Request by Mr. Weaver to assist Herman and Thurman Davis
Representation of Polk sisters
Capital murder trial of Herman and Thurman Davis
"I can't participate in a lynching"
Dealing with racism
Looking for honest people
Mr. Baldry's mistress on the jury panel
Catholics; difficulty of keeping Catholics on panel
The boot print, the rain, and an honest Ranger
Examination of Deputy Davis
Jury argument and deliberation
Video 4 of "Interview with Mr. Larry Daves"
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RAYMOND: Okay, Larry.
LARRY DAVES: I ended up doing a lot of criminal law the first couple of years. I think a lot of people who go into private practice, if they go into a
neighborhood, a community, it's going to happen.
DAVES: I can't even imagine at this point how many different kinds of cases I took on, but I probably did fifteen or twenty different kinds of criminal
defense cases, and the only case we ever lost was— generally all the cases I got would generally be dismissed,
DAVES: absolutely just by filing, by appearing as the attorney, meeting with the client, doing some investigation, talking with the district attorney and
they'd dismiss it. All but one case. I tried three or four of these things. Had another murder case where I was not as lucky.
DAVES: The prosecutor messed up. There had been a change in the law and when they indicted this client of mine for murder with malice.
DAVES: But the killing, and it was a horrible killing, there's no question about it, had occurred at some period of time when the legislature had changed
away from the murder with malice to a deliberate killing thing.
DAVES: And they indicted him under the new law rather than the old law, even though the new law had not gone into effect. And somehow I figured it out. And
so, it was a horrible killing.
DAVES: This man was accused of killing his wife, of murdering her and raping her and leaving her in a field, and things like that. But they made a mistake.
They indicted him under the— with the wrong form. And so went ahead and went through the entire trial.
DAVES: It was nerve wracking, believe me— nerve wracking. Because the only way you can really win on that thing is you have to go through the whole case, and
then, once all the evidence is in— you only file your motion once all the evidence is in because you're asking for a directed verdict.
DAVES: And so, once I made my motion, they figured out they had messed up the whole thing but it was too late.
DAVES: It was over with, and so the only thing that went to a jury was whether there was a killing without malice instead of a killing with malice, limited
five years. The jury found of course, yes, there was, there was no question there was.
DAVES: The big issues in this was the confession. They had really been brutal about getting the confession. Took them eighteen hours to get a confession out
of this guy.
DAVES: And so I challenged the confession, whether it was an involuntary confession, and it was a good issue. I lost the issue with the Court of Criminal
DAVES: But he ended up being convicted for five years and he was lucky to be honest with you, because he clearly was— Had they done this properly, he would
have spent his life or a very, very long period of time in prison because it was a very horrible, brutal killing.
DAVES: I did— at any rate, I did a number of different criminal cases, so many of them were just so petty—bad checks, not paying for rental equipment— or a
lot of them, although I didn't do very many.
DAVES: One or two drug cases, where it was just a matter of file a motion to dismiss or throw out the evidence. And every single one we got thrown out.
DAVES: I had lots of good luck on criminal cases but I hated it, the business, because I couldn't figure out how to charge people. I didn't like to charge
people. I felt like if they were innocent, they shouldn't have to pay.
DAVE: And so it was killing me, ‘cause I was doing case after case after case, really, and winning the case and getting the cases dismissed, and getting
almost nothing for it.
DAVES: I couldn't keep going and that's why I switched over to doing employment discrimination because I could make the employer pay. I just couldn't figure
out the economics of the criminal defense work, although I loved it.
DAVES: I mean, I loved seeing cases that we won; I loved being able to go to juries and argue the issues. I really loved it. I felt like I was back in
Criminal Law class with Professor Sharlot, being finally able to talk about where these principles came from.
DAVES: Why they meant so much, why they're so powerful in our system. I'm trying to think of any of the other— all the other criminal cases were really
pretty routine things.
DAVES: In the summer of ‘76, I'd been practicing for three or four—for three years. It was either ‘75 or ‘76, I can't remember which, that Mr. Weaver— and
he's the one who got me to do most of these cases that I ended up doing, almost all of which were there in Nacogdoches County.
