Interview with Arthur "Cappy" Eads

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Table of contents 
  •   D.A. and his influences  
  •   Legislation on criminal justice issues  
  •   Factors in capital punishment cases  
  •  Barefoot Case
  •  Hypothetical questioning in criminal cases like Barefoot
     
  •   Involvement with victim’s rights organizations  
  • Transcript 
    •  MAURICE CHAMMAH: —name is "Cappy" Eads. This is Maurice Chammah conducting the interview and Sabina Hinz-Foley is behind the camera, and I guess if we just want to begin, if you would like to tell us a little bit about your background, where you grew up, what led you to law. 
    •  ARTHUR EADS: Okay. Okay. I was born in Belton, Texas, seven miles from where we are. I spent my early childhood in Belton, but actually moved to Dallas, was raised in Dallas, went to Dallas schools, graduated from S.M.U., then went to Baylor Law School, and back to Belton. 
    •  I was just gonna come through Belton and temporarily practice law for a little while, with the D.A.'s office, and kinda stuck and the D.A. didn't run for election and decided to do that, did that, and stayed thirty years. That's about it. 
    •  CHAMMAH: Straight on. So, I guess if you want to tell us a little bit about what it was like to come on at that point as D.A. 
    •  EADS: To be D.A.? 
    •  CHAMMAH: To start out at that young age. 
    •  EADS: I started being D.A., I was elected in 1976, and there is quite a difference between rural D.A.s and metropolitan D.A.', big city D.A.s. This state has been extremely fortunate in that we have had real lions as metropolitan D.A.s, that have really been leaders of all the other D.A.s in Texas, big, small. 
    •  They're no longer in office, but their legends kind of live forever, their legacies live forever, their practices, their influence. Certainly one, at the time I started, was Henry Wade in Dallas. Tim Curry was the long time D.A. in Fort Worth, and Carol Vance was the long time D.A. in Houston. 
    •  They are all icons, and they really set the stage, I think, back in the early to late sixties and early seventies for how D.A.s should conduct themselves, what they should be, what they should aspire to be, and set the example for us to follow for forever. And we did, the entire time that I was in office. 
    •  But your exposure to those kind of people greatly influences how you think about prosecution, how you feel about criminal justice, your decision-making process, how the D.A. fits into the courthouse, political academia, if you will. 
    •  CHAMMAH: And I guess tell me a little about that decision-making process. What are some of the things these big city D.A.s did that then- ? 
    •  EADS: Well big city D.A. s are first of all, are faced with more numerous decisions than small town D.A.s, but not more important. The small town D.A. has to make the same life effecting decisions as metropolitan D.A.s.  
    •  Maybe not as often, but quite often the decision has more impact than the metropolitan, personally, and on the office, and definitely on the community.If a big city D.A. makes a decision in Houston or Dallas, it's important, but if a small town D.A. in Belton or McKinney makes a decision, the whole community is aware of it and affected. So maybe less in number, but no less in importance. 
    •  But I think because they have so many to make, that the small town D.A. can benefit from the experience of the big city D.A. 







      And Mr. Wade and Mr. Vance and Mr. Curry were always disposed to work with those of us who were in smaller jurisdictions, and give us the benefit of their experience, and help us. We'll always be grateful to them. 
    •  CHAMMAH: And what were the contexts in which you were working with them? Was this with the T.D.C.A.A.? Or was it less official? 
    •  EADS: Well, a lot of it was through the D.A.'s association, interacting at meetings, board meetings, and that sort of thing. That was a more formal basis. But if you had a, I don't want to say a personal problem, let's say you have a unique office problem, you had a unique case that came along that you were a little undecided what factors played where.  
    •  You could always go talk to those guys.They were a great resource. They were unable to tell you the answer, and did not want to tell you the answer, but were able to give you the benefit of their experience that would make your decision-making process easier. 
    •  And the bigger the case, the more true that is. Experience is a wonderful thing. And sometimes you just have to set pride aside, and look to others' experience to help you do your job. Particularly if you're a young D.A., a new D.A., it's an awesome responsibility. 
    •  And whether you have two people working for you, or thirty-five, or four hundred, your decision affects everybody in that office, it affects everybody in the courthouse, it affects everybody in the criminal justice system. It affects the community. Oftentimes it can affect the state and the nation, if you have a big enough case, so you want to be sure that you're as right as possible, when you start, because you have with that decision for a long time. 
    •  CHAMMAH: And in the context of working with these several big city D.A.s, were there striking differences between them? Would you get conflicting advice ever? 
    •  EADS: Well they all had different leadership techniques, but their similarities were more striking than their differences. The similarities they had in leadership, the similarities they had in pride of purpose, the similarities they had in respect to the commitment in what they did, and how important the old adage of truth, justice, and the American way were. 
    •  I mean that's what these guys were about, and there maybe a certain amount of emulation for younger D.A.s, but that's a mantle they took and then passed on. Their similarities were striking. More striking than their differences. Their management skills were different, but you could pick up from each one, and they would pass that on, and you'd pick up some of that. 
    •  CHAMMAH: And I guess if you want to tell me about some of the, more specific, what was Henry Wade like? Tim Curry? 
    •  EADS: Well, Tim was a very laid-back guy. My perception of Tim, he was laid-back. He didn't rush to judgment. He was a man of cool reflection. He did everything every thought, which I think you picked up from Tim, the importance of patience. 







      Henry Wade, on the other hand, was a "damn the torpedoes, full speed ahead." He was confident. He was aggressive. He had a staff that was magnificent. And Henry Wade didn't live in doubt very often. And I think it was that decisiveness that you took away, the need for self-confidence that you can't govern by committee. There's only one D.A. There may be fifty judges in a community, but there's only one D.A. 
    •  Carol Vance was a great organizer. He had the ability to assemble his office in such a manner to where it was a Roman phalanx. He had an ability to take that many people, fit all those pieces together, and he passed that on, of how to organize and get your office ready for the onslaught that you were fixing' to face for the next thirty years, which was fighting crime, which never stops, never sleeps, never rests. 
    •  And you've got to be continually ready. I think Carol Vance was the master of hiring highly skilled people, and the ability to match the place in his office where they belonged. To not only maximize what their ability was, but what they could give back to the office. Unparalleled skill. He was the best at that and the law firm he's with now, probably is there now too. So,  each one gives you something different. 
    •  CHAMMAH: And how did you manage all those influences? 
    •  EADS: Well, I don't know that you purposely manage those. As a matter of fact, I'm not even too sure at the time you recognize what they are. With age and reflection, you do. But at the time, I don't think you do. I think that, I oftentimes would talk to those men, and you're inspired. You're in awe, and you might take away one tenth of what they say, just one tenth of what they say, but oftentimes that's enough. Oftentimes that's enough. 
    •  They teach you things that law school can't teach you, and they teach you there are times when you're going to get knocked down, you're going to get beat.They're going to teach you that politics is a tough sport. They're going to teach you that you have to balance between what's right and what's politics, and that what's right always wins. It's a political office. You run for D.A., like you do any other political office, but you can't do political favors. What's right's right and what's wrong's wrong 
    •  And oftentimes you will upset people, make people mad, because your duty is to follow the law. And sometimes that's tough, a tough call; when to prosecute, when not to prosecute, when to take it to a grand jury, when not to. Influential people's sons, daughters, brothers, sisters, you don't make many friends when you do that, but that's what you're elected to do. It's a great job, but one that's behind me and not in front of me. 
    •  CHAMMAH: I guess I'm curious to hear a little more about that balance between the politics and what you feel is right, or the law end of it. When you were trying to balance them, how often were you up for reelection? 
    •  EADS: Every four years. 
    •  CHAMMAH: And would things change as those reelection dates came closer? 
    •  EADS: Sure, sure. They changed in my perspective, when I first ran for political office, I don't think anybody in my county even knew what a Republican was. By the time I left office, I was the last Democrat left standing. I was the only one. So that landscape changed.Every statewide public office holder in Texas was a Republican when I left office. When I entered office, there were no statewide elected officials. So when I would go to office, to testify on legislation, or work on legislation, it was most likely with other Democrats. Later in my career it was always with Republicans. 
    •  What does that change, except schematically, I'm not too sure, but the philosophies change, conservative/liberal philosophy changed, the perception of criminal justice changed. We went through those periods of time, heavy on rehab, to lock them up and throw away the key, to who cares what it costs, lock them up, keep 'em forever, rehab's a sissy game. And you go through those ebbs and flows with the legislature in criminal justice, because criminal justice doesn't pay for itself. It bleeds and sucks tax dollars, very expensively, so it's a difficult animal to get a hold of for legislators. Because the public hue and cry is always lock 'em up. 
    •  CHAMMAH: Is always? 
    •  EADS: Lock 'em up. Lock 'em up forever. Then they stop and think, "What does it cost to lock them up forever? Do we need to be locking people up forever for a small amount of drugs? Or is it the right thing?" The great debate between legalizing drugs. Those are all things that cycle through the legislature every session. As a D.A. you're called upon as a resource to give your opinion and the value of your experience in handling those kinds of cases. So that changed over the years. The role of politics hasn't changed. 
    •  Tip O'Neill says, "All politics are local." I mean you get out, you hand out cards, you put up billboards, and you're running like every other politician. But you're different - Anybody who runs for office is a politician. I don't care what they tell you. They're a politician.But there are different kinds of political office, and a D.A. is that kind of political office that doesn't serve politics.A judge doesn't serve politics. A judge serves the law. And a judge is a tough job. You've got to make calls every day. I don't see how they do it. 
    •   At one time I thought I wanted to be a judge, a state district judge.I changed my mind. Being a D.A. was easier for me. I could see the light better. I did not have to negotiate. I didn't have to mediate my principles. I knew what I thought was right, and that was what I was going to do. If the jury agreed, fine. If they didn't agree, fine. They'd tell me in four years. My jury was always out, every four years. 
    •  CHAMMAH: And did that ebbing and flowing of perspectives on criminal justice come back from Austin here, in terms of the way you approached your work? Did it have an effect on you the other way? 
    •  EADS: I don't know. I don't know. You know the main thing I think has an effect on you, life's cumulative. We're the total sum of our experience, bad and good, and I found that the older you get, the experiences mean more to you. I think what affects you the most is your day to day experience.The thing that affected me the most as a D.A. was dealing with the victims of crime. It was "mano a mano." It was me and the victim, and after thirty years, you come to realize it's time to leave. 
    •   I can't do it anymore. It becomes difficult to separate your emotional being from the fact-finder, to be emotionally detached, but emotionally involved in the case. You don't want your heart surgeon crying over a missed stitch, and unable to see the next stitch. You don't want your lawyer, or your D.A., to become so emotionally involved that it affects their judgment on what they have to do next, or what's the best way to do it, or what witness should you call.







