Learning to live with dying

Posted Tuesday, Jan. 07, 2014  comments  Print Reprints
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Things I’ve Learned From Dying

by David R. Dow

Twelve, $25

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One thing I’ve learned is that in the face of tragedy you are powerless to prevent, there is no greater empathy than quiet.

— David R. Dow, attorney and author of Things I’ve Learned From Dying

One of the most heartrending moments in David Dow’s new book involves a boy and his dog. The boy is Dow’s young son, Lincoln, and the dog, Winona, is their beloved Doberman, who has fallen gravely ill. In what will be one of Dow’s great regrets, he makes the decision to put Winona to sleep one morning while Lincoln is at school. He doesn’t give his son the chance he wants, needs, to say goodbye.

That message — the significance of completing relationships — is at the heart of Things I’ve Learned From Dying (Twelve, $25), which hits shelves Tuesday. It is the second memoir from the renowned Houston death penalty lawyer, who knows a thing or two about the subject after representing more than 110 men on Texas’ Death Row.

In his new book, Dow, 53, gracefully intertwines the narratives of three lives, all battling simultaneous death sentences: his father-in-law, Peter, diagnosed with aggressive cancer; the family dog, Winona; and a Death Row client with a looming execution date. The client, Eddie Waterman, is identified by a pseudonym for legal reasons, as are most of the clients in this book and Dow’s deeply personal and critically acclaimed earlier work, The Autobiography of an Execution, released in 2010.

In Autobiography, Dow set a more John Grisham-like pace, weaving in the heartache and legal insanity involved in trying to save an innocent man on Death Row. (Of the 308 people on Texas’ Death Row, he is involved in representing 22 of them.) But most of his clients, Dow readily admits, are guilty as hell. That’s one reason he says he switched gears in Dying and chose to explore his intimate relationship with a Death Row client who carried out a cold-blooded, horrible act.

Unlike many death penalty abolitionists, Dow doesn’t believe the possibility of innocence should be the primary argument for revoking the death penalty — even though his single-minded passion has freed innocent men from Texas’ Death Row. It is also not a topic about which he brags or rants.

In fact, Dow is intriguingly unpredictable. He’s a death penalty lawyer who believed in the death penalty — just not for his clients — until his mid-30s. He’s Texan-born and Yale-bred. He once loaded a .357, drove to the gun range, and set up pictures of judges he despised as targets.

An adrenaline junkie who battles the ocean in a kayak as a cleansing exercise after an execution, he’s also compulsive about things like washing the clothes worn to an execution in a separate load at home in order to avoid tainting anyone else’s. He reads Dostoyevsky and Junot Diaz, poetry and Cormac McCarthy. He depends on his wife and son for love and grounding, when many death penalty lawyers wind up childless and married to their careers.

Most of his time is dedicated to defending clients and teaching at the University of Houston Law Center, where he runs a student-staffed death penalty clinic. But his books are bare of legalese. He’s a natural storyteller, constantly repairing his own battered soul. He even manages to make that a contradiction by writing a book about death that is hopeful instead of tragic.

Here is a candid conversation with David Dow about the book and its life-and-death issues:

What’s the main thing you hope people will take away from Things I’ve Learned From Dying?

I wasn’t interested in writing a self-help book about how everybody needs to realize that they are mortal, how everybody needs to realize that they shouldn’t spend time doing things that are hateful to them. All those things are true, but I really don’t have anything new or interesting to offer. I wanted to write about how when you know … in a very concrete way, that people are going to die tomorrow or the next day or next week, it creates real intensity … that makes you feel like you don’t want to leave any part of the relationship unfinished.

I think of relationships as an organic thing that begin and develop and mature. In these three cases, everybody involved in the relationship knew that death was imminent. I felt like I wasn’t relieved or satisfied when Peter died or (my Death Row client) died or certainly when Winona died, but I felt like all of those three deaths resulted in my having a complete relationship that otherwise would have just ended.

At various points, your father-in-law, Peter, wanted to give up on aggressive cancer treatments and live out his life as peacefully as possible. Everyone who loved him was urging him to keep fighting. In the end, he told you he thought that was the right course. Do you still think so?

I think (Peter’s experience) would absolutely have an impact on me if I got a terminal diagnosis. It seems to me (that the people closest to you) are entitled to participate in the decision. The life doesn’t belong only to the person with the body the heart is beating inside of — it also belongs to people that person has a certain type of relationship with. I don’t think that means that you take votes. It means that you need to take their perspectives seriously, that they are meaningful.

