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David Dow Is Interviewed by His Brother, Mark, in an Online Publication Alternet.Org David Dow is interviewed by his brother, Mark, in an online publication AlterNet.org. A transcript of the interview is attached and the article can be accessed online at: http://www.alternet.org/rights/146690/what_drives_a_death_penalty_lawyer_a_conversation_with_te xas_defense_attorney_david_dow CIVIL LIBERTIES Killing the Buddha / By Mark Dow What Drives a Death Penalty Lawyer? A Conversation With Texas Defense Attorney David Dow Mark Dow writes on the criminal justice system. David Dow tries to save his clients from execution. The two discuss the death penalty, kayaking, and the concept of evil. April 30, 2010 I think it's a coincidence that my brother David and I have both written about prisons, though our father is a lawyer, and his father was a lawyer. When David was in college, he served on the Harris County Grand Jury, and then he wrote up a detailed critique of the grand jury system, which he sent to various academics and newspapers and which, last summer, I discovered among my own papers. David studied American slavery in graduate school at Yale, where his teachers included Edmund Morgan and David Brion Davis. Then he went to law school there. He has been teaching and practicing law in Houston (where we grew up) for about twenty-five years now. That work includes directing the litigation at the Texas Defender Service and representing death row inmates. In his new memoir, Autobiography of an Execution, he has written about doing that work while being a husband and a father. The first prison I visited was the State Penitentiary in Parchman, Mississippi. I was writing poems and working temp jobs, having studied poetry at the University of California, Irvine, as part of the mid-'80s wave of the "creative writing" industry. My girlfriend at the time was representing death row inmates at Parchman. I met a prisoner there named Samuel Johnson, and about fifteen years later I wrote about him in a book that David and I co-edited called Machinery of Death: The Reality of America's Death Penalty Regime. People from big families usually ask about birth order. David is the oldest of us five brothers, and I'm next. Mark Dow: You're a relatively private person. Why write such a personal book? David R. Dow: It started as an exercise to try to help me leave frustrations and depression, and maybe even a little anger, on the page, rather than bringing it home with me. Then one day I had collected these pieces of the narrative that eventually turned into the book, and I realized there were some ideas I wanted to express not so much about the death penalty per se, but more about being a death penalty lawyer. Did you discover anything along the way? Yes, absolutely. I discovered that putting things on paper did not help me leave them on paper. The exercise of writing things down actually made me feel them more intensely and more deeply, not less. But the writing also helped me see more clearly the way the various pieces of my life fit together. As I was writing, I was re-living, but re-living in slow motion, if that makes any sense. It does. How does that feeling compared to the feeling of being in your kayak? If I didn't know better, I would swear you are a whitewater enthusiast. When I used to kayak in what we call big water, you are moving really fast, and you do not have any time to think. You plan your line before you get into the rapid, and then you make instantaneous adjustments. It might take a couple of seconds to paddle through a monstrous rapid. But the sensation of being in the water is of super slow motion. You are aware of everything: every wave curl, where the eddies are, everything. So the answer to your question is that it is very similar. Everything is happening fast, but it seems slow, and if it doesn't seem slow, it means you are panicking, and the last thing you want to be doing, as either a paddler or lawyer, is panic. What do you enjoy about arguing? Nothing. I hate everything about it. I don't believe that. I do it because of the remote possibility that whomever I am talking to will change her mind, but the rational part of my brain knows that aspiration is a fantasy. I used to enjoy arguing. It was just intellectual jousting. I liked it for the same reason I like wrestling. But I used to delude myself into thinking that it mattered, that people might actually realize you were right about something. The weird thing is I think of myself as open-minded. When I argue with Katya, I might change my mind, or she might. But I think judges, at least in death penalty cases, rarely do. So I hate it, because it is a charade, and a consequential one at that. I wasn't actually thinking about legal arguments when I asked that. I was trying to ask what you enjoy about arguing in general. Ah, arguing in general. It's the talmudic tradition, right? Or the Socratic method, if you prefer a secular analogy. Arguing focuses the mind. Some people meditate to try to dig down to the truth. That has never worked for me. I prefer a more violent encounter. You struggle with everything until something strikes you as true and correct. I like arguing because the exercise reveals truth. Of course, you have to be honest, or it doesn't work. Which really is the gripe I have with legal arguments. In an essay about movies and the death penalty, you wrote that "the truth as it actually is is too complex or disturbing to confront honestly." One of the films you praise -- speaking of slow motion -- is Errol Morris's The Thin Blue Line. I think the repeating of the milkshake motif is brilliant, but lost on anyone who has not been in a traumatic circumstance. Yes, I always mention those slow-motion sequences when I tell people about getting mugged in Miami. I liked his early films a lot, and I haven't seen the Abu Ghraib film, but through Mr. Death and The Fog of War, I think Morris has gotten more and more lost as his films get slicker. What do you mean by slicker? And by lost? In Mr. Death, the self-consciousness of framing and angles -- Morris's "take" on Leuchter, his need to showcase his own technical prowess, whatever the subject matter -- all this continually and heavy- handedly suggests the "enigma" of Fred Leuchter, when it's his ordinariness that's the enigma. [Note: Leuchter designed execution equipment for U.S. prisons.] Morris defended his MacNamara film by appealing to the complexity of life. He doesn't seem to realize that his special effects and montages in that film are pure melodrama. When I watched The Thin Blue Line again a couple of years ago, I realized it's already there. It's a kind of highbrow melodrama, I think -- which explains the Philip Glass scores. A filmmaker who actually makes room for complexity is Frederick Wiseman, and it's revealing to see how shallow Morris's view of Wiseman is -- and he clearly admires Wiseman. I thought he might actually be making some sophisticated joke by pretending to be so reductive about Wiseman -- he calls Wiseman's films "bitter and funny." I'm still not sure. Anyway, speaking of Fred Leuchter, since Machinery of Death, the one thing we disagree about when it comes to the death penalty is "evil," a term you insist on using. You're so strongly anti-religion; why rely on a theological term? I'm not committed to the word "evil." I'd be almost as happy with "bad." There are bad people. That said, I think I prefer "evil" because it evokes an idea I do believe, which is that there are some people -- I'm not saying there are many, but some -- who are unfixable. They are so deeply broken, they cannot be allowed to live in society. You can call them psychopaths if you prefer a secular term. They lack something important. You say I "insist" on using the word. I think you are probably right to perceive that. I insist on it because I think the engine that drives most death-penalty supporters is that they believe there are such people. I do disagree about how many of them there are, but not about whether such human beings do in fact exist. So I think I use the term to try to convey that I disagree with death-penalty supporters not because I have the view that everyone is fundamentally good, or even salvageable, but just because I think it is wrong to kill, even when we are facing someone who is broken beyond repair. Why do first principles, if that's the proper term, matter so much to you? The philosophical answer is easy; is there a personal answer? Is the philosophical answer too easy? Amartya Sen has a new book where he argues that first principles are distracting in moral discourse because they ignore the world in which we actually live. (I am paraphrasing grossly here; his argument is subtle and sophisticated.) But for the moment, I'll concede your premise and tell you the answer: I have no idea. I think you are asking me about why I believe what I believe, or why I have the values I have.
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