DAVES: Some of them were in Angelina County, some were in Rusk County, but most were there in Nacogdoches County.
DAVES: And Mr. Weaver was well known in that area. He was local NAACP chair, and he called me, and I just can't remember if it was ‘75 or ‘76, on that, to
see if I would help the Herman and Thurman Davis kids, young fellows.
DAVES: They were from San Augustine County, and had been in jail at that point for maybe six, seven, maybe eight months.
DAVES: Weaver said they had been moving these young fellows from jail to jail to jail, trying to force them to confess to something they were not guilty of,
and that this
DAVES: mother really needed me to get over there, and if nothing else, just get them out of jail. That they had somebody who would represent them on the— and
they had brought capital cases against them.
DAVES: They had someone who would represent them on the capital defense, Craig Washington, I believe is who it was, and that all they needed me to do was to
go over there and try to get them out of jail.
DAVES: So I went to San Augustine, met with the mother, did some investigation, filed the— took writ of habeas corpus, took two writ hearings to get that
they had them on like a one hundred thousand dollar bond. After two hearings, I was able to get the bond down to ten thousand dollars.
DAVIS: Once we got the bond down to ten thousand dollars, there were two funeral directors there, Black funeral directors in San Augustine County, who were
able to make that bond and got them out.
DAVIS: And that— those hearings probably took a month or two. I can't remember at this point just how long it took to get that done.
DAVIS: Got them out and hadn't got these fellows out more than a week or two before I got a call from the District Attorney saying I needed to show up the
next Monday, that they were going to do a— that the case against the Polk daughters— that they were going to take the Polk daughters to trial.
DAVES: The Polk daughters were the three young Black girls who I had filed a federal law suit for against the sheriff of San Augustine County, and against a
doctor in San Augustine County
DAVES: because these three young girls had come back into town after going off to college somewhere, had come back into town and gotten into an altercation
at the doctor's office ‘cause they had refused to sit in the segregated waiting area.
DAVES: St. Augustine was still extremely segregated. And this doctor's office, like all the other offices out there still followed the old way and Blacks sat
in one spot, behind some curtains, and whites sat in the other, open area.
DAVES: These three young girls, they'd been off to college, they knew it was wrong, and so they had protested that they had a right to sit in the regular
waiting area. And the doctor's nurse had gotten mad at them, yelled at them, told them to get out and they wouldn't move.
DAVES: And so the doctor came in, grabbed one of the young ladies and struck her on the jaw, and in the process broke his finger, apparently. And so these
young girls ran, left there and went directly to the sheriff's office to file charges against the doctor for hitting them.
DAVES: And as soon as they got there, instead of accepting charges, the sheriff arrested them ‘cause the doctor had just— had called him. He knew where they
DAVES: And so the doctor had called and he pressed charges against them for aggravated assault ‘cause his finger had been broken. And so he locked all three
of these young women up in that jail up there. And I was just outraged about it.
DAVES: So I filed false arrest against the doctor, against the sheriff and all that, and those were the Polk daughters.
DAVES: The district attorney calls me up on this Friday, literally on a Friday, and says, "You need to be here on Monday, because the Polk daughters' case is
going to trial."
DAVES: And I wasn't really happy about that; but at the same time I hadn't signed on for a criminal case but at the same time it was outrageous— it was
DAVES: They were just retaliating against them, I thought, because I had filed this federal lawsuit against the sheriff and the county and the doctor. So at
any rate I show up in San Augustine County that Monday morning.
DAVES: And I was sort of surprised as I drove into town because there were so many people at the courthouse. I mean, literally, the courthouse— there were
DAVES: St. Augustine is an old-fashioned East Texas county and you have a county square, this three-story courthouse there, and the whole town was packed.
The whole courthouse— I mean, literally, there must have been, literally, a hundred jurors there.
DAVES: And I looked around and sure enough, there were the Polk daughters and their parents and— but I also saw Herman and Thurman Davis. I thought, Wow.
What is going on here?
DAVES: And I went up and there were about five or six other attorneys there and all these other jurors, and I was really puzzled because, again, I had been
told that they were going do the— to start the Polk case.
