Featured Segment: Closing Arguments for James Carl Lee Davis (4 mintutes, 45 seconds)
Introduction and Consent
Education and Early Legal Career
Becoming a Felony Prosecutor
Joining Allan and Gordon, Adjusting to Private Practice
Getting Assigned to James Carl Lee Davis' Case
The Facts of the Davis Case
Ronnie Earle and Death Penalty Prosecution in Travis County
Funding, Mitigation, and Investigation
Effects of the work on personal life
Davis' Childlike Personality
The Emotional Intensity of the Davis Trial and and Closing Arguments
The Jury's Difficulties Sentencing Davis
Exploring all the Legal Angles at the Trial Stage
Mitigating Factors and Aggravating Factors
The Problems of Portraying James at Sentencing and the Nullification Instruction
The Jury's Deliberation and Emotional Difficulties
The Issue of Competency vs. Insanity in Defending Davis
Working as a Prosecutor
The Personal Effects of Doing Capital Cases
Finding Davis' Teachers to Testify for Him During Sentencing
Video 2 of "Interview with Mr. Andrew Forsythe"
civil and political rights
discrimination, mentally disabled
economic, social, and cultural rights
economic and labor rights
social and cultural rights
laws, justice, and judicial proceedings
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VIRGINIA RAYMOND: We're here, it's May 21st 2008, we're in Andy Forsythe's law office in Austin. There's Mr. Forsythe.
RAYMOND: Speaking, I'm Virginia Raymond, and behind the camera is—you don't have to look, is Kimberly Bacon. What I just wanted to ask you is, you looked at
our consent form?
ANDREW FORSYTHE: Right.
RAYMOND: you understand that we want to interview you, that you're not getting paid nor paying us, that this information—we're not going to do anything with
this interview until you review the transcript and approve it, at which time—
ANDREW FORSYTHE: Okay.
RAYMOND: This is just a consent to the interview.
ANDREW FORSYTHE: All right.
RAYMOND: Any other questions?
ANDREW FORSYTHE: No, ma'am. I'll just print in my bad handwriting, and date five twenty-one, and sign in my even worse handwriting, unless you guys need to
print it and you've never figured out who that was that you spoke to today. Okie-doke.
RAYMOND: Thank you so much. You can keep one.
ANDREW FORSYTHE: All righty.
RAYMOND: Okay, so you know from our phone call that we're interested in people's experiences having to do with death penalty cases. And, so actually, let's
start. Could you tell me a little about yourself and your law practice?
ANDREW FORSYTHE: Sure. Well, I'm fifty-six years old. I grew up in Dallas. I went to undergraduate college, well I graduated undergraduate college at the
University of Texas here in Austin. I went on to law school here, graduated in seventy-eight.
FORSYTHE: I was in private practice for a year after I graduated doing a variety of things, then I got hired on as a prosecutor here in Travis County, at the
county attorney's office in 1979, prosecuting misdemeanors.
FORSYTHE: And I did that for a couple of years, enjoyed it a lot, and was offered a job at the district attorney's office, actually which was a godsend,
because as I had sort of made my way up the ranks at the county attorney's office and actually for a very brief period I was the first assistant county attorney
FORSYTHE: which I immediately found out involved dealing with the commissioner's court, and dealing with hiring and firing secretaries and finding office
furniture and doing this kind of stuff and I'd been having a great time in the criminal courts so I got promoted above over where I wanted to be and was having fun and actually went—
FORSYTHE: really as I recall it was not only me but Chris Gunter, my good friend, and who also was co-counsel on one of these death penalty cases you're
probably going to ask me about.
FORSYTHE: We were both very anxious to go to the D.A.'s office, and I was particularly anxious to because I was having such a miserable time being an
administrator for this brief period at the county attorney's office, and so we went to Will Flowers, who coincidentally ended up being the trial judge in the McDuff case where Chris and I were
FORSYTHE: At that time he was the executive assistant district attorney basically running Ronnie Earle's office, which of course later prosecuted McDuff and
all the death penalty cases in Travis County. And we begged Will for a job and he took mercy on us and he hired Gunter and myself at about the same time as I recall, maybe exactly the same
FORSYTHE: So I was saved from being a high-ranking assistant county attorney, which I hated, and I was now a rookie felony prosecutor in the D.A.'s office,
which I loved. And so did Gunter. And so I prosecuted there in the D.A.'s office for—actually not that long.
FORSYTHE: I think it was a year and a half, or maybe a little less than that, but I did get to be a prosecutor in Mace Thurman's court, which was a great
experience, because he is a legend in Travis County, and in fact if you'll look over there on my mantle, you will see my wife and I being married, and you see this old man here, that's Mace
Thurman, and my wife and I and her two little daughters at the time.
RAYMOND: Thank you. Will you show that to Kim for the—?
ANDREW FORSYTHE: Sure. We were married in Judge Thurman's living room.
RAYMOND: Oh, wow.
ANDREW FORSYTHE: So that's where we are. I called him up one day and I said, Will you marry me? and he said "I'm already married" and I said that's fine with
me and the woman, and he kindly agreed and Jackie, his lovely wife who recently passed away, had bouquets and stuff like that.
FORSYTHE: He'd done this drill before, and I was one of his young prosecutors, and so we went over with the little girls and had I think one witness and that
FORSYTHE: It was kind of like a Las Vegas in that respect, and I got married there in Judge Thurman's living room and it obviously took because we celebrated
twenty years of marriage just recently and we've had two more children, et cetera.
