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20 Years Of Defending Death Row Inmates

TERRY GROSS, host:

This is FRESH AIR. I'm Terry Gross.

My guest, David Dow, has represented more than 100 death row inmates, mostly in
Texas, over the last 20 years. Most of his clients were guilty, and he knew it.
Some of them were guilty of monstrous crimes, and he's won only a few cases.

We're going to talk about why, in spite of all that, he continues to represent
men on death row and what impact this work has on his life and on his family.

Dow has written a new memoir called "The Autobiography of an Execution." He's a
distinguished professor at the University of Houston Law Center and the
litigation director of the Texas Defender Service, a nonprofit, legal-aid
corporation that represents death row inmates.

David Dow, welcome to FRESH AIR. Your book is a memoir, and one of the things
that you write about is the difficulty of making the transition back and forth
between working on death row and coming home and trying to be in the world
inhabited by your young son and having your son say things to you like: Hi,
dad, did you have a good day on death row? Tell us a little bit about what
those problems are going back and forth between death row and your son.

Professor DAVID DOW (Author, "The Autobiography of an Execution"; Litigation
Director, Texas Defender Service): Yes, it's a very difficult transition. I
think that it's still a difficult transition for me, even though I've been
doing it now for nine years, which is how old our son is.

I spend a lot of time at death row, which is located in Livingston, Texas, and
the visits range from okay to terrible. I don't think that I've ever really had
a visit on death row that I would call good. Maybe there's been one or two
where I'm reporting to an inmate that we've won and that I don't think that
there's any chance that that victory is going to be taken away from us. I
suppose you could call that a good visit, except that it's still a case where
there has been a murder in the background, and I've spent all day at death row.

And then I come home, and I see my son, and he's been at school. He's now in
third grade. But in the stories that I'm telling in the book, a lot of the
times he was in kindergarten or first grade, and it's just a very difficult
transition. He wants to talk to me about that he did well on the spelling test
or that he got all of the state capitals right, and then he says, you know, how
was your day? And it's just a difficult conversation to have.

I think that I've gotten better at those transitions and conversations over the
years. But I would say that for a while, they were difficult for me.

GROSS: What do you tell him about your work?

Prof. DOW: Well, from the time that he was old enough to ask me what I do, I
would tell him honestly. Now, we obviously haven't told him about the details
of what the people I represent have done. He knows that I represent people who
have done bad things. He knows that I represent people who have killed
somebody, and he knows that I represent people that the state wants to punish
by executing them.

As I say, he doesn't know the details of the murders. He doesn't know details
of how executions are carried out. But from the time that he's been old enough
to ask what I do and why I do it, I've told him honestly. I haven't really felt
that there was any way that I could think of to hide that from him in a way
that wasn't misleading or dishonest.

GROSS: You write that when you come home, you shower, and then you wash your
clothing in a separate load from the rest of the family's. Are you trying to
wash out, like, the grime and dirt from the prison, or is it something more
existential you're trying to wash out?

Prof. DOW: Well, I'm sure that a psychologist would say that there's something
existential that I'm trying to wash out. I just really feel that I don't want
death row hanging over me when I'm in my house.

The prison itself obviously is not filthy. It's not a prison environment like
you might think if you've seen "Midnight Express" or something like that. It's
a fairly sterile environment, and they have linoleum floors, and there isn't
trash on the floor and that sort of thing. But there's just an aura about the
place that at least I personally, I find that it clings to me. And I don't want
it to cling to me.

And so, I've just had a habit for the last 15 years of feeling so dirty when I
get home from the prison that I just feel like I want to wash it off of me. And
to this day, the first thing that I do when I get home from spending a day at
death row is walk up to the shower and get in the shower and carry my clothes
and put them in the washing machine. And my – our son is, he's an
environmentalist. And so, he tells me that I'm not being earth-friendly when I
throw the clothes in a washing machine. Oh, by the way, so I no longer turn on
the machine.

Now I just throw them in the machine, and we don't actually turn on the machine
until we have a fuller load. So as a result of pressure from him, I've backed
off from my previous policy of washing the clothes right away. But I still, to
this day, feel like I need to wash the prison off of me.

GROSS: One more thing about your son before we get deeper into your work
representing people on death row. You write that your son started getting night
terrors at the age of two, and you say: I knew they weren't my fault and that
they were. What was happening in your life when those night terrors started?

