Memories of Phil Nelson in the Charles Rector Case
of "Interview with Mr. Andrew Forsythe"
People and Organizations
Davis, James Carl Lee
Flowers, Judge Wilford
Houston (Harris County)
Huntsville (Walter County)
Livingston (Polk County)
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VIRGINIA RAYMOND: Back to James Carl Lee Davis. You said that these teachers were really helpful and really great. Did you—what about Mr. Davis' family? You
said that they were a troubled family. What kind of participation do you remember, or interactions with them—
ANDREW FORSYTHE: I remember his mother, I remember his grandmother, and he had some siblings. I remember going over to his home several times. I remember
going to the little stores and stuff where he used to frequent as a kid, that kind of thing.
FORSYTHE: His family was in very severe poverty and to be honest, I don't think they'd been a lot of help to James and they weren't a whole lot of help to
us, really. There just wasn't that much they could say or do and I'm not sure they had enough insight to—to them it was just their life.
FORSYTHE: Objectively looking at it, it wasn't a very appealing or great life, but they weren't a big part of the defense in this case. They were there. I
seem to remember his grandmother being a very strong influence on him, but they weren't a huge part of this.
FORSYTHE: And as odd as that may sound, I don't remember if his mother was at the trial. I don't remember. Isn't that funny? I don't remember.
RAYMOND: Okay, all right. Do you remember if his grandmother was present at the trial?
ANDREW FORSYTHE: I don't even remember if his grandmother was still living by the time of the trial. I just remember she had been a big influence in his
life. Gosh, I hate to say this because it may not be true, but I don't remember his family being at the trial.
FORSYTHE: They may have been. If they were, I don't think they testified. God, I could be even wrong about that. If they did, I guess it wasn't a big point
of the trial, odd as that may be.
FORSYTHE: You know, you think of a death penalty guy and the guy's mother is on the stand and his mother's there, begging for the son's life, and that's
often one of the most compelling testimony in the whole trial. And it just wasn't with James. They either didn't testify or, frankly it just didn't stay on my radar so it wasn't a big part at
RAYMOND: Well when you do think about the trial, what are the things that you do remember? When I say James Carl Lee Davis, when I called you, what are the
things that you did think about now, today as we're talking about?
ANDREW FORSYTHE: Some of them I told you about because I made about three or four notes. Other things, little things, just funny things that stick in your
brain, I remember one of the few times in my career as a defense lawyer I was given Brady material by the prosecutor.
FORSYTHE: Brady material, for those of you who don't know, is evidence that might show that your client is not guilty or that a state's witness is not being
truthful or there is some mitigation to his punishment, in other words that is helpful evidence to the defense and if the prosecutor becomes aware of that, they're supposed to give it to the
FORSYTHE: The doctrine of Brady v. Maryland, an old Supreme Court case, and it's a great case in theory, and it's a principle that's out there and it's very
important, but in practice, it's very rare for a prosecutor to come up to you and say, "By the way, I've come upon some Brady material, and here it is."
FORSYTHE: Now in defense of prosecutors, we have fairly—quite liberal discovery in Travis County, so lots of times we've become aware of that evidence in
their file and they know we've already gotten it and so it's not so much a ceremony. But, still and all, there's probably lots of times it should be given and its not.
FORSYTHE: But I do remember in this case, and when the stakes are so high—You gotta understand that the lawyers—you get so competitive in these cases that
you want to win. I mean, you want to win, however you define winning. In the James case, it would have been to spare the death penalty.
FORSYTHE: But you get so competitive, and the defense, you're bound by the rules of ethics, but you certainly don't have to give evidence over to the state.
If you find something that's incriminating or damning, you certainly don't have to give it to the prosecutor. In fact, you're forbidden to do that.
FORSYTHE: The prosecutors, on the other hand, have this dual role in that they are supposed to be hard-nosed prosecutors and of course they're human beings
and they work tons and tons and tons and tons of hours also and they want to win, they want to win.
FORSYTHE: You become so focused and then all of a sudden you come upon some evidence that is hurtful to your cause and helpful to the other side and you've
got to turn around and give it to them. It's just counter intuitive; it goes against everything that you are as a human being when you're in a competitive enterprise to all of a sudden handicap
FORSYTHE: But I remember in that case, David Reynolds, who was the other prosecutor and is now a criminal defense lawyer, and had actually been a criminal
defense lawyer before he'd been a prosecutor, which was a little uncommon in those days.
FORSYTHE: It was always prosecutor and then criminal defense lawyer, but Reynolds had worked for Frank Maloney and then he went to the D.A.'s office for a
while and prosecuted, and he and Brenda Kennedy prosecuted James Davis, and then David sometime thereafter became a defense lawyer again and has been one ever since— office is a block from
FORSYTHE: But anyhow, David, I remember him walking up to us one day and saying, "Here's some Brady material." And I don't remember what it was, but I
remember him doing it because it is so unusual. So I've always appreciated David handing me that. I do remember that little vignette.
FORSYTHE: I remember learning a lesson also maybe about this competitiveness, when you get into this trial and maybe how people change their testimony and
maybe how people play on a team that I knew and I should have known even better, but I was still young and maybe a little idealistic in certain ways, and it had to do with a policeman and what
he did on the witness stand.
FORSYTHE:I'm not gonna name him but I will remember him forever because as Chris and I were going through our investigation and talking to everybody who
might have something about James, particularly when he was a kid and that kind of thing in trying to build this theme of his innocence and his childlike nature and not being a bad guy, not
being an ugly bully-type guy or a violent guy or that kind of thing.
FORSYTHE: James had had a couple of arrests before but they were on minor stuff as I recall. And we ended up talking to one of the policemen who had handled
James during a previous incident or case or something, again nothing bad or ugly or violent, but somehow had had contact with James.