DAVES: And I had brought with me some form books that I had just gotten at a criminal skills conference I'd gone to two or three weeks before that.
DAVES: But the very first thing that happened once court was called— when the judge called the—started calling the docket, instead of calling the Polk case—
he called the
State of Texas v. Herman and Thurman Davis.
DAVES: You know I about fell over. I thought, God Almighty, what is going on here?
DAVES: These guys—I'd just gotten them out of jail probably two weeks earlier, and no notice whatsoever that they were going to be doing the case against
them, and this was a capital case, remember?
DAVES: And I had only been hired really to do— what I'd thought— was do the writ of habeas corpus to get them out of jail. But at any rate, the judge called
the case and so I just immediately went to my formbook and started filling out forms.
DAVES: Most were continuance, legislative continuance, because Craig Washington is in the legislature and is entitled, once he's in the legislature, to a
legislative continuance. I explained that I'm not the attorney.
He'sthe attorney on this thing.
DAVES: I filed for a separate trial for both, so Herman and Thurman would have a separate trial, because one of the brothers had a prior felony and the other
one didn't. And you can't try as co-defendants the person who doesn't have a felony; it— they get an unfair trial.
DAVES: Because if you put on the person with a felony record, they have a right to bring that up, and impeach that person, but you can't under Texas law.
There's no question that it was being reversible error to try the two of them together.
DAVES: So at any rate I filed a motion for severance. It should have been granted. I filed a motion for discovery. I asked for all the statements that had
been taken. I asked for all the tangible evidence they had.
DAVES: I asked for an appointment of a psychiatrist for the psychiatric examination. I even filed a grand jury challenge.
DAVES: I looked out there and there were two hundred white people and there were two or three Black people in the whole group; and I knew this county was
forty per cent Black.
DAVES: So I said there's discrimination in terms of the venue, of the— for the indictment, for the grand jury challenge. There's something wrong. I filed all
the motions I could do as quickly as I could. Scribbled them all—just wrote in the names ‘cause I had the forms there.
DAVES: I just had to fill in the names and form motions. Signed them, made a copy of it and filed them. And instead of moving forward with any of the other
cases, the judge just started going one by one through the motions.
DAVES: He took us all into chambers, though, because we were all out before all these jurors. At first, took us into chambers. There for an hour, he went
through motion after motion. Turned down every single motion.
DAVES: And again, we were there for— must have been at least an hour in chambers. It was a real— I was pretty mystified to be honest with you.
DAVES: Everything— there was nothing at all going on that— I had been in lots of courts at that point, even though I'd only been practicing three or four
years. I had been in court, I would say, hundreds of times.
DAVES: I'd already, at that point, been before the Texas Supreme Court on a personal injury case. And I had been in practically every courthouse in East
Texas, in federal courts and in state courts. I was familiar with the court process.
DAVES: I was not your normal law student, or young lawyer who had been briefing for some senior partner or whatever and never seen the courthouse. I had been
in the courthouse. So there was something seriously wrong.
DAVES: Instead of the district attorney prosecuting the case they had a guy who had formerly been like the attorney general of the state of Texas and he was
a major lawyer in that town.
RAYMOND: What was his name?
LARRY DAVES: I can't remember his name, but he had— his family didn't trust the district attorney, and so they had personally hired him.
DAVES: Back then, the Texas statutes authorized a private attorney on a criminal justice case— on a criminal case you could use a private attorney to do it.
And so they had hired this fella. They really wanted him for his power, his influence.
DAVES: They had been in San Augustine County; he had been there for years. He was the former attorney general.
DAVES: He controlled the school board, he controlled the county commissioners, he controlled the city council, he was— they really wanted him because he was
the most powerful person in the county is what I think,
DAVES: but I really didn't know that at the time, but I know now.
DAVES: But I didn't know any of it then, but I knew it was weird that you'd have somebody, some private attorney, sitting in there along— sitting next to the
district attorney arguing this case and moving forward on this case. It was just very unusual.
DAVES: At any rate, by the end of the hour, the judge had turned down every single one of the motions including motions that I knew were reversible, that
absolutely were reversible. These are not things you can do. These are things all lawyers know you can't do.