Prof. DOW: It was 2004 and 2005 that I remember becoming aware of the link
between my life and his night terrors. It was a very bad year for me
professionally, and I remember coming home one day from the prison, and it had
been a particularly difficult day for me. I had had a visit where I had told a
client of mine, who was going to be executed the next week, that he was almost
certainly going to be executed, that there was really nothing left for us to
do, and it was a client who I cared about.

I don't care about all of my clients deeply, but I did about this one. And it
was difficult for me. And I remember walking into the kitchen at the end of
that day, and my wife and son were sitting at the kitchen table. Lincoln was
eating his dinner, and Katya and he were reading a book together, and I walked
over, and I kissed them, and Lincoln said: Dada, you seem really glum.

And I thought to myself, I don't really want the first thing that my says to me
to be dada, you seem glum. And so, I decided at that moment that I wasn't going
to be glum in front of him. And two weeks after that, it was another bad day
for me at the office. And I came home, and I finished listening to the song on
the CD that I was listening to in the car before I came inside, and the song
finished, then I steeled myself. I plastered a smile onto my face. I put a
little lightness into my step, and I walked into the house faking it.

And of course, Katya, my wife, could tell that I was faking it, but I thought
this was a pretty good act, and Lincoln, he wasn't going to be able to tell.
And I walked over, and I kissed them both again, and Lincoln said: Dada, you
seem glum.

And then that evening, after we put him to sleep, I was talking to Katya and
telling her that I was trying my hardest to not communicate what I was feeling
professionally to Lincoln when I came home. And literally, in the middle of
that conversation, he started wailing upstairs.

And so, I became – I just became deeply aware of the way that I was bringing a
certain sadness or heaviness or weightfulness, if there's such a word, into the
house, and that I was burdening him, or at least I felt like I was burdening
him with that. And I wanted to do something to try to take that weight away.

GROSS: My guest is David Dow. He's been representing death row clients in Texas
for about 20 years. He's written a memoir called "The Autobiography of an
Execution." Let's take a short break here, and then we'll talk some more. This
is FRESH AIR.

(Soundbite of music)

GROSS: My guest is David Dow, and he's written a new book called "The
Autobiography of an Execution." It's a memoir about his work as a death row
lawyer, defending death row clients, and the book has just been published.

You write that murder is perhaps the ugliest crime, and that's why it's so
shocking to you that murderers, most murderers are so ordinary in appearance.
Did you start this work expecting to meet monsters and end up meeting people
instead?

Prof. DOW: That's exactly what happened. I think that the first time that I
went to death row, I expected it to be full of Hannibal-Lector-like characters,
people who gave you the creeps just to be sitting in front of them. And, in
fact, exactly the opposite happened.

When I first started representing death row inmates, most of the people who I
was representing were probably a few years older than I was. And now, of
course, I've been doing it 20 years, and most of them are younger than I am.
But I had a client, for example, who was executed last November, November of
2009, and I remember the first time I went to see him, being struck by how
completely ordinary he looked.

The first thing I thought when I was talking to him was that I simply could not
picture this kid – he was 30 years old, but he still looked like a kid to me –
I simply could not picture this kid doing what he had done. And I think that
one of the really striking things about meeting people on death row and talking
to people on death row is that, almost without exception, they don't look like
what you expect them to look like.

There are a few, obviously, who have ticks and mannerisms, and you can tell
that they're not normal in the sense that they have some apparent mental
illness, but almost all of them aren't like that. Almost all of them look like
people who you might have sat next to at the bar, where you were watching the
ball game the night before.

GROSS: The people who you defend aren't monsters, but some of them have
committed, most of them have committed crimes that are monstrous. Can you give
us an example of somebody who you defended who you were pretty sure was, in
fact, guilty and who committed an especially monstrous crime?

Prof. DOW: Yes. I had another client who was executed in March of last year.
His name was Willie Pondexter. And Pondexter had grown up in this vast,
sprawling, broken family. One of the things that the lawyers in my office do is
we try to construct family trees of all of our clients, and it's not just for
curiosity that we do that, but one of the things that we're looking for when we
do that are signs of mental illness because mental illness tends to run in
families. And the only way you can know whether mental illness is running in a
family is to construct a family tree. And so, we routinely construct family
trees.

The family tree that we tried to construct for Pondexter looked like a Jackson
Pollock painting. I mean, it had so many triangles and squares and circles
veering off into all kinds of different directions that it was impossible to
follow.