FORSYTHE: Maybe he had also known James from the high school. I don't remember if the policeman had been also a coach at the school, or—
FORSYTHE: I don't know, somehow he had had dealings with James when he was a teenager or whatever, and when Chris and I were working at this case we ended up
talking to that policeman at one time about this and the policeman basically told us something that sounded good to us,
FORSYTHE: "Yeah, James wasn't a bad guy. He was okay, I never had problems with him," or something, something, something. A few nice little things like that.
No big deal, but it was coming from a policeman and it fit with our theme.
FORSYTHE: Well, this policeman ended up playing some role in the latest case, in the murder case and so he was called as a witness by the state, and it was
my turn to cross examine him, and I cross examined this policeman, and of course the one good thing I wanted to get out of him was,
FORSYTHE: Well, do you remember what you told me when I interviewed you two months ago and you mentioned that James had not been a problem on this or had
been a nice guy on this or did something kind of silly or childish, or whatever it was that fit into our theme, and he looked at me and just gave me this expression, and said,
FORSYTHE: "No, I didn't say it like that. That's not what I said." I was so angry. And I was younger and I wasn't being a very good poker-faced trial lawyer
then, and I was just so obviously angry and I asked him about one or two more times, Don't you remember you telling me this and this and this?
FORSYTHE: 'Cause I'm a good note taker; I take very good notes. And this policeman just gave me this look like, no, and he said something very condescending
like, "Counselor, I'm sorry if my testimony is not what you'd like to hear, but that's not what happened."
FORSYTHE: I just turned and said, "I have no more questions for this guy. I can't talk to him anymore." And I was just red in the face, I'm sure. But it was
a lesson about when the stakes are high and somebody's committed to a team.
FORSYTHE: Looking back on it, there's probably no way I should have thought that that policeman was going to get up there and help my client in a brutal
capital murder case, but I didn't see it coming. And that was my naiveté, I guess. Some policeman may have, but this one didn't. He adhered to the line there, and I never looked at him the same
RAYMOND: Anything else about the effect of the case on you when you were actually trying to prepare for it?
ANDREW FORSYTHE: Well, probably what I should have learned is that I never want to do one of those again, but then a few years later Gunter talked me into
doing Kenneth McDuff with him, so I wasn't a fast as a learner as I should have been.
FORSYTHE: They are brutal cases and they do tend to destroy your practice, and you have to be mentally ready to do them and ready to sacrifice a lot of time
and a lot of your life to do them and that was hard, that was really hard, and it just takes so much out of you.
FORSYTHE: And of course, you question did we do it right, did we do everything right? Is there something we should have done differently. James got the death
penalty, it was affirmed, he went through all his appeals, he was later executed.
FORSYTHE: I saw him down here when he came down to get an execution date set years later, but you have to bring the person back from Huntsville, back from
Death Row to see the judge for the little formality of setting an execution date once appeals have been exhausted or it looks like they may be exhausted.
FORSYTHE: I don't know how many times that may have happened with James. Sometimes you get several execution dates set, of course, but I want to say that
this was the one where they actually executed him.
FORSYTHE: I can't swear to that, but Chris and I went over and visited him in jail, and of course, this was so odd because it was years after this trial, and
he was facing the death penalty and he was this same person. He was childlike, he was casual, he was happy to see us. He seemed to have no real understanding.
FORSYTHE: I mean, he did. He knew why he was there. He knew there was a death sentence; he knew all of those things, but not like you or I would see our
upcoming death. He just—he was childlike.
FORSYTHE: He could not relate to it as an adult normally would. And we talked about casual things, not because we were avoiding the obvious, I just don't
think he wanted to talk about that. I'm not sure how much it was on his mind. He was childlike; he was just childlike. And that's who he was, and it was just such a sad thing.
FORSYTHE: His death was such a sad thing. The death of the children—my God. Everything about that case was just so pitiful, just so awful— just a feeling of
sadness. I don't enjoy— I don't want to do that sort of work where there is that pervasive sadness, the tragedy all the time.
FORSYTHE: I think there are lawyers who feed off that, who like the drama, and thank God there are, or we wouldn't have good defense on these cases. But you
have to go to another place and you have to get so involved in that case, in that work, in that person's life and trying to save it, trying to find the good in someone where there is so much
bad, so much evil, usually.
FORSYTHE: You can almost be assured that at least in this county, that if the DA is seeking the death penalty, there is a lot of bad stuff to talk about.
They don't do it lightly here.
FORSYTHE: Going in under those circumstances, and trying to find the good and wading through that bad, and coming up with arguments—we call it, or I call it
to myself, the Mirror Test. Can I give this argument to myself in the mirror without starting to laugh, or something? Can it be taken seriously?
FORSYTHE: Can I seriously come up with reasons why you should have mercy on this guy? And there are always philosophical resistances to the death penalty.
That's always one of the themes in these cases is regardless to any of the facts to this, the death penalty is wrong.
FORSYTHE: And of course, you're walking the line there too, because these jurors have all been selected or not eliminated because they said they could
enforce the death penalty. So what you're really saying throughout the case is but this is still wrong.
FORSYTHE: You're still trying to appeal to that part of them that regardless to the facts or the special issues, or anything else, it's just wrong. You're
hoping to touch that chord in some way, and that's a nullification as well.
FORSYTHE: So there are always those arguments; I don't care who you are representing. There are always those arguments, and however you want to phrase it, I
mean you can't just come out and say, "Ladies and gentleman, don't give the death penalty because the death penalty is wrong."
FORSYTHE: The judge will instruct them not to do that. But there are other ways of getting to that. In this case, given these facts, do we really want to
FORSYTHE: You can make those arguments. In the particular case, trying to really get to what is good about this person, what would make a decent human being
not want to kill him, is so exhausting and so emotionally wrenching when there is so much negative to wade through that it's hard to do this. It's just hard.
RAYMOND: Thank you. Do you want to talk about the Kenneth McDuff case at all?
ANDREW FORSYTHE: It's up to you.