ANDREW FORSYTHE: Thank you. So anyway, I was having a great time being a prosecutor in Judge Thurman's office, but then I was given an offer by my present
law partner Allan Williams and Gordon Rubinett, and his partner at the time, who is still associated with this firm, to come work for them, as their young lawyer, and you just couldn't pass
that up in Austin.
FORSYTHE: It's always been hard to get a good lawyer job. As you know, there's way too many lawyers here for the population, even now, and these were great
guys and I'd gotten to know them well, and I'd had cases against them and whatnot. In those days the prosecutor's office was more of a training ground. They didn't have many professional
FORSYTHE: They didn't pay very well. It was seen as a place where you went, you got a lot of experience, you tried a lot of cases, you figured out how the
system worked, and then you went out and got a real job somewhere if you were lucky enough, and so it was very common to have this high turnover and sort of expected.
FORSYTHE: So anyway I got an offer from Allan and Gordon and I couldn't turn that down, great guys, and I went to work for them January first, 1983. I have
to think back on these dates. January one, 1983, because it's just been twenty-five years if I remember that correctly. Yes, twenty-five years, here at the same firm.
FORSYTHE: And they did divorce work, and mainly criminal but probably thirty or forty percent divorce court, family law. Because Austin was a smaller town in
those days and you couldn't make a living practicing only criminal law generally, and there was a long tradition of lawyers practicing some family law and criminal law.
FORSYTHE: Those things seemed to go hand in hand, although anybody who's done both will tell you that family law is much more brutal than the criminal law.
Nothing like a contested divorce to bring out the worst in everybody, including the lawyers. But in those days you did some of both.
FORSYTHE: And so I was saddled with that, which I hated. I hated the family law, and I went to those guys after a while and I begged them and I said, Look,
just don't make me do any more divorces. I'll take as many court appointments as you want me to or whatever, but I just don't want to do anymore, and they said "That's fine."
FORSYTHE: So very quickly I started doing only criminal and basically for my entire career since then all I've done is criminal work, and as I say I've been
at the same firm forever. We're probably one of the longest-lived criminal firms in Austin. There's not many that have been going this long.
FORSYTHE: Probably Tom Kolker and Malcolm Greenstein have been going longer, but I don't know, not many.
RAYMOND: 1980, but they don't do just—
ANDREW FORSYTHE: But they don't do just criminal. Anyway, so that's it.That's my story in a nutshell.
RAYMOND: Great, great, thank you. So as a—maybe I'll just go ahead to 1984. 1984 is when you were appointed to represent James Carl Lee Davis.
ANDREW FORSYTHE: Right.
RAYMOND: How did that come about?
ANDREW FORSYTHE: The appointment? You know I don't remember exactly, but I can kind of guess.
FORSYTHE: It was in Judge Wisser's court, the 299th district court. I was a young criminal defense lawyer, and of course they loved to pick on young people
who'd just come out of the prosecutor's office and give them a taste of being a defendant times three by giving them a real hard case like that, a real serious case. I don't remember if Judge
Wisser called me up.
FORSYTHE: I don't remember if somehow Gunter got me involved in this, because Gunter was always much more gung-ho in these things than me. He certainly got
me involved in McDuff later on. But on this one I don't really remember, but it was probably Judge Wisser called up Gunter and me and asked us.
FORSYTHE: Judge Wisser was such a nice guy, he was such a nice guy that he wouldn't have done it without us saying Okay, we're willing to do it. Now, I can
tell you Judge Thurman had gotten great pleasure in pranking with me at other times appointing me to stuff, and he certainly wouldn't have asked me, he just did it.
FORSYTHE: And he just relished me squirming when he did so, but Judge Wisser was such a nice guy that he probably asked if I would do it or Gunter would do
it or both of us would do it. He probably asked me and I asked Gunter; we were close friends and are close friends and had parallel careers and whatnot.
FORSYTHE: He'd left the D.A.'s office actually shortly before I did. So it was probably a phone call from Judge Wisser and then saying yes. And the next
thing you know our lives were upside down for the next couple of years.
RAYMOND: Tell me about that. What do you mean upside down?
ANDREW FORSYTHE: Well, death penalty cases obviously, and the District Attorney, as I recall, had made it clear from the beginning this was a case that they
would seek the death penalty, are all-consuming. There's so much work to do. There's so much on your shoulders. So much responsibility.
FORSYTHE: This was a terrible case on the facts, in that James was accused of and later convicted of beating to death three young children in their
nightclothes. He was a neighbor, and for no apparent reason other than some bad drugs and some serious mental problems that he had, he was accused of going into their house—
FORSYTHE: basically burglarizing their house one night, but not stealing, but breaking in and raping the young girl, and her two little brothers woke
up, or were there—all of this was in a small house, a poor family, and ended up beating all three to death with an iron pipe. It was horrible. It was the worse facts you could imagine—innocent
children in their nightclothes.
FORSYTHE: And what made it harder was that there was—what made it the hardest was that James was of borderline I.Q., borderline retarded, as I recall his
I.Q. was around sixty-nine or seventy.
FORSYTHE: He was in many respects childlike and was a grown man, a young man, I don't remember his age, I guess in his early twenties, but I don't recall
exactly, but literally it was like talking to a six or seven or eight-year-old many times. And so, it was—as horrible as James' crime was, crimes, in talking to him you didn't feel a revulsion,
you didn't feel a hatred.
FORSYTHE: You didn't feel an antipathy that you would if were some sort of hard criminal or psychopath or whatever. There was this childlike nature to him
that you just completely dissociated personage from anybody that could have committed that.