       
    •  That guy's got to have the eye of the tiger all of the time, no matter what kind of emotion he's surrounded by, or what kind of emotional setting he's in.It's tough when you walk into a courtroom, and you have four hundred people in the courtroom, and people are crying, and they're moaning, and the gnashin' teeth, and they're upset. And it's this boiling pot of human grief. And to remain detached from that, and pursue something in a reasonable line of questioning, so that a jury can understand what you're doing. 
    •  That's the tough part. And not to do it once, or twice, but every time. Because as D.A. people will not tolerate failure. They won't tolerate it. They don't want a D.A. that loses, won't tolerate a D.A. that loses. That's not to say they don't understand if you go into a tough case. I give the public more credit than that.But you know what I'm saying. They want Dick Tracy. They want someone whose going to go out there and get it on. 
    •   It's like telling Babe Ruth, "You hit a home run every time. Not once. Every time. And then in four years we'll let you know if we want you back." I think that wears on you, the personal experience wears on you. No job in the world like it though, no job in the world like it. 
    •  CHAMMAH: So, in Bell County, were you first-chairing most of the sort of harder, tougher, bigger cases? 
    •  EADS: When I first started, when my office was smaller, I was involved in virtually every case. When I say major: first-degree felonies, murders, rapes, aggravated robberies, those kinds of things. As my office grew, as I got more assistance, as I got more staff, then certainly your participation at the trial level declines some, because your administrative duties began to increase, to where your staff gets to be thirty-five or forty lawyers, ninety-five percent of your time is to administrate that office. 
    •  You have great lawyers. You hire them to go do a job, and the better you are, the better they are. And quality begets quality. You have an office with high quality lawyers, other high quality lawyers want to go to work there. So, that's what you strive to do.That's the Carol Vance theory of being a good D.A., is you hire good people and leave them alone, you let them do their job. That's what I tried to do. 
    •  But, at the same time, regardless of the size of your office, there are some cases that come along, that demand that the elected public official go do it. You know what they are. And they don't have to be death penalty cases. It can be a prominent figure's son or daughter or somebody. You have got to go take that bullet. The public demands that. So I do those.







      Primarily, in my later years as D.A., I was pretty well confined to death penalty cases. 
    •  CHAMMAH: Which, in the course of your time as D.A., were there more, were there less? How did that change over the course of your entire career? Or was it consistent? 
    •  EADS: You know, I don't think at the time I noticed we'd have more death penalty cases than any other time. You know, a death penalty case is a very unique animal. It's unique in the criminal justice system to any other type case. No other case like it, because in a capital murder case, in a death penalty case, you have two factors involved, not just one. In almost any other case, you have the factor of, Did the defendant do it? Did the defendant do it?And if so, what's the proper punishment. 
    •  In a death penalty case, that's not true. In a death penalty case, you have two factors involved, primarily two facts; Did the defendant do it? And, Is there a probability that he will continue to commit future acts of violence. Those two factors are what death-qualify that person. When I say death-qualify, that doesn't mean when you have those two factors present you necessarily seek the death penalty. And speaking of the responsibility of the D.A., who decides if you're going to seek the death penalty? Do you have a committee in your office? Do you have the Chamber of Commerce- let them decide? It's your call. 
    •  You have to make that decision, and there are going to people that don't agree with you. There are going to be people that say, "I think in that case you should have sought the death penalty and you didn't." Then they want to know why, or there are going to be those cases why you did. They're going to say, "I don't think you should have. You justify to me why you did." You've got to kind of be prepared for that, because you know that's coming, but those are tough calls, discretionary calls. The law doesn't say, "If this fact is present and this fact is present, you will seek the death penalty." That's easy, man. That's easy. The decision is made for you. Monkeys can make those kinds of decisions. 
    •  But you see, being D.A. is different. You've got to make that call. And you've kind of got to standardize your mental process, to where certain things are present.Each time one of those things is present, it raises the level of awareness of whether you think you ought to seek the death penalty. It's not just high profile. I mean, I tried death penalty cases against defendants who nobody ever heard of before or since, but in my opinion, were deserving of the death penalty, and that's why I sought it. So, you have criteria, and those criteria apply across the board, whether in San Antonio or Houston or Lampasas or wherever. 
    •  
    •  CHAMMAH: These are criteria that you develop for yourself? 
    •  EADS: No, by statute. I mean you have to look at the continuing threat, what's admissible as evidence to show continuing threat, what can you get into evidence, what kind of slug are you dealing with? Is he probably a one-time murderer? Was the murder so heinous, in and of itself that it screams for the death penalty? Is the community outraged? Or is it a murder? Murder's bad. I'm not trying to minimize it, but you've got murder, and then you've got really bad murder. So you look at that. 
    •  I mean is it shot between the eyes at a bar, or is it double axe, fifty times, chop the head off after the arms and fingers, that's murder.So you look at the egregious nature of the offense itself, its effect on the community. Then you look at the defendant. Is the defendant somebody hopped up on drugs, never been in trouble before, and just goes ape crazy, but not crazy in the legal sense? Or a bar room fight that gets out of control? Or a temper that finally goes over the edge? What drives people? Are they likely to do that again? Have they ever done anything like that? 
    •  Then there's a difference between somebody who is historically, in their past, is in trouble time and time and time and time again and every time it's an act involving physical violence that has now escalated to a point of egregious murder. Once those two factors start to come together, then you've got the death-qualified defendant. Then you've got to decide whether we're going to seek the death penalty. 
    •  Is it that type of case? And although it's a terrible standard, and subject to a lot of debate and abuse, I know - I know many defense attorneys would love to hear me say this, but you know in your heart of hearts. You know in your gut. You know if it's a death penalty case.Just as much I think as you know it's not. You can't just run around seeking the death penalty because it's high profile, front page, make you look good. I wouldn't give you a hoot in hell for a D.A. like that. Not doing his job. It's the most awesome responsibility you can give another human being, to make that decision, and you lay in bed and worry about it.