RAYMOND: That was one where you did, where he was charged for capital murder in this particular one that you did. What year was that?
ANDREW FORSYTHE: We started the trial in January of ninety-four. I can remember that one a bit better, it's more recent. We started the trial in January,
ninety-four and he did get the death penalty, but he was executed later for a different death penalty case.
RAYMOND: Right, but in your case, did he get—Oh, he got death penalty?
ANDREW FORSYTHE: He received the—I'm sorry, he received a sentence of death. But he was actually—the sentence wasn't carried out and he was executed for a
different capital crime.
RAYMOND: I see. Okay.
ANDREW FORSYTHE: Ours was still pending, and he could have well been executed for ours had he not had the other one happen a little bit sooner and the
appeals process were exhausted a little bit sooner, so they couldn't kill him twice. They would have liked to with Kenneth, I'm sure.
FORSYTHE: But they killed him for another case, for the one that was out at Waco.
RAYMOND: And what—this was also with Chris Gunter.
ANDREW FORSYTHE: Yes.
RAYMOND: What was that experience like, and particularly compared to the first one with Mr. Davis?
ANDREW FORSYTHE: Well, it was very different. Kenneth was of course a very different defendant than James Carl Lee Davis. He was not childlike. He was
probably at that time the most hated man in Texas—may still be the most hated man in Texas.
FORSYTHE: And so we did not have that theme of course of childlike innocence who just somehow things snapped and went haywire in this poor damaged brain.
Kenneth was portrayed by everyone who looked at him—prosecutors, newspapers, cops, everyone, as a horrible, horrible psychopath.
FORSYTHE: A serial killer, in the classic sense of the word, who—and this is almost unprecedented, there may have been others, but almost unprecedented, had
been given the death penalty and sent to death row for multiple murders when he was a very young man and served a long, long prison sentence, twenty some-odd years.
FORSYTHE: Death penalty in Texas ruled unconstitutional and sentence is commuted to life and ultimately paroled during a time of intense prison crowding in
Texas. So he actually hit the streets again as a middle-aged man when all the common wisdom is that most people burn out.
FORSYTHE: Terrible violent crimes are typically done when you are young and typically a young man, and not everybody, but almost everybody burns out. You
just don't see nearly as much among middle-aged people. And Kenneth had been by all accounts, a good prisoner.
FORSYTHE: He had very little in the way of misconduct. He had done his time for decades and he got out and then became accused of multiple, serial homicides
again with that time period.
FORSYTHE: So it was quite a thing for any juror or judge or anyone to consider of a person who could do that, and it chilled people to the bone—to the
FORSYTHE: And so we had that situation to deal with, which we knew from the beginning would be replayed most likely in its entirety because if you were found
guilty of capital murder in our case and we went on to the sentencing phase where everything comes into evidence, as I said before, all the good stuff, but all the bad stuff, too.
FORSYTHE: So we knew that his past would all be brought up in front of this same jury, and they would get to hear, having just heard about a brutal, brutal
murder in our case, they would then hear about multiple brutal murders twenty, thirty years ago, when he was a much younger man. And so we knew going in this was going to be a hell of a ride.
And it was.
RAYMOND: Why did you do it?
ANDREW FORSYTHE: Why did he do it?
RAYMOND: Why did you do it? I mean—
ANDREW FORSYTHE: Because Chris Gunter talked me into it. Because Gunter talked me into it and he wanted to do it. He wanted to do the case because he's a
much more hard-working lawyer than I am. He is a much more full of fire lawyer than I am.
FORSYTHE: He seeks out these impossible challenges and I'm lazier than that. But Gunter saw this as a great lawyer would, as a tremendous challenge. God,
it's like a surgeon saying this guy has zero chance of living; you want to go do brain surgery.
FORSYTHE: And Gunter—my recollection is Gunter went up there and asked for the appointment. I may be wrong but he sure didn't turn it down. I think he asked
for it. You can ask him that. But he saw this as a tremendous challenge, an opportunity, a once in a lifetime deal—and he was right about all those things.
FORSYTHE: Of course it was also a ton of work and he talked me into it because we're such great friends, and we'd done the other case and all that, and I
said okay. I said okay. So that's how it went.
RAYMOND: And by that time you were married?
ANDREW FORSYTHE: By that time I was married.
RAYMOND: Did you have kids at that point?
ANDREW FORSYTHE: I had kids at that time. I got married in eighty-eight, been with my wife in eighty-seven and got married in eighty-eight.
FORSYTHE: We tried McDuff starting in January of ninety-four. I remember because my mother had a serious stroke the month before, and I was having my house
completely remodeled which was not as dramatic as my mother's stroke, but nonetheless that all happened all at the same time as McDuff.
FORSYTHE: It was a heck of a time in my life, I'll tell you that. But to answer your question, yes, I was married. When I married my wife, she had two little
girls, so these were my stepdaughters—my daughters. I see them as my daughters. They were little.
FORSYTHE: And by that time, they were probably middle school—something like that, and we had had two more children, who were born in 1988 and 1990. So then I
had the two little ones as well.
FORSYTHE: And my baby girl, Gina, who was born in ninety, as you can see when we were doing McDuff, she was four years old, hadn't turned five yet, and I can
remember she was hearing all this stuff from the family about daddy's defending this guy, McDuff, and all the terrible things about McDuff, if you could read the newspaper or probably
understand the news.
FORSYTHE: But she could hear what her siblings were saying and that kind of thing, and I can remember putting her to bed one night, because I was in charge
of putting the kids to bed— I'd read them stories and all that, and I remember putting her and my son to bed, my little ones one night, and she had this kind of funny look on her face and she
said, "Daddy, does McDuff kill little girls?"
FORSYTHE: I said, No. Just big people. He doesn't kill little girls. I had to reassure her for awhile. She was starting to get some of the outflow from all
that mess. And then, with Kenneth we had a change of venue.