FORSYTHE: I may be getting more into this at this point than you want, but you become aware of the facts pretty quickly when you get into a case like this.
You start learning real fast. And of course the district attorney didn't have much choice, if they were going to prosecute death penalty cases, than to announce that they were going to
FORSYTHE: And let me say that in Travis County, not many death penalty cases are prosecuted. This is not Dallas. This is not Houston, and Ronnie Earle, who
has been the D.A. since before I was a lawyer, always took death penalty cases extremely seriously.
FORSYTHE: He always had committees and whatnot of senior lawyers who would decide whether this case, if it merits it or not, so he wouldn't just go with any
case that might fit the statutory elements. It was a whole level beyond that. We're going to really scrutinize these cases and only a select few of the worst of the worst are we going to seek
the death penalty.
FORSYTHE: They've always taken it very seriously. I know that you've studied this and there are really relatively few death penalty prosecutions in Travis
FORSYTHE: But this was one where what could you do? If you were going to have a death penalty and you're an elected official and you look at this stuff, and
three innocent children murdered in their sleep in the course the rape and burglary, it just was mind-boggling.
FORSYTHE: And nobody was surprised when they said they would seek the death penalty. I recall, that was never a close call. Those were the cards that were
dealt from the beginning. So Chris and I had to jump into the case. And in those days, death penalty cases were even more poorly funded than they are now.
FORSYTHE: This has always been a huge issue, that it's almost always court-appointed lawyers. Probably the last person I can think of in Texas that was tried
a death penalty case that could hire his own lawyer was Cullen Davis in Ft. Worth who hired "Racehorse" Haynes.
FORSYTHE: But you don't get many multi-millionaires charged with death penalty cases, with capital murder.
FORSYTHE: It's almost always someone who can't afford it, and they're in jail and they can't make bond, of course, or there is no bond, and that was
certainly the case. James was from an extremely poor family, lots of siblings and a single mom, and very little means of support, and so we're his court-appointed lawyers.
FORSYTHE: There was some money for an investigator. The judges would give you a little money for an investigator, and that was it. Now these days, as the
death penalty practice has focused and changed, and been more scrutinized.
FORSYTHE: My understanding is, I don't do death penalty work anymore but my partners do, is that it's almost automatic that the defense team is given money
for what's called a mitigation specialist, which is a person with usually a social work background.
FORSYTHE: The guy they've used, Jerry Bynt is an expert in this. He's a social worker and highly qualified and they will begin from the beginning gathering
all the information about the defendant that might call for mercy, that might call for leniency, that might call for a life sentence rather than death, whatever.
FORSYTHE: They're not investigators who work on the guilt/innocence—did he do it or did he not do it? They're ones who take the situation where either it
looks pretty clear that the guy is going to get convicted and then the question will be life or death or in case he does, we have to be ready for that possibility and they start working up the
background and they will find all the mitigation.
FORSYTHE: They will interview people from the time the person was a kid. They will find everything that could have happened to this person to make their mind
skew in such a way that they could end up committing an unspeakable crime, and they will find any good deed the person has ever done.
FORSYTHE: At least this is their job and they are very good at it. In those days we didn't have that. It was Gunter, it was me, and an investigator who we
got very little money for, and I'm not criticizing Judge Wisser; that was the practice. Judge Wisser was always generous. We probably got more than was common.
FORSYTHE: You'd get, I don't remember, a few hundred dollars, or a thousand or two, whatever it was, probably a thousand or two for the death penalty, but
not much, and you'd have an investigator who'd go spend a few hours on it. But mainly it was us. It was the lawyers.
FORSYTHE: But we were young and we were full of fire and we had a lot of energy and so we took it on. But you can imagine that case became a huge part of our
daily practice, our daily work, because there was so much to do that you have to minimize taking on new cases.
FORSYTHE: You have to limit the time you give to other cases. It really becomes something that if you're doing it right, you're going to almost be doing some
work every day for months in advance of the trial. And that's what it was.
FORSYTHE: Gunter and I had a pretty good work ethic, so we got after it and started filling up boxes and filling up files and doing everything we could
possibly think of to defend this poor fellow, James Carl Lee Davis.
FORSYTHE: And so your family life suffers, and your—well, I wasn't married at that time I guess, but I can remember early on. I wasn't married. I didn't
marry my wife until 1988. I met her in eighty-seven, this was eighty-four you said. I had to think about that.
FORSYTHE: So I was still single at the time, but it's funny, I can remember spending so much time on the case that my girlfriend at the time said "Gee, I
wish I were James Carl Lee Davis," kind of half-kidding, because what she meant was that at the time he got all my attention and she didn't and I'm sure that was quite true, you get so focused
FORSYTHE: My wife could probably sympathize with that because I've had other cases where she probably felt like I spent too much time on that, but that's
what I mean by turning your life upside down. You just have to obsess on the case for quite a long time because the state's gonna try to kill your client.
FORSYTHE: That's different from anything. It's qualitatively, quantitatively, different. They're gonna try to kill your client. And you're the only thing
that stands from the state doing that and not doing that.
RAYMOND: You said that when you talked to James he was in many ways childlike. He was like talking to a six or seven or eight-year-old. Can you tell me a
little bit more about that? Were these conversations taking place in the jail? Just tell me about your interactions with him.