       
    •  You consult with the victim's family.You talk to others in your office, not to have them tell you what to do, but as I said before, to get the power of their advice, how do they feel about it? Then you have to go off and you've got to sit in the corner, and you've got to decide. And when you come out of that corner buddy, it's you versus everybody. There's no surrender. I don't care who you're up against. I don't care what town or city you live in. Let's get it on. That's what it is. 
    •  CHAMMAH: Tell me about that decision making process. What all goes through your mind, other than the factors, what are the things that influence your gut? 
    •  EADS: Oh you do as much as you can to be sure that you're right, be sure it's the right thing to do. I would try to look at the end game in a death penalty case. I came to the conclusion that any death penalty case, if the defendant has the very best lawyers possible, and the very best prosecutor possible and the very best judge possible, and a  responsible jury, that that defendant is going to receive the death penalty, because he is in fact deserving. 
    •  And if he received the death penalty, with that quality of case of characters in the courtroom, it's not going to be reversed. If it's not going to be reversed, someone is going to do. Someone is going to die.So I think that by looking in the very beginning, it helps you to realize, when you stand up that first day in front of that jury panel, this is not a game. We are in here to determine if someone is going to die, and you try to answer yourself, is the world a better place, has justice been served, because this person no longer lives, and dies for that act. 
    •  That's what you try to answer, and if your conclusion is yes, then I think you can go forward, because the time will come where you'll receive a call from the governor, or someone the night of execution, who'll say, "Do you know of any reason, do you know of any reason why this person should not be executed?" Now man, let me tell you something. It's a serious question. I don't care how egregious the defendant in, think about being asked that question. It's not a question that you flippantly roll off the top of your head.You stop and you really think to yourself. It's a decision you're going to have to live with forever, so you want to be sure. 
    •  There are arguments, where people will say,  "Well, I didn't give him the death penalty. The jury did." Yeah, well come on. I'm the one that talked to the jury for three hours. You can't pass the buck that way. If you lose, you can't say, "Well the jury found him not guilty, not me." You lose, you lose, buddy. And death penalty cases, juries don't follow beyond a reasonable doubt. Juries in death penalty cases, they want to know beyond any doubt, whatsoever on God's green earth, that man is guilty.You've got a greater burden. They won't tell you that, but that beyond a reasonable doubt doesn't float in a death penalty case. 
    •  They want to know for sure before they send someone to death. I would want to know for sure. So would you. I don't want some defense attorney standing up there, saying, "Isn't it reasonable that, you could reasonably doubt that -" Not gonna drop the bullet. There's a lot of pressure in a death penalty case. If you lose, you've got a lot of explaining to do. Especially if you lose on guilt or innocence. A death penalty case, on guilt or innocence, ought to be a slam-dunk. It ought to be a foregone conclusion. You're in there, in that trial, to try to issue death. That's the issue, from the very beginning.  
    •  The defense attorney knows that. They're not fools. We've got some good ones, boy, they'll tear you up if you're not careful. They're eat your lunch. But they know what's going on. They're not going to look foolish, trying to find someone not guilty on some fabricated defense they know is not going to float, and then expect their credibility to be on the line when they're talking about life or death. They know where to expend their bullets. And believe, man. I'm telling you, there are some good ones. 
    •  CHAMMAH:Tell me about some of those good ones. What's their -? 
    •  EADS: Oh by name, most of them are my age now. Defense attorneys I admire greatly. I really do. People find it tough, you can fight somebody in a courtroom and then go out and have a beer with them later. I don't find that tough at all. You're professionals. That's what you do. But, a defense attorney has got to be able to set aside a lot of his personal feelings, and try a case on the principles of law. The defense attorney's job is to make me do mine. If he lets me slack on my job, he's not doing his job. 
    •  Make things as tough on me as possible. Reasonable, but tough. Hold me to the standard. Because D.A.s go in there and say, "I expect to prove him guilty."







      If I'm a defense attorney then I'm going to stand up and say, "Then you prove it, big dog. That's why we're here. You have to go through me."Good defense attorneys reek of self-confidence. Not boastfulness, not cockiness. They are quietly reassured that they are very good, and they'll let you know that. 
    •  The better ones don't even have to tell you. You know it by being around them, and they can shake your confidence a little bit. You've got to be sure to get a handle on yourself, be sure that man, if I step into the arena with guy, I'm going to be able to hold my own. And you're going against some old grizzly bear whose been doing this for thirty years, this is your first year as D.A., and he's sittin' there for you, boy. You can't lose.There's no second chance at being D.A. You cannot lose. It's not an option. 
    •  You can't pass off the excuse, "Well he's a good defense attorney."







      Lots of luck at the election booth. So there's a lot of "mano a mano." A lot of lawyers are peacocks. At least they admit it. But I don't want that kind of lawyer. I want a lawyer whose as sure as me and everyone around me, that's good. I want that. I don't want My Cousin Vinny, you know? 
    •  CHAMMAH: So I understand how that system plays out, especially in terms of long time professional defense attorneys, who are well respected, like in Harris County, for example. But how did that play out in Bell County? 
    •  EADS: A lot of times in rural counties, big city D.A.s, lawyers, will come down and they're dealing with country bumpkins, rural people, so I've always used that to my advantage. I went to law school just like they did. But particularly out of state, big city D.A.s, Ivy League, Ivy League lawyers, try me on. That's all I can tell you. So you can use that to your advantage, I think. That's overconfidence. That's false confidence.







       
    •  Those aren't particularly good lawyers, lit on somebody else's fumes, you know. But big city lawyers, by and large, have a lot of experience.Now civil lawyers, from these big, deep carpet law firms, they think, "Boy keep out of it. We're going to have to go to trial." That's what I thought we did for a living, we tried cases. Some of those firms, they don't go to trial once every ten years. A D.A. in a small town is in trial every ten days. They're not going to run him off with that kind of foolishness. We all buy our blue suits at the same place. 
    •  CHAMMAH: So tell me how this all played out more specifically in a case, like Barefoot, as this proceeded all the way from the trial, to - 
    •  SABINA HINZ-FOLEY: Can we hold on a second? I'm going to try to ask if I can close that door. 
    •  EADS: Yeah, why don't you go back there and -







      [Tape cuts] 
    •  CHAMMAH: I'm just curious about— 
    •  EADS: What made Barefootso different? 
    •  CHAMMAH: What made it so different that is passed the trial to get all the way - 
    •  EADS: I gotcha. 
    •  CHAMMAH: That whole experience. Why Barefoot
    •  EADS: It's an interesting experience. So with that question we know we're starting in the right place. Barefootwas an interesting proposition, because the Barefootcase was not remarkable in its fact situation. By that, let me explain what I mean. It was a bad case, and a case deserving of the death penalty.But Barefootwould not be that kind of case that would grab your attention if you're at home at night, thinking, "I'm going to follow the O.J. case. I'm going to follow the Barefootcase." It's not that kind of case. It was a case where a slug, Thomas Barefoot, with a long criminal record, and deserving of the death penalty, escapee from Valencia County Jail in New Mexico, child molester, numerous run-ins with the law, murder a police officer: death penalty. 
    •  But it was a case that had a particularly unique legal question in the body of the case, and without going into ad nauseum, the legal question was whether or not a hypothetical question could be used, of an expert, upon which that expert could base him opinion as to the issue of future dangerousness. That was the question.







      In all past capital cases, the defendant had been interviewed by, say, a psychiatrist or psychologist, or someone in the mental health field. And based upon that determination, or based upon that patient evaluation, that expert was able to give a medical opinion as to whether or not he felt, in his medical opinion, that the defendant would continue to be a threat, which would give the jury sustainable legal evidence, upon which to base a death penalty verdict. 
    •  But those cases, those line of cases, with direct questioning of the defendant by a psychiatrist, were overruled, and ruled as unconstitutional, because the defendant was not made aware of the right to remain silent on these issues. So that whole line of thinking was in one fell swoop, out the window. So how are we going to do the issue of future dangerousness?







      What we did in Barefootwas, the psychiatrist didn't go interview the defendant, but we gave the psychiatrist a detailed portrait of the defendant, based upon facts that had been admitted into evidence. And based upon those facts, hypothetically ask you, assuming that to be true, what is your medical opinion?







      And they gave their answer. It was that issue, that one issue, upon which the United States Supreme Court agreed to hear the Barefootcase. 
    •  So what it did, it removed Barefootfrom the body politic of all these case, and made it unique because it had a very, very unique legal question involved that would affect not only the Barefootcase, but virtually every other death penalty case that was tried in Texas, or around the United States. A very unique question, and we argued that case in front of the United States Supreme Court, I think in 1987. And the Supreme Court said you could do it, it was affirmed, and Barefootwas executed. 
    •  Now I don't know today how often it's used, but it's acceptable to do it. I assume it's used. I used it in death penalty cases after that. But that's what made Barefootunique. Now, the way that affected me was that I happened to be the prosecutor in the Barefootcase, and, just like the facts of the Barefootcase, not of my uniqueness or my particular skill or- I just happened to be the one that asked the question. My office happened to be the one that came up with the idea, let's ask him a hypothetical. 
    •  But because of that, it elevated us, along with the issue, through the morass of the criminal justice system. It exposed us to the American Bar Association. It exposed us to the National D.A.'s Association. It exposed us to the National Organization of Criminal Defense Lawyers. It exposed us to Amnesty International. It exposed us to all types of criminal justice organizations that wanted to hear peoples' opinions with regard to the death penalty or the issues 
    •  For me personally, it was an eye-opening experience, because I was able to be able to stage, if you will, a normally overruled D.A. a chance to go do, a really unique experience, to get to go to Washington, sit in the Supreme Court, testify before Congress. My trampoline threw me higher than it ever had before, to such an extent that it's probably very difficult for me to adjust, because I was not used to that atmosphere But that's what was unique about Barefoot. That's what made Barefootunique in my life. 
    •  Plus, plus I had a wonderful and unique relationship with the victim's family in that case, and became very close with his family, the police officer's family. And out of Barefootgrew the whole concept of, "Victims are people too."