FORSYTHE: So we had all this normal stuff that you have in a capital murder case multiplied—let me first say in Kenneth's case because there were so many
other murders involved, and what I mean by that is there were—Kenneth was also suspected in several other murders at the same time as ours, since he got out of prison, including one where he
had just recently been convicted by a jury out of Waco.
FORSYTHE: They'd had a change of venue, too. They tried him in Houston. I can't remember, but the murder had occurred up in McLennan County, outside of Waco,
and he had recently gotten the death penalty on that.
FORSYTHE: Well that was going to come into evidence as well, and he was suspected in other cases, and we weren't sure how many of those the D.A. was going to
try to prove up, either in their case in chief as guilt or innocence, or if they got to punishment, which they probably were going to, and they did—at the punishment case to try to prove all
the bad stuff about Kenneth.
FORSYTHE: So we were having to basically prepare things about many, many cases—including ours. So we had that multiplier in Kenneth's case, which made it
very, very difficult. And then, we felt compelled to ask for a change in venue because the publicity against Kenneth was so horrible, and so pervasive here in Austin.
FORSYTHE: The girl—the young lady he was accused of killing was well-loved, a nice young person named Colleen Reed, lot of friends, lot of family, who didn't
know Kenneth. It was a stranger-on-stranger crime. It riveted the community that he was accused of snatching her from a car wash down on here on 5th Street and taking her off and killing
FORSYTHE: It just gave nightmares to everybody. Well of course, having allegedly been committed, according to the jury committed, by this killer—serial
killer, who had been paroled after multiple murders, and the whole angle of the parole system being corrupt and terrible and awful for having done this incompetent thing.
FORSYTHE: Kenneth ruined parole for everybody else throughout the system probably to this day. Nobody ever wants to give parole to somebody like that again.
They probably won't in our lifetime.
FORSYTHE: But there was all of that publicity, so many angles on the case. Colleen Reed's sister was an extremely vocal victim-rights person and because of
this, of course, it changed her life. And she was in the paper all the time; it was just—the publicity was just overwhelming.
FORSYTHE: The problem being, of course, that the publicity was state-wide. If it were moved, it had to be moved to somewhere in Texas. We couldn't really
escape all of this. Nonetheless, it was so strong in Austin, in Travis County, that we felt like we wouldn't even be doing our job if we didn't ask for a change of venue.
FORSYTHE: Well a change of venue is seldom requested for a lot of reasons. It doesn't succeed very often, and moreover Travis County is known as a very
educated place, a relatively liberal place.
FORSYTHE: It's probably one of the best places to try a death penalty case in Texas—probably a lot more potential jurors who are skeptical of the death
penalty, et cetera, et cetera, et cetera. So it was even an oddball thing to be asking to leave Travis County. It just had almost never been done.
FORSYTHE: Frank Smith, years and years and years ago, was granted a change of venue. We felt the duty to mount it, and it's a trial within itself, and a
topsy-turvy world where we, as the defendants, have to prove that the prejudice against the client is so overwhelming and so pervasive that basically he can't get a fair trial.
FORSYTHE: And that's a very shorthand way of putting it, but that's basically the issue. So what we're doing is calling all these people from all walks of
life, many of them very prominent citizens, who are testifying to the intense hatred and prejudice and ill feeling of our client.
FORSYTHE: So we're out there proving how villainous our own client is. It's just the total reverse. And the state, who is trying to kill him, is in there
just, "Oh, it's not that bad. And people don't know that much about it. And the publicity is not that strong against him, and sure he can get a fair trial."
FORSYTHE: And we called former district judges, we called community leaders, we called businessmen, we called everybody you can think of who testified that
"I hate him. Everybody I know hates him. Everything I've read about him is despicable. Can I be on the jury and give him the death penalty?"
FORSYTHE: I mean it was overwhelming. For days we went on with this testimony, and Will Flowers, the judge, who is a tough, tough judge, at the end of it
said, "Motion's granted. I've never seen anything like this."
FORSYTHE: That was his comment, and he granted it, and we ended up going to Seguin. We were going to go to Bandera, but something happened there and they
couldn't take it, and we ended up going to Seguin, in Guadalupe County, I think, on the condition that the whole show went.
FORSYTHE: That is the judge, and whatnot tried it. Sometimes you'll have a change of venue where the judge in the local county will try it, or you can have
the judge from the case go down there and do it.
FORSYTHE: As I recall, those judges down there probably told Judge Flowers, "Okay, we'll give you our courthouse but you've got to come try it." I don't
know, Judge Flowers may have wanted to try it. He was very serious about this case, as you might imagine.
RAYMOND: Seguin's not that far.
ANDREW FORSYTHE: It's not that far physically, but we were gonna be in a six-week trial, so we had to go down there and find a place to live. The prosecutors
had to find a place to live. We couldn't commute back and forth every day. There wasn't time to do that.
FORSYTHE: We had to find a place to live. We had to set up shop in our—we stayed in a little bed and breakfast, actually a very nice place, but not well
suited to a war room. We were there literally with our boxes in the little bedrooms and stuff.
FORSYTHE: But we moved our life down there for those six weeks, and quite a bit of preparation ahead of time and whatnot. Boy, talk about disruptive; I don't
think Chris or I took in a new client for a couple or three months. It was devastating to the practice, and to our lives, and everything else. Gee, that was something.
RAYMOND: Yeah, I'm sure. I'm meaning in terms of the publicity. Seguin—I don't know if people in Seguin read the
Statesman, but I know people who—
ANDREW FORSYTHE: I have an exhibit. I have an exhibit. (Gets up, brings back picture) I remember this. I had it put away. Gunter gave this to me as a gift,
kind of. After the trial, he had this framed. I've never known what to do with it. It's not something that you hang, even though it's framed.