ANDREW FORSYTHE: Always in the jail, because once he was arrested—and he was arrested before we were appointed, of course. The joke in the courthouse used to
FORSYTHE: well you make sure the police have got their confession and then you appoint the lawyers, and James had made, as I recall, a kind of confession, as
often happens where you don't really come out and say "I did this, this, and this," but you kind of say you did all these things leading up to it, and then things get fuzzy and I was in a haze,
and I don't remember the next thing.
FORSYTHE: But it's not hard to piece together with all the other evidence the state had in this case, frankly. But they had a long interrogation with
FORSYTHE: That's not a fair fight; he really was infantile in many ways, and needless to say, the best interrogators on the Austin police force were involved
who, interestingly, in contrast to all the cop TV shows that you see, when the interrogators are always beating people up and getting in their face and threatening them.
FORSYTHE: I've always found out that the best interrogators were the nice guys that got your confidence and treated you nice and gave you a cigarette and
drove you out for a hamburger or whatever they did and that kind of thing, they got the most confessions.
FORSYTHE: I think as I recall, and I don't know if I remember this right, I can't remember if it was this case or another one, but Dave Dealy over at the
Austin police department, I know that it was on a later case, I don't remember if he worked on James' case,
FORSYTHE: but he was one of the greatest at that; a genteel fellow from South Carolina as I recall, since retired, nicest guy in the world, and he was a
terrific confession getter
FORSYTHE: ‘cause he was— just because he was such a nice guy and it was hard not to talk to him. But in any event, they got plenty of incriminating stuff
from James, and that wasn't hard. Not answering your question, but it was to give you an idea of James, he was— he had no guile, he was simplistic.
FORSYTHE: You asked for an example of what I meant, and yes, we were talking to him in the jail, always. Let me tell you a little vignette that I remembered
in thinking about this, but I'm gonna fast forward all the way to the trial. Does that bother you, to take it out of order?
RAYMOND: No, go ahead please.
ANDREW FORSYTHE: I tend to think in a very linear fashion most times, so maybe it bothers me a little bit, but a year later— and I think we probably prepared
this case a year as I recall, and we're having the trial, and it's high drama, of course, his life is on the line, and there's this terrible testimony, these God-awful photos of those poor
murdered children and everything else.
FORSYTHE: And there's so much else that I can't remember from that trial, but during final argument, and this would have been final argument at the death
penalty stage, at the sentencing stage, of course.
FORSYTHE: Texas has bifurcated trials, and the first stage, is he guilty or is he not guilty, and James had been found guilty of capital murder; that had not
been a problem, they had tons of evidence.
FORSYTHE: One of the children, there was another child who was not murdered, who survived, and I don't even think it was her bed, as I recall, but he was an
eyewitness, and he knew James. He was a neighbor. They had an eyewitness, they had physical evidence, they found the pipe, they had, as I recall, James more or less confessed.
FORSYTHE: They had tons of evidence, and I don't ever remember that there was much question that guilt and innocence would be anything but a gimme to the
state, a giveaway, that they would win that easily. So the question, of course, was does he get life in prison or does he get the death penalty?
FORSYTHE: And so that was where all the focus was, and we came to the conclusion that that second part of the trial, and there were final arguments, and you
can imagine it was extremely emotional.
FORSYTHE: And the prosecutor, who was Brenda Kennedy, who is now a district judge here in Travis County, gave one of the most, if not the most, powerful
final arguments for the state I've ever seen—holding up those photos of those murdered children, and she said that she—
FORSYTHE: she held up pictures of those children in their Easter finest from another time when they were alive and healthy and smiling, and she said, "This
is God's work," and then she held up those photos for the jury of those murdered, bloody children, and she looked at James, and walked over by him, and she held the photos up to the jury and
said, "And this is his work. This is the devil's work."
FORSYTHE: And I'm telling you, it was tough. It was tough. It was tough. Gunter gave his final argument for that, but of course the state gets to conclude
arguments, but before that time, Gunter had given our best arguments, better than mine, and was very emotional himself.
FORSYTHE: Of course, and you have to understand that when you get to that point in this case, after giving it half of your life for the last year, this is
the absolute epiphany, this is the release of all the tension, all the thoughts, all of the strain for the lawyer, as well as the climax of the case, so it is very common for the lawyers to be
emotional, not only because of the facts of the case but for all they put into this.
FORSYTHE: Gunter gave his summation and he was virtually in tears by the end of it, and there was, in spite of the brutality, and the carnage that James had
wrought in this case, there was another side to this case because of his childlike nature. Again, I'm getting ahead of myself, but the evidence had showed that.
FORSYTHE: We had managed to put on evidence of that, and the jury had seen that, and it was clear to the jury that they basically had in front of them a
child in a man's body who had committed unspeakable crimes, so it's not easy to give a death penalty in those circumstances.
FORSYTHE: The jury was just emotionally distraught themselves. As we were in the arguments and emotions were at this high pitch and Gunter finished his
concluding argument asking that James' life be spared and invoking what he was, which was a child really.
FORSYTHE: And as he sat down, he was on the verge of tears, probably we all were, and James looked over to Chris, and said in probably in a loud enough voice
for most in the courtroom to hear, "Are you okay? Are you okay?"
FORSYTHE: And it was just this moment where I don't know if James even understood what was being said. But this man that he had come to like and have
confidence in, who'd come to be almost a companion in a way over the last year, had seemed so upset and I don't think James really understood why. He was worried about Chris.
FORSYTHE: Chris was up here trying to save his life, and that wasn't the drama that James was seeing or understanding. He saw that Chris was upset and he
asked, "Are you okay? Are you going to be all right?" And it was such a moment of insight to me that my God, this really is a child.