      We have to pay attention to victims' families and their rights, and what their rights should be, and how we treat victims, and don't treat them as evidentiary baggage to be summoned to the court at the last minute. It became part of the process of the whole victims' rights movement, and we became very involved in national victims' rights organizations, because very involved in D.A.s getting victim-witness coordinators into their offices. I don't mean that I did it all, because a lot of D.A.s did, but I think it elevated the awareness, to where many D.A.s that had that capability began to do it, and do a great job of it, to where today I think that seed has given fold to a lot of good things, to where we are very aware of victim's rights. I think that all came out of Barefoot. 
    •    CHAMMAH: So tell me about the relationship with that family. 
    •  EADS: Well, you know, that case was on appeal for ten years, so you go from, "It's affirmed. We've got a new execution date," to "Nope, execution date's off, it's been appealed again," "Got a new execution date," "Nope, it's been appealed, it's off again." For ten years, this family went up and down this writ of habeas corpus emotional roller coaster. The kids grew up, they got older, they wanted to know what's going on. Why is this guy, who received the death penalty ten years ago, still alive? What's going on? So at every step of the way you had not only the obligation, but the opportunity to explain that. Most of which, I didn't understand. I mean for the first time, I was begin drug through the federal process. I didn't know anything about the federal process. 
    •  That's when I ran into people like Doug Becker, at the Attorney General's office, and these great lawyers, they handle that part of it, and took us country bumpkins along, the trial lawyers. We hire appellate lawyers to wear bow ties and think with big heads, but we're just trial lawyers.  But it drug us along, it drug us into that experience. It made us think about things we never thought about before, and I think made us better lawyers, to where I think later cases, death penalty cases that I was involved in, I was able to benefit from that experience; knowing what was gonna happen if it was done right, knowing what the process was, knowing what the appeal process was, how long it was going to take, being able to work with the victim's family without emotionally crashing yourself, waking up in the middle of the night and praying that you're right. "Please let me be right on this decision."







      There's nobody to ask, "Can I do this? Should I do this?" 
    •  Who are you going to ask? There's nobody. So, you become your own greatest fan. I mean, you have to be. If you have no confidence in yourself, how are others supposed to have confidence in you, that you're handling business. But not a cocky, boastful kind of confidence, but a quiet confidence that you're going to do this right, it's going to take a while, and we're going to give it our best shot, and you've got to believe in me. You've got to believe in me. In order for you to believe in me, I've got to believe in myself. In order to believe in myself, I've got to first of all make the right decision that this is what we ought to be doing. If I make the wrong decision, I've got false hope. If I make a political decision; this is would we ought to do because it looks good. You're in for trouble, boy. You're in for trouble. 
    •  If you're right, you can withstand almost any onslaught, from the press, from the public, personally, personal assaults, personal insults, but if you're playing a game, you will be found out in a death penalty case. If you're trying to trick a jury, if you're playing life or death with that jury, they're going to sense it, and they'll take your head off, and they'll take your political head off, and you'll be through as a prosecutor, because prosecutors have higher standards.They have to be right. You can't guesswork your way through being  a prosecutor. You can't guesswork your way through being a D.A. 
    •  And look at the D.A.s that have tried to do that. They're not around anymore. It's an office where the abuse of power is so, it's out there, because you have so much. You've got to learn how to use that in a respectful, dignified, understandable way, because you do have this power of taking somebody to a grand jury. "Well a grand jury, all they do is just indict. They don't find guilt or innocence."







      I tell you what. If I take you to a grand jury, you're through. I don't care if a grand jury "no bills" you. You're through. 
    •  You know that. The public knows that. Look at public officials, who have been through grand jury investigations, that it has totally destroyed careers. That's why the power of the grand jury needs to be bridled, it needs to be secret. It's not  a public exposé. The proceedings need to be in private, and handled with a great deal of respect. And good D.A.s do that. They know that.







      But abuse it, boy you're in trouble. Besides that, half the time you're in a courthouse fight. Look at the courthouse fights that go on all the time. Boy, that kind of stuff. Your business is to impart, not to put up with that, I think. 
    •  CHAMMAH: So take me back a bit to that Barefoot trial, as far these hypotheticals that became the basis for this big legal question. How did the idea of doing a hypothetical develop among your crew and also who was the expert, and how did you find him and all that? 
    •  EADS: Yeah, yeah. The idea came about because you can do it in civil cases. It's done in civil cases all the time, but it was never done in criminal cases. And I had this little appellate lawyer; I say that facetiously, I had this great guy who, diminutive, smaller person, but he just had this head on him like Mr. Peepers, you know, these glasses, and he's always twirling his hair, and he had a bow tie. 
    •  CHAMMAH: What was his name? 
    •  EADS: Ralph Petty. And Ralph Petty was brilliant, just brilliant, but was - Ralph is way out there, always way out there. He's the kind of lawyer that would get up and start arguing to a jury and forget where he was. But his mind was way beyond, it was in a place mine wasn't. He was outside the box. And Ralph comes to and says, "Look," he says, "In civil cases they can get around this because they can ask hypotheticals. Why don't we ask a hypothetical?"







      I said, "Not a bad idea. Let's think about it. Do you think we can do it?"







      He said, "Yeah, I think we can do it." 







      I said, "Well let's do it. Let's do that." 
    •  Knowing we were going to run into a lot of objections when we tried, and he and I, although after good reflection I'm sure ninety percent he, sat down and wrote this twenty page hypothetical question, you know, that began with, "Assume that the facts I'm fixin' to tell you are true. Assume that on December seventeenth, 1983, this defendant walked into a bar room and in his hip pocket he was carrying a club. Assume further that that club he was carrying was in addition to a thirty-eight caliber automatic pistol, which he was carrying in his right front pocket. Assume further that..."







      You see, it goes on and on and on and on, after the offense. "Assume further that after the shooting, this defendant takes his girlfriend and goes out and eats a hamburger with everything, and it doesn't affect his appetite a bit. Assume further that…" 
    •  You can go on, and on and on and on. You can cover every aspect of his conduct, and those aspects that you know speak to a mental state, like psychotic behavior, no remorse, total lack of guilt, non-caring, insensitive, no value for personal rights or property rights. You can cover all that, because you know the psychiatrist is going to cover that by these facts, so you can incorporate all that into that hypothetical question. 







      That was the seed of it. That's the way it came about. We got ready to pose the question, the defense attorney raised hell, as he should have, and preserved the error, upon which the case was appealed. The United States Supreme Court looked at it and said, "Why not? You do it in civil cases."







      They said it's okay, it's okay to do that. 
    •  CHAMMAH: And who was that expert in this case? Or was it just some psychiatrist? 
    •  







      EADS: It's been so long ago. The expert, I believe, was Jim Grigson. 
    •  CHAMMAH: Okay. 
    •  EADS: Who was a psychiatrist out of Dallas. I believe it was Jim Grigson. I'm not positive, but I believe it was, almost sure it was Dr. Grigson. 
    •  







      CHAMMAH: And then this appealed all the way up. Should we-







       
     

    Continue with Video 2 of the TAVP Interview with Arthur "Cappy" Eads.

    Return to TAVP Interviews.