I don’t think I would have thought that had I not seen the dynamic where Peter felt sometimes frustrated, sometimes angry that there were other people with points of view, that they should be part the calculation about what type of therapies he would undergo. In the end, (my father-in-law) pretty much did everything that his wife and daughter wanted.

Your father-in-law’s difficult death, putting your dog Winona to sleep — have these experiences changed your mind about assisted suicide?

I really don’t know how I feel about it now. It wasn’t clear to me that it was the right time for either Peter or Winona to die, but especially Winona. I think I was misled into the clarity of (putting Winona to sleep) by the death of my previous dog, who died of spinal cancer. She couldn’t stand up or eat and was in all this pain. Because that decision had clarity to me, I made the mistake of generalizing from it —“Oh, well, it’s always going to be clear to me when it is time for somebody I love to stop the struggle.” What I learned is that’s not really true.

Does that mean I’m against assisted suicide? I don’t know. It means that I have a much deeper understanding than I did about the lack of clarity that can present itself at the moment that decision is being made.

Your son, Lincoln, now 13, is a vivid character in both The Autobiography of an Execution and your new book. He seems remarkably optimistic even though he lives with a father whose career is consumed with tragedy. Is this still the case?

My wife and I recently had Lincoln’s parent-teacher conference. Once they expressed that he was a well-centered, even-keeled kid, that was all I needed to hear. I was elated. From the time he was old enough to actually communicate using words, I have been very direct with him about what I do and why I do it and what my clients did. It seems to have been good for him in the sense that he has an awareness in the way that most 13-year-olds from middle-class white households like ours don’t.

(He knows) how lucky he is and I am and his mom is. I tell him about the circumstances my clients grew up in and how it is they came to do what they did, or at least how I think they came to do what they did, and how what they did destroyed another family.

Are you using your books as a subtle way to change people’s minds about the death penalty?

I certainly have not done that consciously. I think that what comes through in the book is that I am somebody who has changed his views about a number of things, including the death penalty. When I started representing people on Death Row, I was not against the death penalty. Now, I did not think my own clients should be executed, and I did everything I could to try and save them. Two things happened.

The first thing is what I generally refer to as my lawyer moment. I realized that there was no way to prevent the system from discriminating on the basis of socioeconomic status and race. If one supports the death penalty, one is supporting a system where black life is cheaper than white life and where poor people’s lives are cheaper than rich people’s lives. The lawyer in me found that unacceptable and intolerable. From that moment on, I was against the death penalty.

And the next thing that happened was I began to develop relationships with my clients. The first couple of cases that I worked on, I didn’t have relationships with my clients. In retrospect, the reason I didn’t was a defense mechanism. For whatever reasons, that defense mechanism went away, or I let it go away.

Once I knew my clients in a real deep and human way, there was just no way I could support the death penalty. What I think I had focused on earlier in my life, which is what I think most death penalty lawyers focus on, is the horrible thing those people have done. It’s appropriate, but there are other things about them. And once you know those other things, and by knowing, I don’t mean intellectually, I mean you experience them — you’ve gone to the house where they grew up, you’ve had coffee with their kids or parents or siblings — you view the people in prison as human beings who did a horrible thing rather than just as a horrible thing.

In November, former Texas prosecutor Ken Anderson was sent to prison for 10 days and lost his license to practice law after being accused of evidence tampering in a case that put Michael Morton, an innocent man accused of beating his wife to death, in prison for 25 years. Would you say that this kind of prosecutorial misconduct is common?

I would say that is not uncommon. I wouldn’t say it is the norm, but it happens pretty regularly. Once you’ve committed to a narrative before the evidence warrants, it is easy to make the mistake that Anderson made or, for that matter, any other prosecutor could make. I think that phenomenon far more than malice is the reason that most prosecutors don’t give things to defense lawyers that they should.

This may put me in bad stead with some of my fellow death penalty lawyers, but I don’t have the view that there are prosecutors out there running around intentionally trying to convict people they don’t actually think are guilty just because they think the person is a bad person. What is common is that prosecutors, like all human beings, get committed to a narrative before the evidence justifies it, and then, as a result of that, distort the other facts and data to make it fit. I think that’s what happened in the Michael Morton case. I think that’s what happened where there’s been a wrongful conviction.

Do you see a day when the death penalty will be abolished in Texas?

Absolutely. I mean, it won’t be because of moral reasons. It will be because the economics of the death penalty are ridiculous.

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