And that was the environment where he grew up. He grew up in an environment
where he had no father. His brother, the only full brother that he had that he
was close to committed suicide when Pondexter was 10 years old. His mother was
placed in mental hospitals four, five or six different times, and he ended up
finding a family, which was a gang.

And as a result of that membership in a gang, he participated in a crime that
included the murder of an elderly woman by the name of Martha Lennox. They
killed her and then stole her car, and there isn't any doubt that Pondexter
participated in that crime. I'm not sure that he would have initiated it, but
he participated in it voluntarily. And Martha Lennox was shot and killed inside
her house in a suburb of Dallas.

By the time Pondexter was executed, more than 10 years after this crime had
been committed, he was simply not remotely the same person he had been at the
time the crime occurred. He had completely grown up. He had matured. There were
guards on death row who approached me and told me that they didn't think that
he should be executed. Several of them signed affidavits that we submitted to
the Board of Pardons and Paroles on his behalf to try to have his death
sentence converted into a life sentence.

He is somebody who, at the time that he was executed, I would have had no
hesitation, none, asking him to babysit for our son. He was simply not
dangerous anymore. He had been rehabilitated. As a society, we've mostly given
up on rehabilitation, but Pondexter had been rehabilitated.

GROSS: Is this an example of one of the reasons why you do death row work,
because there are people who are going to be killed for a crime in their past,
and they've since been transformed in some way?

Prof. DOW: Yes, I think that that's certainly one of the factors that pulls me
to the work. We’re executing people who did something unspeakably terrible at
some point in their lives, and yet by the time we execute them, many of these
people – I'm tempted to say most – would not ever commit such a crime again.

I had another client who was executed just this past November who was executed
because he and three others went out looking for a house to burglarize. And
they broke into a house because they thought it was empty. They picked it
because they thought it was vacant.

And sure enough, it was vacant. There were four of them. Two stayed in the car,
and two broke in. And while the two were inside - one of them was my client,
whose name was Christian Oliver – and while Christian was inside the house, the
owner of the house, a man by the name of Joe Collins, he returned home.

And Joe Collins happened to be a gun collector and a marksman as well. And so,
he picked up one of his own guns and started to chase the two boys through the
house. They had broken into his house after all, and he was unhappy to come
home and see these two kids burglarizing his house.

And the two kids - Christian and the other one - ran to the back of the house
to try to escape through the back. And unfortunately for them, the back door
was locked. It was padlocked shut from the outside. And so, the two took refuge
in a bedroom in the rear of the house, and Mr. Collins cornered them there and
started shooting into the room. And then my client, Christian Oliver, shot back
and killed Mr. Collins.

Christian Oliver had been involved in other burglaries before this crime. He's
never been involved in a violent crime. He'd never even shot at anybody, much
less killed somebody. And so, here you have this – I call him a kid. By the
time he was executed, he wasn't a kid anymore, but he was only 19 at the time
this happened.

You have this young man, and he participated in a crime that should never have
happened. He should never have participated in it. But the crime itself spun
out of control in a way that he certainly didn't plan and probably nobody could
have predicted. And by the time he was executed, 11, 12 years after this
happened, I feel confident in saying that there was no way that was ever going
to happen again.

GROSS: So when you are defending somebody who's already been convicted of
murder, they're on death row, and you're trying to appeal their case, on what
grounds can you appeal? You think they are guilty most of the time, not all the
time, but most of the time. So the question isn’t whether or not they did the
crime usually. So what is the case about then?

Prof. DOW: In death penalty jurisprudence, there's this very peculiar concept,
and the concept is being innocent of the sentence. So the person isn't innocent
of the crime. There's not an argument that the person didn't commit the crime.
The argument is that the person is innocent of the sentence.

And what that means is that the person should have been sentenced to life in
prison rather than death. So most of the time, what I'm doing as an appellate
lawyer in these cases is trying to construct the argument to persuade a court
that my client, even though he did something horrible, even though he committed
a murder, should have been sentenced to life in prison rather than death.

And then there are a variety of argumentative strategies that we use to try to
persuade the court that the person should have a life sentence rather than a
death sentence.

GROSS: And which court are you appealing to?

Prof. DOW: Well, I personally, and my office generally, work in both the state
courts, as well as the federal courts so that the first layer of appeals in
death penalty cases go through the state courts. And then after you exhaust all
of your opportunities in the state courts, you have an opportunity to go into
federal court.

