Texas Court of Criminal Appeals soils itself again

May 25, 2015

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: “For example, 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.”)

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

 


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