FORSYTHE: All he can see is that his buddy Chris is upset. He, I really don't think had a clue of what was really being played out there in front of him, and
that it involved him, and whether he lived or not. So yes, that's what I mean as an example of James' nature.
RAYMOND: When you said—I don't know where to start. You said that you'd spent a year, about a year, whatever it was, filling up boxes and boxes, what were
those boxes full of? What did your investigation consist of? What were you focusing on?
ANDREW FORSYTHE: Well, as I said there are two parts to a death penalty trial—a capital murder trial. The first is, is he guilty or not guilty, and the
second is, if he is guilty—if he's found not guilty, of course he goes home.
FORSYTHE: That doesn't happen very often in death penalty cases. For some reason the evidence always seems to be overwhelming in guilt/innocence. In the
second phase, does he get life in prison or does he get death.
FORSYTHE: That's like two different trials, and even though as I said the first part of the trial never had much doubt in a way that James would be found
guilty, or certainly we knew the odds were very strong of that, based on the overwhelming evidence of guilt they had;
FORSYTHE: there's always legal attacks. And even though there may be a lot of evidence and the commonsense reaction is that well yeah, he did it, he's
guilty, there's always legal attacks of course, under Texas law, under any law, procedural angles, flaws in the indictment, search and seizure issues, was the confession, such as it was, taken
properly, these kind of things that you have to work exhaustively.
FORSYTHE: So even if you know your chances of winning at guilt/innocence or maybe getting a confession thrown out because it was illegally obtained are one
in ten, one in a hundred in a serious case, and more than anything in a death penalty case, you have to explore every angle.
FORSYTHE: So even though we knew the odds were very stout against us, we had to spend hours and hours and hours and hours preparing on a hearing to try to
exclude the confession, or get the murder weapon thrown out, or whatever it was—all the legal angles, because a man's life was on the line.
FORSYTHE: This was the most serious thing. Our work is going to be scrutinized by the appellate courts, who are not hesitant to say the lawyers didn't do
their job and were ineffective assistance, or ineffective counsel in the case if they think they didn't do their job properly, of course.
FORSYTHE: So your ego's in it, you know the whole courthouse is watching you, you know the prosecutors, your opponents are watching you, the judge, everyone.
So you're on trial along with the client.
FORSYTHE: It's the ultimate board certification exam for the lawyer. Your paper's being graded as well, so there's ego in that. And there's
self-preservation, and there's self-respect and that kind of thing, and of course, you're also trying to do what's right for the client, of course.
FORSYTHE: So you spend tons and tons of time working the legal angles on the first part of the trial and of course there's a whole ‘nother set of challenges
in death penalty cases that don't apply to other cases and that's challenges to the death penalty and challenges on death penalty procedure.
FORSYTHE: There's, as you know, there's a different way to pick a jury, there's a different way that you do many, many things in a death penalty case that
are unique to that practice. And one reason I don't do those anymore is because you have to stay up on all the latest trends, the latest arguments.
FORSYTHE: Things that are successful today, nobody but the imaginative lawyer that thought them up five years ago thought of it. Today we have challenges on
the constitutionality of the means of lethal injection. In Texas it looks like they've skated on that for awhile, but there's always something.
FORSYTHE: There's always something that's coming up that's a new issue, and you have to try to see ahead, you have to try to be prescient and see what it is
that nobody thinks this is an issue now, but what if, what if, somebody on the Supreme Court got interested in this a few years ago, and as this guy's appeal makes its way up, let's try to rack
our brain and let's think if there's any kind of novel argument we can make.
FORSYTHE: And truly some of the most successful arguments were ones where at the time people thought that they were silly. And I'm sure you've explored that
a lot and I can't think of an example off the top of my head, but there's a million of them, of things that people just never thought— well the death penalty instructions. In Texas, a jury has
to answer a certain special issues in order to find someone guilty.
FORSYTHE: We had all this business about all these other mitigating circumstances in the Penry case where people could decide that for whatever reason that
they didn't really have to articulate, there are reasons to be merciful in this case, to not impose the death penalty, and we didn't have that instruction in James Carl Lee Davis' case.
FORSYTHE: Again, I'm having to dust out the cobwebs and remember procedure from a long, long time ago, but in those days, the only death penalty question
was, once a person's found guilty, in other words, the issues the jury had to decide at the sentencing phase were whether someone posed a future danger, whether there was a—
FORSYTHE: you know the language better than I do, but whether there was a strong likelihood the there would be dangerousness in the future; they called it
FORSYTHE: And the other one was whether the crime was committed deliberately, I think, which is almost a throwaway issue, because if they were already been
found guilty beyond a reasonable doubt of knowingly and intentionally committing a murder, that's just almost sophistry to try to figure out well how could they have done it intentionally but
FORSYTHE: Nobody ever won on that ground. And was there a third issue? I don't remember at that time. We've gone back and forth on a number of issues and
what the issues were, but I think that at that time those were the only issues— just those two.
FORSYTHE: So, the issue in James' case, well, you can attack that procedurally and we probably filed some motions—in fact I'm sure we did. We filed a bucket
full of issues.
FORSYTHE: But in any event, we didn't get an instruction that would allow the jury to consider other reasons for mercy, which would have applied so well in
James' case because of his borderline intellect, his childlike nature. He had had brain damage as a child—this is beginning to come back to me a little bit now. He had had a difficult
FORSYTHE: I'm sorry it's been so long since I've looked at this—this was twenty some-odd years ago and now that you bring it up—and so we, I'm sure, I hope,
we attacked the way the special issues were given and that it was so narrow to consider only whether or not someone was likely to be a danger in the future because that didn't really answer
what the compelling mercy issue in James' case was.