FORSYTHE: This was the headline story in the
Seguin Gazette Enterprise, the newspaper, the day before the trial started. Now mind you, there had been plenty of publicity when it was made known that we were going to have the trial
FORSYTHE: There was lots of lead up to this; I'm sure everybody in Guadalupe County did know about the case before it started, but just kind of to ice the
cake, just to ice the cake, the day before jury selection began, this headline, "McDuff Murder Trial Begins Thursday," and they went ahead in the story and of course recounted all the alleged
facts and the terrible facts of the case.
FORSYTHE: Just a couple of the excerpts here. This is great: "Twice condemned to die and currently awaiting another trip to death row, Kenneth McDuff goes on
trial Thursday in Seguin," et cetera and et cetera. "Even in Texas, with its lurid history of desperados, serial killers, campus snipers and presidential assassins, McDuff is unique."
FORSYTHE: They go back, just to help us out here and mention the 1966 case, where prosecutors portrayed him as a "remorseless monster, who murdered two
teenage boys and raped and strangled their terrified companion with a broomstick. A Fort Worth jury gave him the electric chair."
FORSYTHE: "In 1993, prosecutors branded him a sadistic sexual predator, who kidnapped, assaulted and killed a young Waco women while on parole. A Houston
jury ordered that he die by lethal injection." That was the one right before our case that he was ultimately executed for.
FORSYTHE: They give the whole history of the death penalty being struck down, of him getting paroled. Now the facts of this case, the state is seeking the
death penalty for the murder of Colleen Reed.
FORSYTHE: They go ahead and quote the accomplice testimony in this case, Hank Worley, who was the state's star witness and the accomplice here about how
Kenneth killed Colleen Reed.
FORSYTHE: Quoted the prosecutors about how devastating the event's been to the community, about because of the intense media coverage, ironically enough,
"the case was moved from Austin to Seguin," on and on and on, about the voir dire process, et cetera, et cetera, and the final sentence, the final paragraph, excuse me, in this whole story,
says— and you know, the other stuff, and this is I guess what I remember most about this article.
FORSYTHE: The other stuff in this is horrible, but it's basically quoting news accounts and other people and that kind of stuff, but the last paragraph
somehow some editorial slant just got in there. They just couldn't help themselves. This isn't from anybody else, this is just the summation paragraph of this story.
FORSYTHE: Says, "A native of Rosebud near Waco, McDuff is a surly, stone-faced, small-town boy with black hair, piercing brown eyes, and a big, slightly
crooked nose. Investigators say he's a constant liar and a cunning con artist who has never admitted raping or killing anyone."
FORSYTHE: So that's how we went into our jury selection to pick a fair and impartial jury in Seguin, and that wasn't easy. That wasn't easy. We lost a whole
lot of people who raised their hands immediately and said they knew all about it and thought he was guilty, and et cetera and et cetera.
FORSYTHE: So that wiped out a big old bunch and from there tried to whittle it down and get some who could serve, and we did.
RAYMOND: And do you have anything to say about that trial, the experience of trying that case and—
ANDREW FORSYTHE: Oh, my God. Gunter was right. I mean it was something that you'd never forget. It was just—it was unique in so many ways.
FORSYTHE: I think I remember Gunter saying that we ought to file a motion for long sleeve shirts because Kenneth had these amazingly muscular, sinewy
forearms, and he was this big, rangy guy, with these really muscular forearms with tattoos on them and stuff,
FORSYTHE: and I remember him coming to court in a short sleeved shirt, and the kind of crimes he's accused of, with strangulation and various things, and
just seeing those arms out there, and watching other people look at his arms, I remember Chris saying, "Yeah, we need to make a note to have long-sleeved shirts."
FORSYTHE: It was unbelievable. Kenneth, of course, at this time we understand had been through more death penalty trials than Chris and I had for his own
cases. So he was always wanting to help us in his defense, and always kind of knew what he wanted to ask witnesses and that kind of thing, and so that was a constant challenge throughout the
FORSYTHE: And my goodness, we had many, many moments. Chris will tell you one of his favorite stories if you interview him. I'll leave this one for him
because he got such a kick out of it, but during the trial, I remember one of the state's witnesses was an expert witness, a gentleman, an older gentleman, very competent and smart, who was
FORSYTHE: I can't remember if he was a physician but he quite an expert in manner of death, and how people can die from various things, that sort of thing. I
don't remember if he was a pathologist or what he was, but he was awfully good.
FORSYTHE: They brought him in from Ohio or somewhere for the trial, and he was testifying how Kenneth could have done this crime consistent with the
evidence, something along those lines, the position of the bodies and all that, and it wasn't a lie. It was my witness to cross, and there weren't a lot of questions to ask.
FORSYTHE: He was one of those witnesses who you just really kind of want to get off the witness stand as quick as possible because he is so good for the
other side, but Kenneth was adamant. He had his line of questioning for this guy.
FORSYTHE: He kept elbowing me, wanted me to ask him this question, just ask him this question, just ask him this question, and I kept shushing him. And
finally he kept it up and I just finally decided, it's his trial, he's on trial for his life or death, and by God, if he wants to ask the question I'm going to ask the question. It's his
FORSYTHE: So I asked the question, Isn't it true that it would be impossible for this really to happen under these circumstances, something, dadadadada,
Doctor? "Oh," the witness said, "I'm so glad you asked me that."
FORSYTHE: And then he went on for about three pages, and explained in brutal detail exactly how it could have happened in just that way, given just the
question I'd asked him. Absolutely gored our ox and afterwards, I remember on that day,
FORSYTHE: my wife had come down to watch just a little bit of the trial, and brought our oldest daughter, who was about a middle school-er, and one of her
best friends, and they got permission to come from school and they saw this as kind of a civics lesson to see Dad in this trial everybody was talking about, and they were there to watch
FORSYTHE: And of course, they just ate our lunch, the witness did on that. And as we took a break then to go to lunch, Chris was looking at them, and they
asked about Dad, and he said, "Yes ladies, and that's why they always say, ‘Never ask a question you don't know the answer to,'" Which was of course the perfect comment.
