Lawyer's One-Year Banishment Leads to Showdown

When the Texas Court of Criminal Appeals banished a prominent death row attorney this year, it set in motion an interesting showdown not only with the lawyer, David Dow, but one with its own glossier sibling, the Texas Supreme Court.

Attorney David Dow.

When the Texas Court of Criminal Appeals banned a prominent death penalty attorney for one year, it set in motion an interesting showdown not only with the lawyer, David Dow, but also with the state's highest civil court. Dow has asked the Texas Supreme Court to intervene in the ruling of the CCA, which is the state's highest criminal court and ordinarily the Supreme Court's equal.

In January, the CCA found Dow in contempt, when he was a day late with an appeal to stop the execution of Miguel Angel Paredes last year. Dow had been warned he could be suspended after missing another deadline with the appeals court in 2010 and the judges were making good on their threat.

"I'm reminded of something from James Bond," one judge told Dow, according to a transcript of the Jan. 14 hearing. "First time is happenstance. The second time is coincidence. The third time is action."

That same day, the judges issued their 8-1 order finding Dow in contempt and banned him from appearing before the court for a year — an unheard of suspension.  

"Having previously admonished respondent Dow that a future violation could result in a suspension from practicing before this Court, this Court now suspends respondent Dow from practicing before this Court for a period of one year," the court's order stated. 

Judge Elsa Alcala dissented, recommending a fine instead. Dow filed a motion to have his case reheard; the CCA denied that on a 5-4 vote.

But the case could draw out the Texas Supreme Court to take action. Dow, through his attorney Stanley Schneider, has asked the Supreme Court to intervene.

"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," 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.

The jurisdictional lines between the two high courts in Texas has lawyers across the state, like Patrick S. Metze, professor of law at Texas Tech University School of Law, straining to recall another time where the Texas Supreme Court may have to take action on a Court of Criminal Appeals ruling.

"Nothing comes to my mind," Metze said. "But this has to do with the discipline of lawyers and the Supreme Court that ultimately disciplines lawyers.

This latest incident with Dow is his third strike with the Court of Criminal Appeals. Before the missed deadlines of this year and 2010, there was an infamous one in 2007, when Dow and his legal team rushed to get an appeal before the court for his client, convicted killer Michael Richard.

In that case, Dow's team contacted the CCA, told staff their computers had crashed and asked for the court to remain open 20 minutes past closing time to allow them to file Richard's appeal. But Sharon Keller, then and now the court's presiding judge, informed Dow: "We close at 5." A few hours later, Richard was executed.  The incident prompted an investigation into Keller's action. The special master in the case, state District Judge David Berchelmann Jr. of Bexar County, found that it was Dow who was at fault — not Keller. 

That incident began an uneasy history between the state's court of last resort for condemned prisoners and Dow, a University of Houston Law Center professor who for years has taken on the cases of capital murder convicts at no charge.

"There's a history here between them and I'm sure that's what it's about. Part of that history is flaring up again," Metze said. "I was surprised it (the ban) happened, but on second thought, I wasn't surprised."

Dow's ban has struck a nerve with criminal defense attorneys. More than 300 have notified the Supreme Court they support his petition requesting the high court to step in.

A friend of the court brief filed by the Texas Criminal Defense Lawyer's Association calls the CCA ruling "particularly egregious."

"Mr. Dow is an asset to the criminal justice system, as he has gone above and beyond the call of duty. He should be applauded and saluted, not suspended," the TCDLA's brief states.  

Like most legal rulings, the contempt order against Dow comes with caveats.

Dow, who declined to talk about the suspension, can ask the CCA to appear before them on behalf of clients he was representing before the ban went into effect, his attorney confirmed. Among those clients is Robert Pruett, who is scheduled to be executed on April 28. So far the CCA has not ruled on those kinds appearances by Dow.

Meanwhile, the one-year suspension has enormous repercussions for Dow, who has to report the suspension to other courts, which can then decide to honor the ban themselves.

Dow notified the Texas Supreme Court as part of his request that the federal courts in the Southern District of Texas have let him know they will honor the CCA's ban. But on Friday, Dow's attorney said he had been notified that the courts in that federal district have rescinded the suspension. 

Signs of solidarity continue to mount at the Texas Supreme Court. One of the latest came from John Raley, a Houston attorney.  

"I've only met David once. I've watched him from afar.  I think he is a hero," said Raley, who was the lead defense attorney for exonerated Texas inmate Michael Morton. "He represents people who have no where else to turn."

Reference
  • TCDLA Amicus In Support of David Dow
Reference
  • John Raley Letter In Support of David Dow
Reference
  • CCA's Contempt Order For Dow