FORSYTHE: He did have limited brain—limited intellect and he did have some organic brain damage. As I recall now, and this again, it's coming back to me—a
lot of what we did was go through hospital records. We had all kinds of hospital records starting when he was four-years-old, I think, or maybe even at birth.
FORSYTHE: He'd had a difficult birth and he'd had some organic brain injury and it had caused some real behavioral problems from the early age.
FORSYTHE: I can now remember some record from the distant past when he was a little boy, four or five, running through the halls of the hospital or something
and making sexually inappropriate comments to the nurses, exhibiting bizarre behavior, and the doctors had said, and I'm sure rightly, "This is organic brain damage. This isn't something this
child decided to do. He's not right."
FORSYTHE: And we were able to show that by hard evidence and by records and I think he'd been committed to Austin State Hospital. I don't know if you can
look at the transcript but I think he had— maybe several times. Yeah, so he really had this history.
FORSYTHE: But it doesn't fit within the special issues and this is the conundrum. Because really those mental problems, the low I.Q., the susceptibility to
maybe drug abuse, which is happening in this case at the time of the crime, as best I can recall, he was at times getting on alcohol and marijuana, and I don't remember if speed was part of
ANDREW FORSYTHE: Amphetamines. It was a bad cocktail for so limited ability over his brain function anyway, and that played a huge part.
FORSYTHE: But when a jury looks at this and says, okay, here is a guy who may be prone to abusing drugs, who has limited I.Q., who has organic brain damage,
who has a mental history, mental illness, documented been committed to the state hospital more than once, etcetera, et cetera, how does that make him less dangerous?
FORSYTHE: Most jurors probably are going to say that makes him more dangerous. That makes it less likely that the guy could ever be rehabilitated, that he
could ever be safe, that he could ever not be dangerous. And yet morally, the problem is, it's not his fault, or at least not the most of it, a lot of it.
FORSYTHE: This kid never had a chance. He was organically brain damaged, his upbringing was pitiful— extreme poverty, very little education, terrible home
life, single mom who was overwhelmed with kids and poverty, and just all the usual stuff you see that's just so heartbreaking in these cases to where anybody who looks at this just says, this
kid never had a chance.
FORSYTHE: He never had a chance. And then when you have that childlike aspect of him coupled with that, where just talking to him for a minute you can see
that you're not talking to an adult, it's heartbreaking.
FORSYTHE: But there was no way at that time to fit that into a mercy vote. You're left with almost arguing jury nullification, which means getting the jury
to nullify the judge's charge based on a higher calling that that may be what the instructions say, but we're going to follow our heart rather than the legal instruction and just cut him some
FORSYTHE: So you're almost arguing for jury nullification which is a very hard argument and you have to tiptoe because if you just come out and just say it
of course, you'll be objected to by the state, rightly so.
FORSYTHE: The defense lawyer's asking the jury, your honor, to disregard the law and to make their decision on an improper basis that's not our law and the
judge is going to say, "Sustained. Ladies and gentleman of the jury, you're to follow the instructions of the court."
FORSYTHE: So you have to tiptoe that line and basically try to take that moral argument and that mercy argument and feed it into a legal issue kind of with a
wink. Ladies and gentleman, he'll be in prison so long with a life sentence and never gonna get out anyway, this just isn't a case that deserves the death penalty because this guy is a
FORSYTHE: In a more subtle way, but you have to walk that line so that they are given a legal way to follow their heart and to give mercy to somebody who
under the legal instructions probably isn't gonna get it.
FORSYTHE: So we had to make those kinds of arguments and portray ourselves and portray our case in that way which was— whether if was fake or intuitive, that
was our case. And the jury was out a long time.
FORSYTHE: Again, I haven't looked at this in a long time but gosh they were out a long time, and that was heartening to us ‘cause the evidence was very
overwhelming. In the first phase they weren't out very long at all. They found him guilty as I recall without much problem.
FORSYTHE: But they were out a long time on penalty. They came back with the death penalty answering the special issues against us. And I remember that
several on the jury, and these were grown men and women, serious, serious people, were broken up.
FORSYTHE: I mean they were crying or on the verge of tears, and as well they should have been because it was that kind of case where you could not feel good
about giving this person the death penalty—couldn't give it.
FORSYTHE: And they felt compelled to, under the facts and under the brutality and under the court's instructions, and we couldn't fault them for that either
in a moral way. But you could see that they were broken up, and I remember grown men with tears in their eyes when the verdict was read. They did not feel good.
RAYMOND: Did you talk to any of the jurors afterwards?
ANDREW FORSYTHE: We did, and I don't remember their comments right now. I just know how broken up they were. I do remember one gentleman who had kind of
hidden something out of voir dire. It seems to me that he'd had some aspirations to law enforcement.
FORSYTHE: I don't remember if he was a security guard or volunteer fireman or something who kind of wanted to be a police officer, and those aren't the kinds
you normally want on a jury as a defense lawyer but you only get so many strikes.
FORSYTHE: And I remember we ended up saying, Well, there's somebody else we wanted off more than him and we didn't strike him, or maybe we ran out of
strikes, I don't remember, and he ended up on the jury and sure enough, he later became a sheriff's deputy, and I always would see that guy around the courthouse.