FORSYTHE: So there was that. Kenneth always knew best, he always wanted to help us in his case. There was that aspect of it. One thing that I remember is
that— one thing that we kind of felt we had going for us a little bit is Chris and I felt that we had some credibility with the jury.
FORSYTHE: We tried to be personable. We tried to be honest. We tried to come across pretty straightforward. Young, straight guys who were there doing their
job as best they could and have some relationship with the jury, some bond.
FORSYTHE: And of course the jury selection process is—you get rid of the worst and the state gets to get rid of the best for us, but you end up with people
who are more in the middle. And we were doing our best to have some bond with them because we knew that at some point we'd be asking to, for whatever reasons we could come up with, not to
FORSYTHE: So we had to have some credibility. And it's funny, through the first part of the trial, the guilt and innocence part, there were some challenges
on that. It was not an open-and-shut case. The state had plenty of evidence, but they obviously didn't have a confession.
FORSYTHE: Kenneth wasn't the type of person that would certainly do a confession. He'd been around the block many, many, many times. They had a
circumstantial case. They did an excellent job putting together what they had, but there were things to argue about.
FORSYTHE: Well, again, you never know what the equation is in a jury's mind. You never know how much they really know. You never know how much, despite what
they said about not knowing much about the case, they knew about Kenneth McDuff, and they were looking at Kenneth, and Kenneth was not appealing to look at. He scared people.
FORSYTHE: But for whatever reason, they found him guilty. The state did a wonderful job with their case—good prosecutors. But up until that time, even to the
guilty verdict, the guilt and innocent, the jurors would still look at Chris and me. They would make eye contact.
FORSYTHE: They might smile briefly. They looked at us. They looked at us as human beings, and we felt we had a little bit of that contact with them. They
were still listening to us, what we had to say, and then things shifted. Of course you go into the punishment phase, and now all the bad stuff comes in; the gates are opened.
FORSYTHE: And of course the state's most dramatic evidence here was the murders Kenneth had committed, had been convicted of committing, and getting the
electric chair for committing, which was commuted, was back in Fort Worth twenty-five, thirty years ago.
FORSYTHE: And I can't remember, I don't believe I remember the name of the guy. Do you? He had an accomplice then, too. There was an accomplice in the
Colleen Reed case that we were trying, Hank Worley, and there was an accomplice in the case back then. They were similar-type fellows. They weren't very smart. They were followers.
FORSYTHE: They were patsies, this kind of deal, which was a chilling pattern for a jury to see. But there was this fellow, who didn't have much in the way of
mental capacity to begin with, by all accounts, many years ago. At his best most people could tell having gone through the earlier experience, and been there with Kenneth during the first
murders, whatever he had was warped hopelessly from that point on.
FORSYTHE: He was kind of like James Davis. He was kind of like childlike almost, but they gathered this fellow up and brought him down. They fed him
hamburgers, basically like a child, and had him come up and tell the story of the murder of the three teenagers in Fort Worth in this pitiful, again, childlike way, where it was such dramatic
testimony because he had, like James, no guile.
FORSYTHE: He wasn't getting anything out of this except some hamburgers on a road trip. His sentence, whatever he got on this was long ago discharged. He was
living some pitiful life where nothing had ever happened with him. I don't remember if he was living with his mother, watched TV all day or something— just kind of this pitiful, pitiful
FORSYTHE: And he got up and he told this story, and it was again like this eight-year-old telling it or seven-year-old telling it. It was so hard to knock
any holes in. He told this story and you could see in his eyes it was only bad and it was testimony that was so tough. I don't remember it perfectly.
FORSYTHE: I remember it was something about kids in a car and teenagers and Kenneth had gotten them out and raped the girl, I think. He had a pistol, put the
boys in the trunk, maybe the girl too, shot all of them in front of each other, begging for their life. Just this warped, as bad as you can imagine, and this guy recounts all this.
FORSYTHE: This is what this guy did thirty years ago. And after that the jury never looked at us. They wouldn't even look in our face. That was tough. We had
felt that there had been one thing that they would listen to us, they would at least look at us. They would hear our arguments, and after that they just wouldn't look at the defense table at
FORSYTHE: There was a coldness that swept over the jury's face at that point, kind of a glazed over look, and more stuff, more murders and mayhem and whatnot
that was put into evidence, and then we came to punishment arguments, and I will tell you, we had to try to be pretty creative.
FORSYTHE: What do you tell this jury that won't look at us now as to why they don't execute this person, to these people who had sworn that under the right
circumstances they could give the death penalty? How do you convince them that Kenneth wasn't the right circumstances? And it was hard. We argued what we could argue. We did our best.
FORSYTHE: Some things—he's already been given the death penalty, and that came out. I think maybe we brought it out, even. Things were topsy-turvy. He'd
already been given the death penalty, he's going to be executed for these other crimes, it's just gonna be that thousands and thousands and thousands and thousands of dollars in taxpayer money
going to appeals on this case that is legally meaningless.
FORSYTHE: I mean, we were left to make all these strange, philosophical arguments, I don't even remember, but just whatever we could come up with to try to
save this guy's life. Kenneth's mother was not in attendance. We had invited her to come and she basically had said, "I've been to Kenneth's other trials. I don't think I need to come to any
FORSYTHE: So we had a jury sitting up there and looking and seeing that the guy's mother's not here. That was pretty tough, and what I remember—what Chris
and I still remember, one thing we remember, the jury went out on punishment, and we were not surprised that they returned a death penalty, a verdict of the death penalty, and it had been of
course a long, exhausting process, and I remember that courtroom in Seguin.
FORSYTHE: And I remember it was an old, historic courthouse; the high ceilings, the furniture, the lamps. It really has this Inherit the Wind feel to it, and
the people in Seguin were lovely to us, but anyway, I remember we went back into the jury room, as is customary, and the judge talked to them a little bit,
FORSYTHE: and the prosecutors talked to them, and under Texas law you can speak to the jurors after the verdict is in, and Chris and I went back there and
there was one lady on the jury that we'd always felt like was probably our best juror. She was an older lady, and she was grandmotherly.