     
 
Transcript 
  •  MAURICE CHAMMAH: —name is "Cappy" Eads. This is Maurice Chammah conducting the interview and Sabina Hinz-Foley is behind the camera, and I guess if we just want to begin, if you would like to tell us a little bit about your background, where you grew up, what led you to law. 
  •  ARTHUR EADS: Okay. Okay. I was born in Belton, Texas, seven miles from where we are. I spent my early childhood in Belton, but actually moved to Dallas, was raised in Dallas, went to Dallas schools, graduated from S.M.U., then went to Baylor Law School, and back to Belton. 
  •  I was just gonna come through Belton and temporarily practice law for a little while, with the D.A.'s office, and kinda stuck and the D.A. didn't run for election and decided to do that, did that, and stayed thirty years. That's about it. 
  •  CHAMMAH: Straight on. So, I guess if you want to tell us a little bit about what it was like to come on at that point as D.A. 
  •  EADS: To be D.A.? 
  •  CHAMMAH: To start out at that young age. 
  •  EADS: I started being D.A., I was elected in 1976, and there is quite a difference between rural D.A.s and metropolitan D.A.', big city D.A.s. This state has been extremely fortunate in that we have had real lions as metropolitan D.A.s, that have really been leaders of all the other D.A.s in Texas, big, small. 
  •  They're no longer in office, but their legends kind of live forever, their legacies live forever, their practices, their influence. Certainly one, at the time I started, was Henry Wade in Dallas. Tim Curry was the long time D.A. in Fort Worth, and Carol Vance was the long time D.A. in Houston. 
  •  They are all icons, and they really set the stage, I think, back in the early to late sixties and early seventies for how D.A.s should conduct themselves, what they should be, what they should aspire to be, and set the example for us to follow for forever. And we did, the entire time that I was in office. 
  •  But your exposure to those kind of people greatly influences how you think about prosecution, how you feel about criminal justice, your decision-making process, how the D.A. fits into the courthouse, political academia, if you will. 
  •  CHAMMAH: And I guess tell me a little about that decision-making process. What are some of the things these big city D.A.s did that then- ? 
  •  EADS: Well big city D.A. s are first of all, are faced with more numerous decisions than small town D.A.s, but not more important. The small town D.A. has to make the same life effecting decisions as metropolitan D.A.s.  
  •  Maybe not as often, but quite often the decision has more impact than the metropolitan, personally, and on the office, and definitely on the community.If a big city D.A. makes a decision in Houston or Dallas, it's important, but if a small town D.A. in Belton or McKinney makes a decision, the whole community is aware of it and affected. So maybe less in number, but no less in importance. 
  •  But I think because they have so many to make, that the small town D.A. can benefit from the experience of the big city D.A. 







    And Mr. Wade and Mr. Vance and Mr. Curry were always disposed to work with those of us who were in smaller jurisdictions, and give us the benefit of their experience, and help us. We'll always be grateful to them. 
  •  CHAMMAH: And what were the contexts in which you were working with them? Was this with the T.D.C.A.A.? Or was it less official? 
  •  EADS: Well, a lot of it was through the D.A.'s association, interacting at meetings, board meetings, and that sort of thing. That was a more formal basis. But if you had a, I don't want to say a personal problem, let's say you have a unique office problem, you had a unique case that came along that you were a little undecided what factors played where.  
  •  You could always go talk to those guys.They were a great resource. They were unable to tell you the answer, and did not want to tell you the answer, but were able to give you the benefit of their experience that would make your decision-making process easier. 
  •  And the bigger the case, the more true that is. Experience is a wonderful thing. And sometimes you just have to set pride aside, and look to others' experience to help you do your job. Particularly if you're a young D.A., a new D.A., it's an awesome responsibility. 
  •  And whether you have two people working for you, or thirty-five, or four hundred, your decision affects everybody in that office, it affects everybody in the courthouse, it affects everybody in the criminal justice system. It affects the community. Oftentimes it can affect the state and the nation, if you have a big enough case, so you want to be sure that you're as right as possible, when you start, because you have with that decision for a long time. 
  •  CHAMMAH: And in the context of working with these several big city D.A.s, were there striking differences between them? Would you get conflicting advice ever? 
  •  EADS: Well they all had different leadership techniques, but their similarities were more striking than their differences. The similarities they had in leadership, the similarities they had in pride of purpose, the similarities they had in respect to the commitment in what they did, and how important the old adage of truth, justice, and the American way were. 
  •  I mean that's what these guys were about, and there maybe a certain amount of emulation for younger D.A.s, but that's a mantle they took and then passed on. Their similarities were striking. More striking than their differences. Their management skills were different, but you could pick up from each one, and they would pass that on, and you'd pick up some of that. 
  •  CHAMMAH: And I guess if you want to tell me about some of the, more specific, what was Henry Wade like? Tim Curry? 
  •  EADS: Well, Tim was a very laid-back guy. My perception of Tim, he was laid-back. He didn't rush to judgment. He was a man of cool reflection. He did everything every thought, which I think you picked up from Tim, the importance of patience. 







    Henry Wade, on the other hand, was a "damn the torpedoes, full speed ahead." He was confident. He was aggressive. He had a staff that was magnificent. And Henry Wade didn't live in doubt very often. And I think it was that decisiveness that you took away, the need for self-confidence that you can't govern by committee. There's only one D.A. There may be fifty judges in a community, but there's only one D.A. 
  •  Carol Vance was a great organizer. He had the ability to assemble his office in such a manner to where it was a Roman phalanx. He had an ability to take that many people, fit all those pieces together, and he passed that on, of how to organize and get your office ready for the onslaught that you were fixing' to face for the next thirty years, which was fighting crime, which never stops, never sleeps, never rests. 
  •  And you've got to be continually ready. I think Carol Vance was the master of hiring highly skilled people, and the ability to match the place in his office where they belonged. To not only maximize what their ability was, but what they could give back to the office. Unparalleled skill. He was the best at that and the law firm he's with now, probably is there now too. So,  each one gives you something different. 
  •  CHAMMAH: And how did you manage all those influences? 
  •  EADS: Well, I don't know that you purposely manage those. As a matter of fact, I'm not even too sure at the time you recognize what they are. With age and reflection, you do. But at the time, I don't think you do. I think that, I oftentimes would talk to those men, and you're inspired. You're in awe, and you might take away one tenth of what they say, just one tenth of what they say, but oftentimes that's enough. Oftentimes that's enough. 
  •  They teach you things that law school can't teach you, and they teach you there are times when you're going to get knocked down, you're going to get beat.They're going to teach you that politics is a tough sport. They're going to teach you that you have to balance between what's right and what's politics, and that what's right always wins. It's a political office. You run for D.A., like you do any other political office, but you can't do political favors. What's right's right and what's wrong's wrong 
  •  And oftentimes you will upset people, make people mad, because your duty is to follow the law. And sometimes that's tough, a tough call; when to prosecute, when not to prosecute, when to take it to a grand jury, when not to. Influential people's sons, daughters, brothers, sisters, you don't make many friends when you do that, but that's what you're elected to do. It's a great job, but one that's behind me and not in front of me. 
  •  CHAMMAH: I guess I'm curious to hear a little more about that balance between the politics and what you feel is right, or the law end of it. When you were trying to balance them, how often were you up for reelection? 
  •  EADS: Every four years. 
  •  CHAMMAH: And would things change as those reelection dates came closer? 
  •  EADS: Sure, sure. They changed in my perspective, when I first ran for political office, I don't think anybody in my county even knew what a Republican was. By the time I left office, I was the last Democrat left standing. I was the only one. So that landscape changed.Every statewide public office holder in Texas was a Republican when I left office. When I entered office, there were no statewide elected officials. So when I would go to office, to testify on legislation, or work on legislation, it was most likely with other Democrats. Later in my career it was always with Republicans. 
  •  What does that change, except schematically, I'm not too sure, but the philosophies change, conservative/liberal philosophy changed, the perception of criminal justice changed. We went through those periods of time, heavy on rehab, to lock them up and throw away the key, to who cares what it costs, lock them up, keep 'em forever, rehab's a sissy game. And you go through those ebbs and flows with the legislature in criminal justice, because criminal justice doesn't pay for itself. It bleeds and sucks tax dollars, very expensively, so it's a difficult animal to get a hold of for legislators. Because the public hue and cry is always lock 'em up. 
  •  CHAMMAH: Is always? 
  •  EADS: Lock 'em up. Lock 'em up forever. Then they stop and think, "What does it cost to lock them up forever? Do we need to be locking people up forever for a small amount of drugs? Or is it the right thing?" The great debate between legalizing drugs. Those are all things that cycle through the legislature every session. As a D.A. you're called upon as a resource to give your opinion and the value of your experience in handling those kinds of cases. So that changed over the years. The role of politics hasn't changed. 
  •  Tip O'Neill says, "All politics are local." I mean you get out, you hand out cards, you put up billboards, and you're running like every other politician. But you're different - Anybody who runs for office is a politician. I don't care what they tell you. They're a politician.But there are different kinds of political office, and a D.A. is that kind of political office that doesn't serve politics.A judge doesn't serve politics. A judge serves the law. And a judge is a tough job. You've got to make calls every day. I don't see how they do it. 
  •   At one time I thought I wanted to be a judge, a state district judge.I changed my mind. Being a D.A. was easier for me. I could see the light better. I did not have to negotiate. I didn't have to mediate my principles. I knew what I thought was right, and that was what I was going to do. If the jury agreed, fine. If they didn't agree, fine. They'd tell me in four years. My jury was always out, every four years. 
  •  CHAMMAH: And did that ebbing and flowing of perspectives on criminal justice come back from Austin here, in terms of the way you approached your work? Did it have an effect on you the other way? 
  •  EADS: I don't know. I don't know. You know the main thing I think has an effect on you, life's cumulative. We're the total sum of our experience, bad and good, and I found that the older you get, the experiences mean more to you. I think what affects you the most is your day to day experience.The thing that affected me the most as a D.A. was dealing with the victims of crime. It was "mano a mano." It was me and the victim, and after thirty years, you come to realize it's time to leave. 
  •   I can't do it anymore. It becomes difficult to separate your emotional being from the fact-finder, to be emotionally detached, but emotionally involved in the case. You don't want your heart surgeon crying over a missed stitch, and unable to see the next stitch. You don't want your lawyer, or your D.A., to become so emotionally involved that it affects their judgment on what they have to do next, or what's the best way to do it, or what witness should you call.