GROSS: And sometimes you've appealed directly to the Supreme Court.

Prof. DOW: Almost invariably, we try to take the case all the way up to the
Supreme Court. The Supreme Court, unlike the other courts, has to give you
permission to appeal to it. So we are allowed to file an appeal in the lowest
federal court, the federal district court, and then if we lose there, we're
permitted to appeal that loss to the intermediate court of appeals.

If we lose there, we almost always ask the Supreme Court to review the case,
but the Supreme Court rarely does. They only hear these appeals in a handful of
cases.

GROSS: David Dow will be back in the second half of the show. His new memoir is
called "The Autobiography of an Execution." He's a distinguished professor at
the University of Houston Law Center and the litigation director of the Texas
Defender Service.

I'm Terry Gross, and this is FRESH AIR.

(Soundbite of music)

GROSS: This is FRESH AIR. I’m Terry Gross back with appellate lawyer David Dow
author of the new memoir "The Autobiography of an Execution." Over the past 20
years, he's represented more than 100 death row inmates, mostly in Texas and he
continues to do the work although he knows most of his clients are guilty. His
goal with guilty clients is to prevent them from being executed and change
their sentence to life in prison. He opposes the death penalty. Dow is a
distinguished professor at the University of Houston Law Center and the
litigation director of the Texas Defender Service.

We’ve talked about cases where you were convinced that your client was guilty
of murder but that they shouldn’t be executed. There is one example in your
book of a case you took on where you came to believe that your client actually
did not do the murder - did not commit the murder - murders that he was accused
of. Can you tell us briefly what the charges were against the person who you
give the name of Quaker in the book? You’ve changed the names in the book.

Prof. DOW: I have changed the names. The story that I tell about Henry Quaker
is a story involving one of my clients who was convicted of killing his wife
and his two children. And over the course of my work on that case, I came to be
convinced that he didn’t actually commit the crime. Of all the cases that I've
worked on over the years - more than a hundred cases - there've been only seven
or eight where I reach the conclusion that my client didn’t commit the crime
that he was sent to death row for.

One of the erroneous beliefs that people have about death row inmates is that
they all claim to be innocent. In my experience, very few of them claim to be
innocent. And what that means, if you’re a death penalty lawyer, is that when
somebody claims to be innocent, you pay attention to that claim and you pay
attention to it because it isn't all that common for people to claim to be
innocent.

In the Henry Quaker case, Henry Quaker told me he was innocent and I didn’t
believe him at first. I didn’t disbelieve him. I simply didn’t form an opinion;
I tried not to form an opinion. But the more deeply we looked at the case the
more I became convinced that all of the evidence that had been used to support
Quaker's conviction had problems with it and at the end of the day, none of it
in my judgment really established his guilt. And that, coupled with the shear
fact that I believed him when he told me he didn’t do it combined to convince
me that he was innocent.

GROSS: But you lost the case anyways.

Prof. DOW: We did lose the case, anyways. Of the six, or seven, or eight cases
that I've mentioned where I said I think that I've been representing somebody
who's innocent, the truth is that I've lost most of those cases. I think that
that's one of the reasons that it's harder to represent somebody who you
believe to be innocent than somebody who you believe to be guilty. Because as a
death penalty lawyer you’re going to lose most of the cases - almost all of the
cases, and if you’re going to lose almost all of the cases, this sounds odd to
say, but it's less devastating to lose a case where you’re representing
somebody who actually committed the crime that he's being executed for
committing.

GROSS: So, for Quaker, whose innocence you believed in, did you witness his
execution?

Prof. DOW: Yeah, I did witness Quaker's execution. They're...

GROSS: Why was it important for you to be there?

Prof. DOW: There's a lawyer in my office who was asked to witness an execution
at the end of last year and she asked me whether she should. And I'm going to
tell you what I told her. What I told her was that it is something you will
never get over, that you have nightmares about it for weeks, months, maybe
years. And so, what you have to decide when you’re making the decision about
whether you’re going to witness your client's execution, is whether the
suffering that you’re going to have for watching it is greater or lesser than
how much your client needs you to be there.

I watch executions only if my clients ask me to. And if they ask me to, I watch
because if they ask me to I feel that it is more important to them that I be
there than it is to me that I not be there. In addition, one of the things that
I talk about when I'm talking about the Quaker case is that in almost all of
our cases we're actually litigating the case up until the very end. I had a
conversation with one of my clients last week and I was telling him that he
could put me on the witness list to witness his execution if he wanted to, but
that I thought it was really more important that I be in my office working on
the case if we were still working up until the end.