FORSYTHE: She had been kind when we'd talked with her at voir dire, and she'd been sweet. She seemed to have a lot of compassion. I think she was a
grandmother as I recall; she certainly looked like it.
FORSYTHE: I mean she was little chubby cheeked, and gray hair, and just as kind and sweet, and you just kind of got the idea that she baked muffins for her
grandchildren and she looked approvingly on us as nice young boys, probably not after the testimony I mentioned, but she was probably our best juror.
FORSYTHE: We were so happy to get her on the jury that the state didn't strike her. We could not imagine this lady voting for the death penalty on anybody,
and we really thought that if we had any cards to play it was this lady. And I remember when we went back there to the jury room after it was all over.
FORSYTHE: The trial was over and the death penalty had been voted in and Kenneth had been led away and everything else, and this lady was one of the jurors
that remained to speak, and she came up to us, and we were still in the presence I think of the judge and
FORSYTHE: the prosecutors were all kind of there as a group, and I remember her coming up to Chris and me and saying, "You boys did a wonderful job. You
worked so hard, and you're good lawyers, and you tried so hard for your client, and did such a wonderful job.
FORSYTHE: I want you to know that. But now, now that the case is over, and the death penalty is voted, is there any way we can all join together in this,
including you all, to try to get Kenneth executed as quickly as possible?" And she said it just the sweetest, most sincere way.
FORSYTHE: She really could kind of—she really envisioned sort of this little committee coming together, including the former defense lawyers, to get that
quick execution date. That to us almost epitomized what we were up against in that case. It was mind-boggling, but there you have it.
RAYMOND: Well thank you. This is—I've certainly learned a lot. Thank you.
ANDREW FORSYTHE: Well, good. My memory's bad.
RAYMOND: Is there anything you want to say—we're hoping to put this in a public archive as you know, anything and it will be up to you after you approve of
what you see and make any corrections or whatever you want to do.
RAYMOND: Anything you would want people to know, who might be listening to this or reading this transcript, that they would take away from your
ANDREW FORSYTHE: Well, I'm an inveterate note-taker and I did write down a couple of things and maybe there's some brilliant thought I wrote down although I
don't remember it, and it's nothing I've written down. I'll tell you, I've always been conflicted about the death penalty.
FORSYTHE: I think it's probably pretty standard for most criminal defense lawyers to just doctrinaire be against it: I've always been against it. I am
against it. I'll always be against it. Through my career and my life I have always been conflicted. I can see a couple of different sides to it, to tell you the truth.
FORSYTHE: I was never automatically against it, all the time from the beginning in every case, from every iteration of the law, et cetera, et cetera.
FORSYTHE: I'm probably more against it now than I've ever been, though as I've evolved, and I still don't know where I stand and frankly, I've never felt the
need and this may just be intellectual laziness just to figure out exactly where I am, but that's never been my role.
FORSYTHE: I either do those cases or I don't. If I'm gonna do that case, I'm gonna defend that guy a hundred and ten percent. My philosophy on that doesn't
matter. I defend people who are facing prison and I think there ought to be prisons.
FORSYTHE: So I've never had a problem with it philosophically being a lawyer, but as a citizen that maybe knows a little more about this than the average
person because I've done ‘em, just am I for the death penalty or not for the death penalty, I've kind of struggled with that.
FORSYTHE: But then again, I've never felt forced to come up with an absolute position. I guess I'll tell you what always, if anything pushed me or what made
me think there was a reason for it, and it's as simple as this—
FORSYTHE: and this is probably a product of my having my legal career in Travis County and the selectivity in picking death penalty cases to really seek the
death penalty in this county, and how careful they've been to make them only the most horrible cases and, frankly, usually only the most deserving defendants, and I think James was a special
case. James at least.
FORSYTHE: And that is that the fact, the strongest argument for the death penalty in my personal experience, in the cases that I've seen around here have
been the facts of those cases. It's not an intellectual deal where you say, "Well, we need to execute this guy so he doesn't get out and do it again," or "We need to do this as deterrence to
keep other people from doing it."
FORSYTHE: None of that bull. It's the facts of the case. When you go through it and hear about these cases and hear the brutality, the remorselessness, the
sadistic nature of many of these crimes, the wanton, senseless brutality of killing people when it would have been easier to let them go, just the mercilessness of it, and hearing some of that
FORSYTHE: And I've heard it in cases other then mine, sitting in court and reading the reports and looking at all of it. I was often just left with the
feeling of this person just has to be put down. It is like a rabid dog. It's like an animal out of control that is like a killing machine.
FORSYTHE: It's not a question of if I'm mad at him, or vengeance; it's just they have to be taken out. They have to be removed. It is so awful what they did
that I no longer see them as human. I can't have human emotions about them, I just see them as some danger that has to be taken out.
FORSYTHE: Probably the best illustration of that was an argument that I heard on a couple of occasions given by Phil Nelson, who for many, many years was the
first assistant district attorney here in Travis County. He just recently died; a wonderful man, a wonderful, thoughtful man.
FORSYTHE: A brilliant, brilliant, brilliant lawyer, who I could tell you a lot of stories about. Had been a defense lawyer at one time also for Frank Maloney
at one time, but a longtime prosecutor. Spent most of his career as a prosecutor, and most of it as first assistant for Ronnie Earle, and tried many of the big death penalty cases, including
Leroy Barrow, I believe.
FORSYTHE: And I remember very vividly Charles Rector, which was an awful case from years ago, and I remember hearing Phil give the argument in I think both
of those cases.
FORSYTHE: I remember it in Rector; he may have given it first in Barrow, but I remember the argument and you have to understand that it's so much more
compelling to hear a death penalty argument, an argument asking for the death penalty from someone like Phil Nelson than from some rabid prosecutor, from some dyed-in-the-wool zealous
prosecutor, some hang-them-high type of guy.
