The law prizes finality, and a host of doctrines have evolved over time to assure it. We want the litigation of a case or controversy to come to an end. We even tolerate a certain amount of error in order to assure finality.
But isn't death different? Suppose we send an innocent man to death? Can we tolerate that?
Surprisingly, David Dow, a law professor at the University of Houston and sometime litigator on behalf of those sentenced to death, seems willing to tolerate the death of a few innocents. He declares that focusing on the killing of a few innocent defendants is the wrong question. No, what really bothers him is the injustice of it all.
His latest book, "Executed on a Technicality: Lethal Injustice on America's Death Row," (Beacon Press, Boston, 2005), treads familiar water. Errors are made in capital cases. A failure to investigate can deprive a jury of key mitigating evidence. Raise the wrong issue in a state habeas, and lose the right to fight the issue in federal court. The book would be a good first-week assignment in a course of post-conviction relief in capital cases. It is a good and reliable summary of leading cases written in clear lay terms.
Beyond that, there is little to recommend the book.
I've not met Dow, but were my life on the line he would not be part of the defense team I would select. In his view, a defendant is guilty at least 90 percent of the time. The real issue isn't guilt or innocence, but mitigation. He sounds less like a lawyer than a mitigation specialist.
Like so many anti-death penalty crusaders he is in love with nothing so much as the clarity of his own convictions. At some level, he seems to prefer the messianic role of savior of the condemnd to that of advocate for the man presumed innocent.
He is dead on target with his observations about "mob rule," however. We glorify victims and permit them to pollute public prosecutions with private rage and grief. Why? Because it feels good, I suppose. It's good entertainment. Ask Oprah.
I have been involved in only a handful of capital cases, so I lack Professor Dow's experience and his track record. But complaining about the injustice of the criminal process is a little too, well, prissy, for my tastes. Nothing is perfect. Dow's declaration that first this lawyer and then that was incompetent in one caseor another smells a little of the wick. What is it that is said of those who cannot do, i.e., manage a law practice and advocate for clients? They teach.
The best argument against capital punishment is, in my view, its finality and the fact that errors cannot be corrected. But let's face it, there is nothing new under the Sun, or is that now under the needle?, when it comes to the debate about capital punishment.
Read Dow's book. It won't change your mind. But it is concise and generally readable. It will serve as an arrow in your quiver some dark night when all seems lost and you know not where to turn before facing yet another jury ...