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Texas Court of Criminal Appeals soils itself again

The Texas Court of Criminal Appeals soiled itself again after its recent shameful refusal to find Dan and Frances Keller innocent of sexually assaulting children during satanic rituals in their Austin day care center case despite not a shred of physical evidence to support the fantastical false allegations. I wrote about the Keller case here.

This time they suspended David Dow from practicing in their court for a year for missing a deadline that he did not miss. He is the founder of the Texas Innocence Network and the leading death penalty lawyer in the state. Wrongfully convicted innocent clients on death row are depending on him to save their lives. He’s the best shot they have.

Mimi Schwartz of the Texas Monthly describes what happened.

It isn’t easy to get a stay of execution; attorneys have to present the court with a substantial amount of information to win a delay, much less a new trial. For instance, in September 2014 Dow began looking into the case of Miguel Paredes, who was sent to death row for a gang-related killing in 2001. Paredes’s execution date was set for October 28, 2014. In the 39 days before the execution, Dow’s team—which was working on three other death penalty cases at the time—traveled to San Antonio (where Paredes grew up and the crime was committed) and to Livingston (where he was incarcerated in the Polunsky Unit of the Texas Department of Criminal Justice). They searched for additional witnesses. They scoured Paredes’s medical, psychological, school, and prison records. They pored over the trial transcript. In doing so, they uncovered what Paredes’s lawyer had not: evidence that the killing was actually in self-defense. Dow’s team also found that Paredes had a history of mental illness and that the state had put him on powerful psychotropic medication during his trial. The jury hadn’t known any of this, and during the punishment phase, Paredes, drugged and hopeless, instructed his lawyer to waive his right to present mitigating circumstances that might spare his life.

Eleventh-hour appeals—the kind you see in the movies—no longer happen. The CCA needs time to evaluate the record and any new information. Dow filed all of his pleadings in Paredes’s case by 6:30 p.m. on October 21, 2014, in compliance with rule 11-003, which says that pleadings requesting a stay must be filed seven days before an execution date. The judges took exactly two days to deny Dow’s motion. Paredes was put to death, right on schedule.

In November, however, the CCA sent a notice to Dow asking him to appear in court on January 14 to explain why he should not be sanctioned for filing Paredes’s documents late. Dow found this mystifying; he had filed his plea after-hours on October 21, but late filings on death penalty cases are actually fairly routine. There is even a part of the rule that addresses it, which Dow had followed, explaining in his motion that he was still gathering evidence even at that late date to try to save Paredes’s life.

Dow appeared at the hearing without counsel. He explained again why the filing had been late, even though it really hadn’t been. (Instead of relying on the rule itself, the judges seemed to be claiming that Dow had been late according to an example described in the rule, which seemed to suggest that pleadings should be filed eight, not seven, days before.

He has appealed to the Texas Supreme Court. God only knows what that puzzle palace will do.

They don’t like him because he’s smarter than they are and he embarrasses them.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

  • Molly

    Very interesting post, Fred. But I think you left out part of a sentence in the last paragraph, and without it I can’t figure out your final point. Can you fix?

    …should be filed eight, not seven, days before: “For example,ey are [???]

  • Beverly Lawson

    Can you move my comment that went to your other thread? I do not know how that works….Thanks.

  • dubinsky

    ” Dow filed the motion to stay Paredes’ execution Tuesday, Oct. 21, which was technically more than seven days before Paredes’ execution schedules for Tuesday, Oct. 28. But the Texas Court of Criminal Appeals issued a new rule in 2011 suggesting that such a filing would be considered untimely. Under this new rule, a “request for a stay of execution filed at 8 a.m. on a Wednesday morning when the execution is scheduled for the following Wednesday at 6 p.m. is untimely.” Since Dow submitted his motion at 12:37 p.m., this was considered a late filing.”

    http://www.abajournal.com/news/article/capital_defense_lawyer_suspended_for_late_filing

    —————-

    the Court had warned Dow ….. in writing, of course,,,,,,,,,about what the Court considered an untimely filing during 2010……see link below

    http://law.justia.com/cases/texas/court-of-criminal-appeals/2010/19770.html

  • dick_c

    Beverly, I believe you’re the only one with access to do that. I don’t think you can move a comment, but deleting it and posting it again where you want it amount to the same thing.

    When I hover over a comment I’ve made a small triangle/arrow appears in the top right corner. Clicking on that gives me the option to delete the comment.

  • http://www.hisnameistimmy.com Tim in SF

    Second to last paragraph:

    “For example,ey are

    I don’t know what that is, but it’s not English. It just cuts off there.

  • Rachel

    Thank you Molly. I just now saw the need for editing at the end of this post. I immediately told Fred- he will fix it and attach an “errata” statement. Hoping he can do this sometime this morning. He is sick with the bronchitis that I had,- but he is aware and will make changes when he is more able to get up.

    Thanks so much.

  • Beverly Lawson

    Thank you…Guess I will just let it be…Mostly it was about what a good lawyer Mr. Dow is…works so hard on dp cases & is a great & generous mentor for less experienced lawyers

  • disqus_tu7SEHpgGp

    Sorry, the Texas judicial system is pretty corrupt, rulings seem to always favor the corporation or rich kid.

    You will not find me protesting Texas succeeding from the Union.

  • Strawman

    According to all evidence I have seen over the years, Texas courts and prosecutors take as an overarching guiding principle Justice Scalia’s admonition that: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”

    If true, how could anyone expect anything like “fairness” from any of them.

  • Frederick Leatherman

    EZ for you to say. You don’t live here.

  • Frederick Leatherman

    Sorry, I was sick with flu and running a high fever when I wrote this article. I’ve since corrected the error.

  • Frederick Leatherman

    I still think it’s bullshit.

  • dubinsky

    and I agree with that, Fred, but it ain’t as if they just sprung it on him…….it was bullshh1t that both sides chose to fling at each other…..and the Court had a bigger pile and threw their pile harder.