     
  •  That guy's got to have the eye of the tiger all of the time, no matter what kind of emotion he's surrounded by, or what kind of emotional setting he's in.It's tough when you walk into a courtroom, and you have four hundred people in the courtroom, and people are crying, and they're moaning, and the gnashin' teeth, and they're upset. And it's this boiling pot of human grief. And to remain detached from that, and pursue something in a reasonable line of questioning, so that a jury can understand what you're doing. 
  •  That's the tough part. And not to do it once, or twice, but every time. Because as D.A. people will not tolerate failure. They won't tolerate it. They don't want a D.A. that loses, won't tolerate a D.A. that loses. That's not to say they don't understand if you go into a tough case. I give the public more credit than that.But you know what I'm saying. They want Dick Tracy. They want someone whose going to go out there and get it on. 
  •   It's like telling Babe Ruth, "You hit a home run every time. Not once. Every time. And then in four years we'll let you know if we want you back." I think that wears on you, the personal experience wears on you. No job in the world like it though, no job in the world like it. 
  •  CHAMMAH: So, in Bell County, were you first-chairing most of the sort of harder, tougher, bigger cases? 
  •  EADS: When I first started, when my office was smaller, I was involved in virtually every case. When I say major: first-degree felonies, murders, rapes, aggravated robberies, those kinds of things. As my office grew, as I got more assistance, as I got more staff, then certainly your participation at the trial level declines some, because your administrative duties began to increase, to where your staff gets to be thirty-five or forty lawyers, ninety-five percent of your time is to administrate that office. 
  •  You have great lawyers. You hire them to go do a job, and the better you are, the better they are. And quality begets quality. You have an office with high quality lawyers, other high quality lawyers want to go to work there. So, that's what you strive to do.That's the Carol Vance theory of being a good D.A., is you hire good people and leave them alone, you let them do their job. That's what I tried to do. 
  •  But, at the same time, regardless of the size of your office, there are some cases that come along, that demand that the elected public official go do it. You know what they are. And they don't have to be death penalty cases. It can be a prominent figure's son or daughter or somebody. You have got to go take that bullet. The public demands that. So I do those.







    Primarily, in my later years as D.A., I was pretty well confined to death penalty cases. 
  •  CHAMMAH: Which, in the course of your time as D.A., were there more, were there less? How did that change over the course of your entire career? Or was it consistent? 
  •  EADS: You know, I don't think at the time I noticed we'd have more death penalty cases than any other time. You know, a death penalty case is a very unique animal. It's unique in the criminal justice system to any other type case. No other case like it, because in a capital murder case, in a death penalty case, you have two factors involved, not just one. In almost any other case, you have the factor of, Did the defendant do it? Did the defendant do it?And if so, what's the proper punishment. 
  •  In a death penalty case, that's not true. In a death penalty case, you have two factors involved, primarily two facts; Did the defendant do it? And, Is there a probability that he will continue to commit future acts of violence. Those two factors are what death-qualify that person. When I say death-qualify, that doesn't mean when you have those two factors present you necessarily seek the death penalty. And speaking of the responsibility of the D.A., who decides if you're going to seek the death penalty? Do you have a committee in your office? Do you have the Chamber of Commerce- let them decide? It's your call. 
  •  You have to make that decision, and there are going to people that don't agree with you. There are going to be people that say, "I think in that case you should have sought the death penalty and you didn't." Then they want to know why, or there are going to be those cases why you did. They're going to say, "I don't think you should have. You justify to me why you did." You've got to kind of be prepared for that, because you know that's coming, but those are tough calls, discretionary calls. The law doesn't say, "If this fact is present and this fact is present, you will seek the death penalty." That's easy, man. That's easy. The decision is made for you. Monkeys can make those kinds of decisions. 
  •  But you see, being D.A. is different. You've got to make that call. And you've kind of got to standardize your mental process, to where certain things are present.Each time one of those things is present, it raises the level of awareness of whether you think you ought to seek the death penalty. It's not just high profile. I mean, I tried death penalty cases against defendants who nobody ever heard of before or since, but in my opinion, were deserving of the death penalty, and that's why I sought it. So, you have criteria, and those criteria apply across the board, whether in San Antonio or Houston or Lampasas or wherever. 
  •  
  •  CHAMMAH: These are criteria that you develop for yourself? 
  •  EADS: No, by statute. I mean you have to look at the continuing threat, what's admissible as evidence to show continuing threat, what can you get into evidence, what kind of slug are you dealing with? Is he probably a one-time murderer? Was the murder so heinous, in and of itself that it screams for the death penalty? Is the community outraged? Or is it a murder? Murder's bad. I'm not trying to minimize it, but you've got murder, and then you've got really bad murder. So you look at that. 
  •  I mean is it shot between the eyes at a bar, or is it double axe, fifty times, chop the head off after the arms and fingers, that's murder.So you look at the egregious nature of the offense itself, its effect on the community. Then you look at the defendant. Is the defendant somebody hopped up on drugs, never been in trouble before, and just goes ape crazy, but not crazy in the legal sense? Or a bar room fight that gets out of control? Or a temper that finally goes over the edge? What drives people? Are they likely to do that again? Have they ever done anything like that? 
  •  Then there's a difference between somebody who is historically, in their past, is in trouble time and time and time and time again and every time it's an act involving physical violence that has now escalated to a point of egregious murder. Once those two factors start to come together, then you've got the death-qualified defendant. Then you've got to decide whether we're going to seek the death penalty. 
  •  Is it that type of case? And although it's a terrible standard, and subject to a lot of debate and abuse, I know - I know many defense attorneys would love to hear me say this, but you know in your heart of hearts. You know in your gut. You know if it's a death penalty case.Just as much I think as you know it's not. You can't just run around seeking the death penalty because it's high profile, front page, make you look good. I wouldn't give you a hoot in hell for a D.A. like that. Not doing his job. It's the most awesome responsibility you can give another human being, to make that decision, and you lay in bed and worry about it.