FORSYTHE: And it was kind of a chilling feeling that it was almost like his breaking into law enforcement was voting for the death penalty in this case
somehow, and I don't know. It was kind of an odd deal. I don't hold anything against him, but it was clear that he kind of wanted to be a cop and we had to leave him on there and he became a
cop. So there you go.
RAYMOND: You mentioned conundrums, the conundrum about future dangerousness and the mental health and mental retardation. Well, you didn't say mental
retardation but that low intellectual functioning.
ANDREW FORSYTHE: He was borderline retarded, that's right.
RAYMOND: Reading through the transcript there also seems to be a conundrum about the psychiatric exams in the first place, earlier in terms of those kinds of
issues. Do you remember, on the one hand, competency might have been an issue, guilty by reason of insanity. Did you try to go for either?
ANDREW FORSYTHE: Yeah, I don't remember on competency. I don't remember if— I'm sure we did examine him for competency just because that would be something
you do. At least I think we did, but I don't remember that being a compelling issue in that case, (phone rings). Excuse me one second. I'm sorry.
FORSYTHE: I don't remember competency being where we had a huge fight. I just don't. Competency is your ability to understand the proceedings and to be
able to talk to your lawyer. And James could on one level although he couldn't in another.
FORSYTHE: He could talk to us; we could explain things and he could tell us his version of what happened and what didn't happen, that kind of thing. So in a
basic way he was competent. As I say he did not understand the big picture. He didn't understand the significance of things.
FORSYTHE: He, as I said, didn't really understand the drama was during final arguments, but competence doesn't require much as a legal matter. It's
basically I know you're the lawyer. I know that's the judge. I know I'm charged with murder. I know that's the jury. Here's what I say happened. I understand what they say happened. It's pretty
FORSYTHE: Insanity, now that you mention it, was a much more interesting issue. And what happened in James' case is that we actually gave the state notice
that we were going to or might plead insanity.
FORSYTHE: Under Texas law at the time, and I assume it's still this way, I haven't done this for a long time, the defense doesn't have to show much of their
hand in any criminal trial. You don't have to show what you're going to do, what your defense is, ahead of time in many respects.
FORSYTHE: But one thing you always had to do was you did have to file a notice that you may rely on a defense of insanity in order for the state to have a
chance for their psychiatrists to also interview your guy and to come up with their rebuttal case to insanity and why they thought he was legally sane.
FORSYTHE: So to preserve the possibility of raising that defense, you have to put the state on notice by filing a formal written notice. And we did it early
on in James' case. It was an obvious thing to do. He did have the mental history and the limited functioning and that kind of thing.
FORSYTHE: And there were a lot of defenses out there, but insanity itself is very difficult defense to prove. I don't remember, there were some changes in
the law during my career and I don't remember when these things happened as to who has the burden and what the definition is and that kind of thing.
FORSYTHE: But it's always been very, very difficult to prove and an almost certain loser as a defense. Leon Grizzard, who is a good friend of mine and a
wonderful criminal lawyer here in town, has done a bunch of capital cases himself and is a famous wit. Once said, "You have to be crazy to plea insanity."
FORSYTHE: And he's exactly right. That's it. I can remember one time it's worked in a contested trial in Travis County in my career— and that was actually
fairly recently. In other words, usually a person has to be so crazy, so insane, that even the state's psychiatrists all agree this guy is insane and he needs to go to a mental hospital rather
than prison or death row.
FORSYTHE: And then that's been done a number of times. But when the state says he's sane and the defense says he's insane, and they actually fight over that
and the defense wins; there was a case a couple of years ago, a very good lawyer named Ken Erickson pulled it off and a person was found not guilty by reason of insanity.
FORSYTHE: It wasn't a capital case, I don't believe, and kudos to him because I can't remember another time in my lifetime where it's been done. But yes, we
raised that. We had James examined by psychiatrists and psychologists.
FORSYTHE: We knew that the state was going to have Richard Coons and George Parker, their psychiatrist and psychologist, testify against us, and those two
guys are very, very good. And we took it up to the time of trial because we wanted to keep them guessing. We had actually decided some time before that we were not going to use the insanity
FORSYTHE: And I can't remember all the reasons why not but they were strategic, obviously, that if we raised that, there were things the state was going to
get to do back to us that were going to hurt bad, and we thought it minimized what chance we did have to save his life.
FORSYTHE: So we frankly wanted to keep the state guessing. We wanted them to use some of their resources in preparing on that but it ended up being a bluff,
really, and at the end we let them know we weren't, whenever we had to, that we were not going to go forward with the insanity defense.
FORSYTHE: We didn't think it was a winner and we thought there was more downside to upside.
RAYMOND: Okay, I want to go back to what this was like for you. Now you had been, for a short time, a prosecutor. Had you ever been on the other side of a
death penalty case?
ANDREW FORSYTHE: No. Because, look, that's a short time, three and a half years, but as a felony prosecutor it was fairly short.
FORSYTHE: As a felony prosecutor I really wasn't there that long, and I had never even risen to the rank of court chief, so a younger prosecutor like myself
wouldn't have been given that opportunity to be on that kind of a case. I hadn't reached that point. I was having a great time.
FORSYTHE: I wished I'd stayed long enough to do that, but I got, as I said, a job offer I couldn't turn down, so I left. But no, I hadn't prosecuted that.
I'd prosecuted murder cases, but not death penalty cases.