FORSYTHE: Phil was not that way. He was a very reflective, thoughtful, kind man. Just as decent a guy as you would ever know. So when Phil got up—and that
was very apparent to any juror, any judge, anybody who was in the same room with him for ten minutes. You knew who you had here, and of course that made him so much more effective ‘cause he had
that credibility with the jury.
FORSYTHE: And frankly, one of the prosecutors in our case, and I'm digressing a little bit, in Kenneth McDuff's case, was that way, Buddy Myer, who is still
with the D.A.'s office, and David was also a prosecutor on there, but Buddy was one of these guys who is so decent, that when he stands up and asks for the death penalty, you just go, "My
goodness, if Buddy Myer thinks this guy ought to die, maybe he should die."
FORSYTHE: Phil was that way, and he got up and made the death penalty argument in those cases that I saw, and the way he put it, and mind you, I may digress
a bit, but mind you, in those days, there was no life without parole. You either got death or you got a life sentence, but life wasn't life.
FORSYTHE: You could get parole, and frankly, most people eventually did, and there were all kinds of rules about not telling that to the jury, but most
people knew that, and so there was this idea that if you don't kill him, someday he probably will be walking the streets.
FORSYTHE: And the way Phil would put it was, "Ladies and Gentlemen of the jury, in Mr. Rector's case, you're going to render a decision, and out of your
decision will issue a death warrant. That is unavoidable. Whatever you decide, from your decision today, a death warrant will issue.
FORSYTHE: The difference is, it will either have the name Charles Rector on it, or it will be a blank check because he will kill again. You know that. We've
proven this. You cannot be blind to that. You've seen what happened in this case. You've seen his other crimes. You know. You know that this man will kill again, so a death warrant will
FORSYTHE: Should it go to him, or should it go to some unknown and innocent person out there who doesn't even know this trial is going on today? Whose life
will you take forever?" And I'm telling you, I thought it was extremely effective.
FORSYTHE: It was effective in those cases, they voted for death, and that was sort of the legal argument of I'm talking about. Some of these facts in these
situations, I'm telling you, and I've only touched on it here, if you've looked at it as I know you have, are so brutal that they go beyond any philosophical argument for the death penalty that
I've ever heard.
FORSYTHE: And I just—my gut says after hearing them that person should die. They have to be taken away from us. They cannot live in our society. They have
forfeited that right. On the other side, and I guess what's evolved with me is our death penalty scheme in Texas is such a mess. It is so capricious.
FORSYTHE: You know, people say, "Well, the problem with the death penalty is that an innocent person could get convicted," and obviously that is a huge
problem, and if it happens once of course that's too many times.
FORSYTHE: Of course you never ever want that to happen and of course the chances are that at some point it will or it has or it has many times or will many
times, or however you want to see that, and that is a huge argument, but I'm a pragmatist.
FORSYTHE: Pragmatically and practically, what you see on these cases is, as I said, almost always overwhelming evidence of guilt, and in the vast majority of
these cases, as best as I can tell, the evidence of guilt is overwhelming, so they're not many cases that I've had personal involvement with or personal knowledge of where I'm thinking, "Gee,
they may kill a guy who's innocent."
FORSYTHE: What gets me is the capriciousness of it. Who dies and who lives? And the people who die for crimes that aren't as bad as the guy who got thirty
years on a plea bargain for testifying; the enormous disparity between how the counties handle it.
FORSYTHE: There are counties in this state that have probably never sought the death penalty, and frankly probably don't because they don't have the money.
It costs so much money. So we're deciding if people live or die based on county budgets.
FORSYTHE: Houston executes people and tries death penalty cases like D.W.I.s. All the time. In Travis County, we try them now and then. In some counties,
never. Why should somebody live or die based on what county they commit their crime in?
FORSYTHE: That's just so crazy. It's so illogical how we do it here. It's so capricious who gets the death penalty and who doesn't, and I must admit it
does—it is increasingly repulsive to me in a way that the idea of institutionally killing someone,
FORSYTHE: of having all the majesty of the state, and all the authority of the state, and all of the power of the state, harnessed towards this very
premeditated, this very cold execution, killing, murder; whatever you want to call it, is just somehow I guess over the years, increasingly it has just— it's something that I really imagine a
hundred years from now people will say,
FORSYTHE: "I can't believe we did that. I can't believe we had all our finest lawyers and judges and jurors, and these men and women of great ability and all
the money we spent and jurors and the great jury system we have, all harnessed toward the end of killing somebody." It just somehow seems to fly in the face of what all that system stands
FORSYTHE: So I guess I'm still conflicted but I guess I'm increasingly disgusted with the system, and maybe now we at least have life without parole, or
maybe just get rid of it is the way to go. I don't know if we're going to decide that today on your nickel.
RAYMOND: And that's not our policy anyways, but I've learned so much from you. We really appreciate you taking all this time. It's very generous of you.
ANDREW FORSYTHE: Oh, it's been my pleasure.
RAYMOND: I've learned a lot, and thank you very much.
ANDREW FORSYTHE: You're welcome. Thank you.
RAYMOND: Kim, did you have anything you want to ask?
KIMBERLY BACON: I don't think so. Thank you very much.
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, Mr. 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, Mr. 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, Mr. 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. Mr. 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. Mr. 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 Mr. Forsythe's office in Austin, Travis County, Texas on May 21, 2008.
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Andrew ForsytheRole: Narrator
Texas After Violence ProjectRole: Collaborator
Virginia Marie RaymondRole: Interviewer
Kimberly Ambrosini-BaconRole: Videographer
Jorge Antonio RenaudRole: Transcriber
Kimberly Ambrosini-BaconRole: Proofreader
Texas After Violence Project
University of Texas Libraries
North America--United States--Texas
North America--United States--Texas--Austin
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