     
  •  You consult with the victim's family.You talk to others in your office, not to have them tell you what to do, but as I said before, to get the power of their advice, how do they feel about it? Then you have to go off and you've got to sit in the corner, and you've got to decide. And when you come out of that corner buddy, it's you versus everybody. There's no surrender. I don't care who you're up against. I don't care what town or city you live in. Let's get it on. That's what it is. 
  •  CHAMMAH: Tell me about that decision making process. What all goes through your mind, other than the factors, what are the things that influence your gut? 
  •  EADS: Oh you do as much as you can to be sure that you're right, be sure it's the right thing to do. I would try to look at the end game in a death penalty case. I came to the conclusion that any death penalty case, if the defendant has the very best lawyers possible, and the very best prosecutor possible and the very best judge possible, and a  responsible jury, that that defendant is going to receive the death penalty, because he is in fact deserving. 
  •  And if he received the death penalty, with that quality of case of characters in the courtroom, it's not going to be reversed. If it's not going to be reversed, someone is going to do. Someone is going to die.So I think that by looking in the very beginning, it helps you to realize, when you stand up that first day in front of that jury panel, this is not a game. We are in here to determine if someone is going to die, and you try to answer yourself, is the world a better place, has justice been served, because this person no longer lives, and dies for that act. 
  •  That's what you try to answer, and if your conclusion is yes, then I think you can go forward, because the time will come where you'll receive a call from the governor, or someone the night of execution, who'll say, "Do you know of any reason, do you know of any reason why this person should not be executed?" Now man, let me tell you something. It's a serious question. I don't care how egregious the defendant in, think about being asked that question. It's not a question that you flippantly roll off the top of your head.You stop and you really think to yourself. It's a decision you're going to have to live with forever, so you want to be sure. 
  •  There are arguments, where people will say,  "Well, I didn't give him the death penalty. The jury did." Yeah, well come on. I'm the one that talked to the jury for three hours. You can't pass the buck that way. If you lose, you can't say, "Well the jury found him not guilty, not me." You lose, you lose, buddy. And death penalty cases, juries don't follow beyond a reasonable doubt. Juries in death penalty cases, they want to know beyond any doubt, whatsoever on God's green earth, that man is guilty.You've got a greater burden. They won't tell you that, but that beyond a reasonable doubt doesn't float in a death penalty case. 
  •  They want to know for sure before they send someone to death. I would want to know for sure. So would you. I don't want some defense attorney standing up there, saying, "Isn't it reasonable that, you could reasonably doubt that -" Not gonna drop the bullet. There's a lot of pressure in a death penalty case. If you lose, you've got a lot of explaining to do. Especially if you lose on guilt or innocence. A death penalty case, on guilt or innocence, ought to be a slam-dunk. It ought to be a foregone conclusion. You're in there, in that trial, to try to issue death. That's the issue, from the very beginning.  
  •  The defense attorney knows that. They're not fools. We've got some good ones, boy, they'll tear you up if you're not careful. They're eat your lunch. But they know what's going on. They're not going to look foolish, trying to find someone not guilty on some fabricated defense they know is not going to float, and then expect their credibility to be on the line when they're talking about life or death. They know where to expend their bullets. And believe, man. I'm telling you, there are some good ones. 
  •  CHAMMAH:Tell me about some of those good ones. What's their -? 
  •  EADS: Oh by name, most of them are my age now. Defense attorneys I admire greatly. I really do. People find it tough, you can fight somebody in a courtroom and then go out and have a beer with them later. I don't find that tough at all. You're professionals. That's what you do. But, a defense attorney has got to be able to set aside a lot of his personal feelings, and try a case on the principles of law. The defense attorney's job is to make me do mine. If he lets me slack on my job, he's not doing his job. 
  •  Make things as tough on me as possible. Reasonable, but tough. Hold me to the standard. Because D.A.s go in there and say, "I expect to prove him guilty."







    If I'm a defense attorney then I'm going to stand up and say, "Then you prove it, big dog. That's why we're here. You have to go through me."Good defense attorneys reek of self-confidence. Not boastfulness, not cockiness. They are quietly reassured that they are very good, and they'll let you know that. 
  •  The better ones don't even have to tell you. You know it by being around them, and they can shake your confidence a little bit. You've got to be sure to get a handle on yourself, be sure that man, if I step into the arena with guy, I'm going to be able to hold my own. And you're going against some old grizzly bear whose been doing this for thirty years, this is your first year as D.A., and he's sittin' there for you, boy. You can't lose.There's no second chance at being D.A. You cannot lose. It's not an option. 
  •  You can't pass off the excuse, "Well he's a good defense attorney."







    Lots of luck at the election booth. So there's a lot of "mano a mano." A lot of lawyers are peacocks. At least they admit it. But I don't want that kind of lawyer. I want a lawyer whose as sure as me and everyone around me, that's good. I want that. I don't want My Cousin Vinny, you know? 
  •  CHAMMAH: So I understand how that system plays out, especially in terms of long time professional defense attorneys, who are well respected, like in Harris County, for example. But how did that play out in Bell County? 
  •  EADS: A lot of times in rural counties, big city D.A.s, lawyers, will come down and they're dealing with country bumpkins, rural people, so I've always used that to my advantage. I went to law school just like they did. But particularly out of state, big city D.A.s, Ivy League, Ivy League lawyers, try me on. That's all I can tell you. So you can use that to your advantage, I think. That's overconfidence. That's false confidence.







     
  •  Those aren't particularly good lawyers, lit on somebody else's fumes, you know. But big city lawyers, by and large, have a lot of experience.Now civil lawyers, from these big, deep carpet law firms, they think, "Boy keep out of it. We're going to have to go to trial." That's what I thought we did for a living, we tried cases. Some of those firms, they don't go to trial once every ten years. A D.A. in a small town is in trial every ten days. They're not going to run him off with that kind of foolishness. We all buy our blue suits at the same place. 
  •  CHAMMAH: So tell me how this all played out more specifically in a case, like Barefoot, as this proceeded all the way from the trial, to - 
  •  SABINA HINZ-FOLEY: Can we hold on a second? I'm going to try to ask if I can close that door. 
  •  EADS: Yeah, why don't you go back there and -







    [Tape cuts] 
  •  CHAMMAH: I'm just curious about— 
  •  EADS: What made Barefootso different? 
  •  CHAMMAH: What made it so different that is passed the trial to get all the way - 
  •  EADS: I gotcha. 
  •  CHAMMAH: That whole experience. Why Barefoot
  •  EADS: It's an interesting experience. So with that question we know we're starting in the right place. Barefootwas an interesting proposition, because the Barefootcase was not remarkable in its fact situation. By that, let me explain what I mean. It was a bad case, and a case deserving of the death penalty.But Barefootwould not be that kind of case that would grab your attention if you're at home at night, thinking, "I'm going to follow the O.J. case. I'm going to follow the Barefootcase." It's not that kind of case. It was a case where a slug, Thomas Barefoot, with a long criminal record, and deserving of the death penalty, escapee from Valencia County Jail in New Mexico, child molester, numerous run-ins with the law, murder a police officer: death penalty. 
  •  But it was a case that had a particularly unique legal question in the body of the case, and without going into ad nauseum, the legal question was whether or not a hypothetical question could be used, of an expert, upon which that expert could base him opinion as to the issue of future dangerousness. That was the question.







    In all past capital cases, the defendant had been interviewed by, say, a psychiatrist or psychologist, or someone in the mental health field. And based upon that determination, or based upon that patient evaluation, that expert was able to give a medical opinion as to whether or not he felt, in his medical opinion, that the defendant would continue to be a threat, which would give the jury sustainable legal evidence, upon which to base a death penalty verdict. 
  •  But those cases, those line of cases, with direct questioning of the defendant by a psychiatrist, were overruled, and ruled as unconstitutional, because the defendant was not made aware of the right to remain silent on these issues. So that whole line of thinking was in one fell swoop, out the window. So how are we going to do the issue of future dangerousness?







    What we did in Barefootwas, the psychiatrist didn't go interview the defendant, but we gave the psychiatrist a detailed portrait of the defendant, based upon facts that had been admitted into evidence. And based upon those facts, hypothetically ask you, assuming that to be true, what is your medical opinion?







    And they gave their answer. It was that issue, that one issue, upon which the United States Supreme Court agreed to hear the Barefootcase. 
  •  So what it did, it removed Barefootfrom the body politic of all these case, and made it unique because it had a very, very unique legal question involved that would affect not only the Barefootcase, but virtually every other death penalty case that was tried in Texas, or around the United States. A very unique question, and we argued that case in front of the United States Supreme Court, I think in 1987. And the Supreme Court said you could do it, it was affirmed, and Barefootwas executed. 
  •  Now I don't know today how often it's used, but it's acceptable to do it. I assume it's used. I used it in death penalty cases after that. But that's what made Barefootunique. Now, the way that affected me was that I happened to be the prosecutor in the Barefootcase, and, just like the facts of the Barefootcase, not of my uniqueness or my particular skill or- I just happened to be the one that asked the question. My office happened to be the one that came up with the idea, let's ask him a hypothetical. 
  •  But because of that, it elevated us, along with the issue, through the morass of the criminal justice system. It exposed us to the American Bar Association. It exposed us to the National D.A.'s Association. It exposed us to the National Organization of Criminal Defense Lawyers. It exposed us to Amnesty International. It exposed us to all types of criminal justice organizations that wanted to hear peoples' opinions with regard to the death penalty or the issues 
  •  For me personally, it was an eye-opening experience, because I was able to be able to stage, if you will, a normally overruled D.A. a chance to go do, a really unique experience, to get to go to Washington, sit in the Supreme Court, testify before Congress. My trampoline threw me higher than it ever had before, to such an extent that it's probably very difficult for me to adjust, because I was not used to that atmosphere But that's what was unique about Barefoot. That's what made Barefootunique in my life. 
  •  Plus, plus I had a wonderful and unique relationship with the victim's family in that case, and became very close with his family, the police officer's family. And out of Barefootgrew the whole concept of, "Victims are people too."







