a death penalty attorney for a minor infraction could have a chilling effect on other defense counsel: “The [Court of Criminal Appeals’] extraordinary construction of this rule, and decision that the penalty for the filing would be a one-year suspension will undoubtedly cause other attorneys in Dow’s position to decide not to file documents for inmates facing execution.... As a result, people may die, some of them innocent, with valid claims their court-appointed and publicly-paid lawyers failed to develop out of fear of sanction by the [Court].”

On June 26, 2015, the Texas Supreme Court issued a per curiam ruling in which it held it had no authority to intervene in, or overturn, the disciplinary action taken against Dow.

“The Court of Criminal Appeals has not undertaken to determine what lawyers may practice before it,” the Supreme Court wrote, addressing the argument that the appellate court had overstepped its bounds in regulating the practice of law in Texas. “Rather, it has imposed a sanction for the violation of a rule that provides for such a sanction. This in no way threatens our authority to regulate the Texas bar.” See: In re Dow, 481 S.W.3d 215 (Tex. 2015).

In its decision, the Texas Supreme Court affirmed Dow’s ability to represent his current clients before the Court of Criminal Appeals, though he would not be able to take on new clients through the duration of the suspension.

A November 2015 article by law student William DuBose, published on Dailykos.com, summed up the popular perception of the discipline imposed by the Court of Criminal Appeals: “More than just exercising a personal vendetta against Dow, the [Court] was sending a message that zealous death penalty lawyering is punishable by sanction. Those who are willing to challenge the court and consistently fight to the death for clients are treated with contempt.”

Sources: www.slate.com, www.texasmonthly.com, www.dailykos.com, www.texastribune.org, www.mystatesman.com

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