So I think that one reason that many death row inmates don’t put their lawyers
on the list of people to witness their execution is that their lawyers tell
them they'd really like to be working on the case up until the very end. That's
certainly true in my case. I tell my clients that I’ll be there if they want me
to, but that I'd rather be at my office so that I can try to keep working on
the case if there's anything left to do.

GROSS: Did you ever get one of those last minutes stays of execution?

Prof. DOW: Oh sure. We get last minute stays of execution; I'm tempted to say a
lot. It's not a lot compared to the number of executions, but in 2009, for
example, we had six or seven last minute stays of execution. So it happens
about every other month or so for us.

GROSS: That's a lot. So when you are witnessing an execution, do you try to
make eye contact with your client when they're strapped to the chair?

Prof. DOW: The people who are being executed can't see...

GROSS: It's really a gurney, isn't it? It's not a chair anymore.

Prof. DOW: It's...

GROSS: In Texas it’s a gurney and it's - what's it called? Like an IV. What's
the word for it?

Prof. DOW: Right. It's lethal injection.

GROSS: Lethal injection. Yeah. Yeah. So you can't make eye contact because
they're in a prone position.

Prof. DOW: Well, you could - you would be able to make eye contact if they
could see you because you are standing at a level that is above them, so that
you’re essentially looking down at the person who's strapped to the gurney. And
what typically happens is that there are three different rooms that witnesses
are in. There's one room that is reserved for members of the press; there's a
second room that is reserved for members of the - family members of the murder
victim, and then there's a third room that is reserved for people who have been
asked to witness the execution by the person who’s being executed.

And they're those three different rooms and one of those rooms is essentially
at the feet of the person's who's being executed and if the person who's being
executed turns his head to the left - and I say his head because most people
who are executed are in fact men - if he turns his head to the left he would be
looking into the room where the family members of the murder victim are. And
then if he turns his head to the right he would be looking into the room where
his own witnesses are. But all of those windows are one-way glass so that the
witnesses can see into the execution chamber but you can't see into any of the
other rooms where witnesses are.

And so, by the same token, the person who's being executed can turn his head
and look towards the family members of the murder victim. He can look toward
his own witnesses but he doesn’t actually see them because he's looking at a
piece of one-way glass. So, I guess in answer to your question, it's possible
for the witnesses to make eye contact with the execution victim but it's a sort
of one-way eye contact. You’re looking at the person who’s being executed but
he's not seeing you.

GROSS: It’s hard to single out not being able to make eye contact as the thing
that's unfair about execution, but it does seem like okay, so you’re executing
the person, shouldn’t they at least be allowed to make eye contact with family
or friends? Is there like a reason why it's one-way glass and they're not
allowed to see you?

Prof. DOW: The reason that it's one-way glass is simply because if it weren't
the witnesses would be able to see into the other witness rooms and I...

GROSS: Oh, I see so - Mm-hmm.

Prof. DOW: Yeah. And so I think the idea is that they don’t want, for example,
the relatives of the person who's being executed to be able to look into the
room and observe the family members of the murder victim and vice-versa. They
don’t want the family members of the murder victim to be able to look into the
room where the relatives of the person who's being executed are located. So I
think that's just the practical reason that they do it. But the truth is that
it goes beyond not being able to make eye contact.

When people arrive on death row they lose their opportunity to have contact
visits with anyone. In some cases the lawyers can have contact visits with
their clients but they're not permitted, any longer, to have contact visits
with their family members. So when somebody gets executed, he has to tell his
family goodbye by talking to them on a telephone. I was talking earlier, about
my client Christian Oliver who was executed last November.

His execution was witnessed by four members of his family - his mom, his dad,
his brother and his sister - and he had to tell them goodbye by essentially
talking to them on a microphone. He wasn’t permitted to hug them; he wasn’t
permitted to kiss them. I think that that aspect of the way that we carry out
executions in the U.S., and in Texas, in particular, is an aspect of these
executions that has been particularly bothersome to me.

GROSS: My guest is David Dow, an appellate lawyer who represents death row
inmates. His new memoir is called "The Autobiography of an Execution."

We'll talk more after a break.

This is FRESH AIR.