    We have to pay attention to victims' families and their rights, and what their rights should be, and how we treat victims, and don't treat them as evidentiary baggage to be summoned to the court at the last minute. It became part of the process of the whole victims' rights movement, and we became very involved in national victims' rights organizations, because very involved in D.A.s getting victim-witness coordinators into their offices. I don't mean that I did it all, because a lot of D.A.s did, but I think it elevated the awareness, to where many D.A.s that had that capability began to do it, and do a great job of it, to where today I think that seed has given fold to a lot of good things, to where we are very aware of victim's rights. I think that all came out of Barefoot. 
  •    CHAMMAH: So tell me about the relationship with that family. 
  •  EADS: Well, you know, that case was on appeal for ten years, so you go from, "It's affirmed. We've got a new execution date," to "Nope, execution date's off, it's been appealed again," "Got a new execution date," "Nope, it's been appealed, it's off again." For ten years, this family went up and down this writ of habeas corpus emotional roller coaster. The kids grew up, they got older, they wanted to know what's going on. Why is this guy, who received the death penalty ten years ago, still alive? What's going on? So at every step of the way you had not only the obligation, but the opportunity to explain that. Most of which, I didn't understand. I mean for the first time, I was begin drug through the federal process. I didn't know anything about the federal process. 
  •  That's when I ran into people like Doug Becker, at the Attorney General's office, and these great lawyers, they handle that part of it, and took us country bumpkins along, the trial lawyers. We hire appellate lawyers to wear bow ties and think with big heads, but we're just trial lawyers.  But it drug us along, it drug us into that experience. It made us think about things we never thought about before, and I think made us better lawyers, to where I think later cases, death penalty cases that I was involved in, I was able to benefit from that experience; knowing what was gonna happen if it was done right, knowing what the process was, knowing what the appeal process was, how long it was going to take, being able to work with the victim's family without emotionally crashing yourself, waking up in the middle of the night and praying that you're right. "Please let me be right on this decision."







    There's nobody to ask, "Can I do this? Should I do this?" 
  •  Who are you going to ask? There's nobody. So, you become your own greatest fan. I mean, you have to be. If you have no confidence in yourself, how are others supposed to have confidence in you, that you're handling business. But not a cocky, boastful kind of confidence, but a quiet confidence that you're going to do this right, it's going to take a while, and we're going to give it our best shot, and you've got to believe in me. You've got to believe in me. In order for you to believe in me, I've got to believe in myself. In order to believe in myself, I've got to first of all make the right decision that this is what we ought to be doing. If I make the wrong decision, I've got false hope. If I make a political decision; this is would we ought to do because it looks good. You're in for trouble, boy. You're in for trouble. 
  •  If you're right, you can withstand almost any onslaught, from the press, from the public, personally, personal assaults, personal insults, but if you're playing a game, you will be found out in a death penalty case. If you're trying to trick a jury, if you're playing life or death with that jury, they're going to sense it, and they'll take your head off, and they'll take your political head off, and you'll be through as a prosecutor, because prosecutors have higher standards.They have to be right. You can't guesswork your way through being  a prosecutor. You can't guesswork your way through being a D.A. 
  •  And look at the D.A.s that have tried to do that. They're not around anymore. It's an office where the abuse of power is so, it's out there, because you have so much. You've got to learn how to use that in a respectful, dignified, understandable way, because you do have this power of taking somebody to a grand jury. "Well a grand jury, all they do is just indict. They don't find guilt or innocence."







    I tell you what. If I take you to a grand jury, you're through. I don't care if a grand jury "no bills" you. You're through. 
  •  You know that. The public knows that. Look at public officials, who have been through grand jury investigations, that it has totally destroyed careers. That's why the power of the grand jury needs to be bridled, it needs to be secret. It's not  a public exposé. The proceedings need to be in private, and handled with a great deal of respect. And good D.A.s do that. They know that.







    But abuse it, boy you're in trouble. Besides that, half the time you're in a courthouse fight. Look at the courthouse fights that go on all the time. Boy, that kind of stuff. Your business is to impart, not to put up with that, I think. 
  •  CHAMMAH: So take me back a bit to that Barefoot trial, as far these hypotheticals that became the basis for this big legal question. How did the idea of doing a hypothetical develop among your crew and also who was the expert, and how did you find him and all that? 
  •  EADS: Yeah, yeah. The idea came about because you can do it in civil cases. It's done in civil cases all the time, but it was never done in criminal cases. And I had this little appellate lawyer; I say that facetiously, I had this great guy who, diminutive, smaller person, but he just had this head on him like Mr. Peepers, you know, these glasses, and he's always twirling his hair, and he had a bow tie. 
  •  CHAMMAH: What was his name? 
  •  EADS: Ralph Petty. And Ralph Petty was brilliant, just brilliant, but was - Ralph is way out there, always way out there. He's the kind of lawyer that would get up and start arguing to a jury and forget where he was. But his mind was way beyond, it was in a place mine wasn't. He was outside the box. And Ralph comes to and says, "Look," he says, "In civil cases they can get around this because they can ask hypotheticals. Why don't we ask a hypothetical?"







    I said, "Not a bad idea. Let's think about it. Do you think we can do it?"







    He said, "Yeah, I think we can do it." 







    I said, "Well let's do it. Let's do that." 
  •  Knowing we were going to run into a lot of objections when we tried, and he and I, although after good reflection I'm sure ninety percent he, sat down and wrote this twenty page hypothetical question, you know, that began with, "Assume that the facts I'm fixin' to tell you are true. Assume that on December seventeenth, 1983, this defendant walked into a bar room and in his hip pocket he was carrying a club. Assume further that that club he was carrying was in addition to a thirty-eight caliber automatic pistol, which he was carrying in his right front pocket. Assume further that..."







    You see, it goes on and on and on and on, after the offense. "Assume further that after the shooting, this defendant takes his girlfriend and goes out and eats a hamburger with everything, and it doesn't affect his appetite a bit. Assume further that…" 
  •  You can go on, and on and on and on. You can cover every aspect of his conduct, and those aspects that you know speak to a mental state, like psychotic behavior, no remorse, total lack of guilt, non-caring, insensitive, no value for personal rights or property rights. You can cover all that, because you know the psychiatrist is going to cover that by these facts, so you can incorporate all that into that hypothetical question. 







    That was the seed of it. That's the way it came about. We got ready to pose the question, the defense attorney raised hell, as he should have, and preserved the error, upon which the case was appealed. The United States Supreme Court looked at it and said, "Why not? You do it in civil cases."







    They said it's okay, it's okay to do that. 
  •  CHAMMAH: And who was that expert in this case? Or was it just some psychiatrist? 
  •  







    EADS: It's been so long ago. The expert, I believe, was Jim Grigson. 
  •  CHAMMAH: Okay. 
  •  EADS: Who was a psychiatrist out of Dallas. I believe it was Jim Grigson. I'm not positive, but I believe it was, almost sure it was Dr. Grigson. 
  •  







    CHAMMAH: And then this appealed all the way up. Should we-







     
 
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Title:Interview with Arthur "Cappy" Eads
Abstract:Arthur "Cappy" Eads served as the District Attorney in Bell County, Texas from 1976 - 2000. In Video 1, Eads describes the changes to the criminal justice system over the years and factors which influenced his professional career as a DA. He discusses his involvement in the establishment of the 'victim's rights movement', and the personal emotional toll death penalty cases had on him throughout his career. At the end of Video 1, Eads explains his involvement in introducing hypothetical questioning into criminal cases when working on the Barefoot trail. In Video 2, Eads reflects on his time as the President of the National District Attorneys Association and how the experience of such a high profile position changed his life and the rest of his career.  Eads also discusses the differences between the experience of rural and metropolitan DAs; the process involved in jury selection; and the factors that lead him to retire. In Video 3, Eads shares some thoughts about his relationship with local law enforcement while being DA, and why conflict would sometimes occur professionally. This interview took place on May 17, 2011 in a courtroom in Salado, Bell County, Texas.
Sequence:1 of 3
Creators:
  • Arthur "Cappy" EadsRole: Narrator
  • Texas After Violence ProjectRole: Collaborator
Contributors:
  • Maurice ChammahRole: Interviewer
  • Sabina Hinz-FoleyRole: Videographer
  • Maurice ChammahRole: Transcriber
  • Maurice ChammahRole: Proofreader
  • Virginia Marie RaymondRole: Proofreader
  • Courtney PayneRole: Proofreader
  • Courtney PayneRole: Writer of accompanying material
Publishers:Texas After Violence Project
University of Texas Libraries
Date Created:2011/05/17
Languages:eng
Geographic Focus:North America--United States--Texas
Geographic Base:North America--United States--Texas--Salado
Type of Resource:Moving image
Genre:Interview
Identifier:tav00041_vid1
Rights:
    This electronic resource is made available by the University of Texas Libraries solely for the purposes of research, teaching and private study. All intellectual property rights are retained by the legal copyright holders. The University of Texas does not hold the copyright to the content of this file. Formal permission to reuse or republish this content must be obtained from the copyright holder.

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Continues with Video 2 of the TAVP Interview with Mr. A. Eads

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