RAYMOND: So James Carl Lee was your first defense, and your first defense, and the first, either—
ANDREW FORSYTHE: Yes. First death penalty case, yes, either way. That's right, that's right. I'd participated as a prosecutor, I remember now, in the capital
murder on as second chair, but I think on that one we ended up—
FORSYTHE: it was going to be life— we were going to seeking life for something, and we had a contested competency trial, maybe on a serious mental health
issue. The defense lawyer was the late Herman Goetcher and Tom Autry— two legends around here, both gone now, so to answer your question though, that was my first death penalty case.
RAYMOND: What was it like— and was it also, Mr. Gunter's first death penalty case?
ANDREW FORSYTHE: Yes.
RAYMOND: What was it like to be doing this, when both of you were new to it. I know you said you were working incredibly hard, around constantly. What were
the emotions? What were the— how besides the time did it affect you?
ANDREW FORSYTHE: Well, you know, I guess we didn't lack confidence because when you get out of the D.A.'s office you think you're pretty hot stuff and you've
tried all of this stuff and done all this. We were full of fire and young and we felt we were up to it and it is pretty labor-intensive.
FORSYTHE: We were young and energetic so that was probably a fairly good fit. But there was just so much to do, as I said, not having the extra help that you
get now, we were doing it ourselves. The best witnesses we turned up, and as you can imagine, they were at the punishment phase.
FORSYTHE: They were on this great issue of does he deserve life or does he deserve death basically, where we went back to his elementary school, and I'm sure
junior high and high school, too. We found—we had his school records, and we tried to locate teachers.
FORSYTHE: And we had some success, and again, I think this was elementary, it may have been junior high; it may even have been high school.
FORSYTHE: That part is fogging up a little bit, but we found some teachers who could express in a very common sense, lay person's way, what we felt was
really at the heart of this, which was 99.9 per cent of the time, or at least pretty close to that, James was really not an evil guy. He was not a mean, sadistic guy. He was not a bully.
FORSYTHE: Not like so many of these terrible defendants that you see in death penalty cases are with all this history of all these mean, ugly things they've
FORSYTHE: And these teachers were so insightful, as teachers always are, and memories, my God, they remembered him from, you know, many years before, and of
course read the awful headlines and saw what he was accused of doing now and all this.
FORSYTHE: But we found some of these teachers, and frankly I don't remember finding any teaches who were really negative on him as far as "He was awful," or
"He was mean," or "He was picking on other kids," or that kind of thing, or "He was a huge problem in class."
FORSYTHE: I remember there were some who were neutral or indifferent or didn't remember him that well. But we found a handful that remembered him fine. That
this was a nice kid. This was a kind of sweet kid. He was slow, his I.Q. was very limited and that kind of thing. He had his problems, but he wasn't a mean kid.
FORSYTHE: And they could remember some stories about him. They could remember things that he did that were nice, that showed that he was a decent kid, that
he had a tough life, these kinds of things. I think we got three of those teachers to come testify, and they were the best thing we had in that whole trial.
FORSYTHE: And one of them in particular was a young guy, I can almost picture him, I don't remember his name. He was extremely articulate. He remembered
vignettes, he remembered anecdotes, he remembered things about James. He talked to that jury. We couldn't have found a better witness.
FORSYTHE: He would turn to the jury and tell them little stories about James and his class. And understand that the penalty phase in a capital murder
prosecution in Texas, one good thing, has been that the rules of evidence have always been pretty wide open. Almost anything is admissible.
FORSYTHE: And parts of that is that's the way the law is, and partially any decent-hearted judge is gonna pretty much let the defense put on whatever they
can put on to save this poor bastard's life. Judge Wisser, being a particularly decent person, you could put on pretty much what you got— almost always.
FORSYTHE: Anyway, we put these guys on, and I remember that one teacher, that male teacher, who remembered James and telling those stories and talking to
Andrew Forsythe is a criminal defense attorney and has been practicing law in Austin, Texas since graduating from the University of Texas School of Law in 1978. In Video 1, Forsythe discusses his professional background; his stint as a prosecutor; his path to practicing as a criminal defense attorney; and his experiences representing James Carl Lee Davis, who was charged with capital murder in 1984, convicted and sentenced to death in 1985, and executed on September 9, 1997. In the second part of Video 1 and the first part of Video 2, Forsythe continues discussing the case of James Carl Lee Davis, including the questions of developmental disability and mental illness that were raised as mitigating factors in his defense; other memories of the trial; and visiting Davis on Death Row shortly before his execution. In the second part of Video 2, Forsythe discusses representing Kenneth McDuff at trial beginning in 1994 for a 1991 capital murder in Austin, Texas, and for which McDuff was ultimately sentenced to death. Forsythe discusses the unique challenges of defending McDuff, a man whose 1968 death sentence had been commuted to life after the U.S. Supreme Court struck down the death penalty as unconstitutional in 1972, and who, after his parole in 1989, was sentenced to death a second time for a 1992 murder in Waco, Texas, a murder for which he was eventually executed on November 17, 1998. Forsythe discusses working on the case with his friend and colleague Chris Gunter; the effects of the trial on his personal and professional life; the legal and logistical challenges that arose, including changing venue to Seguin, Guadalupe County due to the publicity surrounding the case; interactions with jurors; and his thoughts on the death penalty in general and its implementation in Texas. This interview took place in Forsythe's office in Austin, Travis County, Texas on May 21, 2008.
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Virginia Marie RaymondRole: Interviewer
Kimberly Ambrosini-BaconRole: Videographer
Jorge Antonio RenaudRole: Transcriber
Kimberly Ambrosini-BaconRole: Proofreader
North America--United States--Texas
North America--United States--Texas--Austin
Type of Resource:
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