Wait, Wait ... Please Tell Us!

The Autobiography of an Execution, the new book by University of Houston law professor David Dow, received a light going-over by Dahlia Lithwick in last Sunday’s New York Times Book Review. It was an odd review. Lithwick, who reports on the Supreme Court and legal issues for Slate, appears to share Dow’s anti-death penalty views. And she seems to like Dow himself, at least at a critical remove, especially what she deems to be his regular-guyness. Not only, reports Lithwick (a graduate of Yale and Stanford Law), is Dow “a far cry from a shouting lunatic,” he’s also

... the farthest thing from a bleeding-heart abolitionist. He has a pickup truck, a taste for bourbon and a dog.

He’s got a dog? Damn, he’s a regular redneck!

And:

You’ll find Dow at least three stops past the Clint Eastwood mile marker on the Flinty Guy Highway. He is so bare-bones he won’t even use quotation marks.

Lithwick also seems to like Dow’s book, or the idea of Dow’s book, but there’s something about it that left her obviously uneasy, a matter to which she devoted the lower one-third of her review. Other reviews also have mentioned this rather large problem, although we’ve seen none that addressed it with anything near Lithwick’s intellectual honesty, so we’ll quote her at length here, despite the lapse in taste and tone at the conclusion of the passage:

Nobody but Dow could have told Dow’s story. The problem is, he cannot fully tell it either. As he explains in an author’s note at the start of the book, the demands of ­attorney-client confidentiality have forced him to use pseudonyms, attribute procedural details of certain cases to other cases, and alter the timing of some events, though he insists that the “basic chronology” is correct — and that he never changed the facts of the crimes. His publisher appends a letter explaining why this was done and a memorandum from an ethics professor explaining the legal basis for this choice. Whatever the legal issues, the result is a book that is less an autobiography of an execution than a powerful collage of the life of a death penalty lawyer.

In describing the fraught relationship between law and truth, Dow laments the fact that when it comes to the law, “the facts matter, but the story matters more.” But having created a brilliant, heart-rending book that can’t be properly fact-checked, Dow almost seems to have joined the ranks of people who will privilege emotion over detail, and narrative over precision.

For those who already oppose the death penalty, Dow’s book provides searing confirmation of what they already know to be true: the capital system is biased, reckless and inhuman. But had a prosecutor written a book arguing that the machinery of death is fantastic, just trust him, Dow himself would weep for strict adherence to facts, however ungainly. We’ve seen too many books lately suggesting that facts and sourcing matter little. It isn’t a trend to which lawyers should contribute.

Perhaps Dow just doesn’t care. He describes the impotence of witnessing the last breath of an innocent client: “I stood there. I was idle. I was a man making phone calls, a wordsmith, a debater, an analyst.” His book — not quite fact but not quite fiction — may be another lifeline back from a kind of helplessness that is its own death chamber.*

Hmm. Not quite fact but not quite fiction. "Faction," perhaps? This refusal to actually name names, as they used to say in the newspaper business, strikes us as a very peculiar conceit coming from a vigorous anti-death penalty advocate, even one who eschews quotation marks, since one of the objections raised to executions and by the defense bar in general is the elusiveness of witnesses’ memory and the (yes, proven) sometimes unreliability of eyewitness testimony. Not to mention the roundhouse accusation that politically pressed prosecutors ignore inconvenient facts and construct false narratives to assign guilt to a seemingly randomly selected capital defendants. (We’re not saying that’s outside the realm of possibility.)

You would presume that Dow has written his book to influence, or at least be considered in, the never-receding debate over capital punishment, despite the portion––and Lithwick suggests it’s a too-sizable one––the author devotes to chronicling T-ball with his 6-year-old son and recording how much bourbon and steak and how many cigars he's consumed. (We haven’t read the book, so we’re relying on Lithwick here.) But if there’s no possibility of fact-checking by an opponent, or even a reviewer, or any third party, what’s the point in the first place, other than the pursuit of self-glorification on the Flinty Guy Highway?

So readers must take The Autobiography of an Execution on faith. They should be cautioned, however, that at least a few of Dow’s “facts,” when tested in an adversarial proceeding by a much more seasoned and equally vigorous advocate, did not fully hold up.

*Ugh.