(Soundbite of music)

GROSS: If you’re just joining us, my guest is David Dow and he's the author of
a new memoir about his work as a defense attorney for death row clients and the
book is called "The Autobiography of an Execution." He's been representing
death row clients under appeals in Texas for about 20 years.

Now you’ve spent your 20 years working on death row in Texas, which is famous,
for among other things, for having a lot of executions. So what's unique about
working with death row clients in Texas?

Prof. DOW: I have a few cases that I work on in other states and one of the
facts that always strikes me when I go to those other states is how different
death penalty lawyers are in other states. Even other states that have
substantial death row populations, like Florida. Death penalty lawyers in other
states are not constantly representing clients who are on the verge of
execution. In other states it's a busy year in the execution chamber if you
have five or six executions. In Texas, we might have five or six executions in
a month or two.

What makes being a death penalty lawyer in Texas different from being a death
penalty lawyer anywhere else, is just the shear volume of executions that we
confront. And that volume of executions has an impact on the lawyers who do the
work. There's never really a period of time where you have a breather where you
can relax from the constant pressure of having clients who are just days or
weeks away from being executed. I think that that's the singular factor about
Texas that makes it different from other places from the standpoint of a death
penalty lawyer.

GROSS: You know, I found it really interesting in your book that you often warn
your death row clients that if they appeal they're probably not going to win.
And if they lose they might be executed very shortly after they lose and
they're not going to have time to prepare for their death. Why do you tell your
clients that?

Prof. DOW: I was talking earlier about how, in most cases, we are litigating up
until the very end; we're trying to find something else that we can file,
something else that we can do. But at the same time, even if we find something,
I know we're going to lose. And so I think that it's incumbent on me as a
lawyer to tell the clients that we're going to lose. And I do that for two
reasons: one of them is altruistic and one of them isn't. The altruistic reason
is that I believe in being honest with my clients. I don’t want to tell them
that I think that we're going to win if I don’t think that we're going to win.
I don’t want to mislead them. I don’t want them to put off doing things that
people who know the date that they're going to die might want to do. I don’t
want them not to write goodbye letters to people they want to write letters to.
I don’t want them not to say goodbye to their loved ones. I don’t want them not
to make plans for disposing of their body if that's important to them. So, one
of the reasons that I'm honest is just so that my clients can tie up the loose
ends the way many people would want to. The second reason is that I'm the one
who has to call them after our final appeals have been turned down by the
Supreme Court and that typically happens at 5:30 in the afternoon or 20 to 6:00
and the execution is scheduled for 6 o'clock.

GROSS: Wow.

Prof. DOW: And I pick up a telephone and I call the prison where they're going
to be executed at that time. My clients are still in a holding cell, which is
immediately adjacent to the execution chamber and I identify myself to the
warden's assistant who answers the phone, although I think she knows my voice
by now, and then she patches my call through to the telephone that's right next
to the holding cell. And a guard picks it up and I identify myself to the
guard. I think he knows my voice as well by now, and then I talk to my client.
And I tell him that we lost.

Sometimes the conversations are very very short; sometimes they're a little bit
longer. One of the reasons that I'm so clear when I tell them that this is the
way the cases are probably going to develop, is that I have in fact had the
experience of calling someone who was not prepared to die. And I called him and
told him that we had lost and he started crying the crying turned into
something that was close to hysteria and he was begging me to do something
else, to file something else, to think of something else to try to do for him.
And those are horrible conversations to have. They're terrible for the inmate,
of course, but it was also, frankly, terrible for me and I don’t want to have
anymore conversations like that.

GROSS: Now, you write in your book that the people you meet on death row,
they're not monsters; they're people and often they're transformed people
'cause the crime that they committed - the monstrous crime they may have
committed - was years ago and they often change between the time of the crime
and the time of the execution. Yet, at the same time, you write in your book: I
believe in evil. When you use the word evil and say that you believe in it,
what do you mean?

Prof. DOW: I do believe in evil. I believe that there are some people who are
just bad and they're never going to be made good. And I think I say in the
book, I hope I say in the book, that I don’t know how they got to be that way.
I don’t know whether they were born that way or whether they were broken at
such a young age that that's how they came to be that way, but from the point
of view of society it doesn’t really matter. It doesn’t really matter why a
person is inveterately bad. And I think that there are people like that. I
don’t think that we need to be executing them. But I do believe that they're
people in prison who can not possibly be made good - who can not possibly be
rehabilitated.

GROSS: And what's your role as a defense attorney when you’re representing
somebody who you not only believe is guilty but who you believe is evil?

Prof. DOW: My role as a defense lawyer is to try to persuade the court - the
judges - that my client should've been sentenced to life rather than death. And
I will say this, that even in those some number of cases where I've been
representing somebody who I really believe is or was an evil person, even in
those cases, there were appalling constitutional violations. And one of the
things that I noticed about those cases is that the fact that my client seems
to be evil, seems to make it easier for the judges to ignore the fact that
there were constitutional violations. They just don’t care about it. They say,
here we have a bad person; this is a bad person. There's no way this person is
ever going to be fixed or better or rehabilitated. Let's just be done with him.
And I represent those people because I don’t accept that analysis. I don’t
think that that's the United States legal system is supposed to work. Even my
bad evil clients are human beings who are entitled to have their rights
protected.

GROSS: David Dow, thanks so much for talking with us.

Prof. DOW: It's my pleasure. Thank you for having me.

GROSS: David Dow's new memoir is called "The Autobiography of an Execution."
He's a distinguished professor of law at the University of Houston Law Center
and the litigation director of the Texas Defender Service. You can read an
excerpt of his memoir on our Web site freshair.npr.org.

Coming up, jazz critic Kevin Whitehead reviews a new CD of music inspired by
Eric Dolphy. It's by the British band Empirical.

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Jazz Ensemble Empirical Recalls Eric Dolphy

(Soundbite of music)

TERRY GROSS, host:

The young English quartet Empirical has been scooping up jazz awards in the UK,
and our jazz critic Kevin Whitehead thinks their new second album might be
their breakthrough in the states, and not just because it honors one of their
American heroes.

(Soundbite of song, "Hat and Beard")

KEVIN WHITEHEAD: The English band Empirical playing "Hat and Beard" by Eric
Dolphy, a patron saint of the 1960s avant-garde. Like his colleagues Charles
Mingus and John Coltrane, Dolphy could blur the lines between traditional and
exploratory jazz. In hipster parlance, he played both inside and outside.

Empirical play two Dolphy tunes on their album dedicated to him "Out 'n' In."
Here's one of their originals, Nathaniel Facey's "So He Left."

(Soundbite of song, "So He Left")

WHITEHEAD: Empirical's new CD is less about reviving Eric Dolphy's music than
recapturing the spirit of his 1964 masterwork work, "Out to Lunch!" That album
has the same quirky rhythm lineup this quartet has: bass and drums, plus
vibraphone instead of piano. That creates a different kind of backdrop for
Nathaniel Facey's alto sax.

(Soundbite of song, "So He Left")

WHITEHEAD: Lewis Wright on vibes and Shaney Forbes on drums, twisting and a
turning.

Empirical performs an extreme version of jazz's everyday miracle. They play
mostly spontaneous, constantly mutating parts, that fit together like
clockwork. Close listening is the key. The middle part of the song
"Syndicalism," by bassist Tom Farmer, lacks the typical markers of swing
rhythm. There's no walking bass or pulsing ride cymbals. But all the players
contribute to the catlike prowling, including guest Julian Siegel on tenor sax.

(Soundbite of song, "So He Left")

WHITEHEAD: The band Empirical takes what they learned from Eric Dolphy and make
it their own. If jazz often seems preoccupied with its own past, it does have a
way of reinventing itself out of its root materials. Nowadays, bands get
praised for evoking the '60s like it's the 1980s all over again. But even
revivalism ain't what it used to be. The '80s version was partly an attempt to
write problematic music out of jazz history. New revivalists like Empirical are
writing that outside stuff back in.

GROSS: Kevin Whitehead is a jazz columnist for eMusic.com. He reviewed "Out 'n'
In" the new album by the British band Empirical.

(Soundbite of music)

GROSS: You can download Podcasts of our show on our Web site at
freshair.npr.org. And you can follow us on Twitter and friend us on Facebook at
nprfreshair.

I'm Terry Gross.

(Soundbite of music)

GROSS: On the next FRESH AIR, the political battle over how to try Khalid
Sheikh Muhammad and other alleged terrorists. We talk with Jane Mayer who
covers politics and national security for "The New Yorker." Her current article
"The Trial," is about how Attorney General Eric Holder's choice of a civilian
trial for the architect of 9-11 has galvanized Republicans.

Join us.

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