DAVES: That all judges know you can't do. It's not— this was established law.
DAVES: At this conference that I'd gone to just a few weeks earlier, we had had a program by some older lawyer there in the state and he was talking about
your ethical responsibilities on capital cases.
DAVES: And the reason for the seminar was that the State of Texas had just re-instituted capital cases.
DAVES: For three years or so the Supreme Court had struck down the Texas statute as being unconstitutional, and so they had moved to a bifurcated system that
they felt would satisfy the Supreme Court ruling.
DAVES: And so this seminar was really set up to try the— so the criminal defense bar to start getting ready for what we thought would probably be a large
number of capital cases coming down again because for three years they hadn't been able to do it.
DAVES: And one of those old, older lawyers— I have no idea or recollection who he was, but I know he was talking about ethics, and he was saying that your
responsibility is not to the court, it is to the individual.
DAVES: Your primary ethical responsibility is to defend the person that you're representing with all— to do everything you possibly can to represent that
person, ethically, but you're the advocate for him, not for the court.
DAVES: It was really—what I got out of it is that your first loyalty has to be to your client. And he also said that there will or may come a time in your
practice, and you're going to get into a situation where it is clearly, where law and reason are not applicable.
DAVES: You may come into a situation— ‘cause he says that these are the kinds of cases, and sometimes it happens— where the ordinary life, where the ordinary
court processes are not going to be followed. You may— there may come a time when that's going on.
DAVES: And if you get into a situation like that, remember:
They can't do it without you.That's what I remember him saying. So at any rate, thankfully, I had just been to this thing.
DAVES: When we went back into the courtroom and in front of all these new jurors out there, and really, there must have been two hundred of these folks out
DAVES: Again, instead of calling any other case, Judge Bacon says — announces — turns to the state and says, "Are you ready?" Calls
State v. Herman and Thurman Davis, and says, "Are you ready?"
DAVES: And so the prosecutor and his private attorney stand up and say, "We're ready, your Honor. We're ready to proceed."
DAVES: And at that point, of course I was sitting there with the other — with my clients, and I didn't want to say anything too loud, so I just slowly got up
and I walked right up to the judge.
DAVES: I didn't stand there and yell from the table, I just walked up real — as calmly as I could to the judge because, literally, I was scared to
DAVES: And I said— I walked up and I said, "Your Honor, with all deference to the court, I can't participate in a lynching." I said, "The code of ethics
prohibits me from participating in a lynching."
DAVES: And so the old judge, he says, "Mr. Davies"— They always call me Davies I think if they don't like me; my name is Daves. "Mr. Davies, do you know what
that means?" Well, I really didn't know what it meant, but I think I do.
DAVES: And so he just went like that (crooks his finger) to the sheriff, and Sheriff Hoyt came over and took me by the arm and started just walking me out
and I want to tell you this —
DAVES: And as we were walking out by these other lawyers, all of a sudden one of the lawyers who was there with his client was an old East Texas lawyer from
Angelina County, I think his name was Spring,
DAVES: and I'd seen him in court before representing this Black couple there in Municipal Court, in Nacogdoches, and nobody ever represented anybody in
Municipal Court in Nacogdoches just because,
DAVES: at that time, you could automatically appeal whatever happened in Municipal Court up to County Court. County judge was a non-lawyer and afraid to try
cases, and so it was automatically stalled out. So eventually, no one would do it.
DAVES: But this man showed up and went ahead and tried this case for this Black couple, a speeding case or something like that.
DAVES: And I always remember it, and I thought, he knows that there is usually no real thing about this, but it's important to his clients, apparently, to
have a trial, and so he went ahead and went through a trial for him.
DAVES: But at any rate, as the sheriff is walking me out, this Spring— he handed me a one-hundred-dollar bill because, I guess, he was afraid. He thought
that I would need some money in that jail, that they might hurt me, or whatever, who knows? I might need to pay off somebody.
DAVES: But I've always remembered, he gave me that one-hundred-dollar bill.
DAVES: But the judge— but the sheriff, instead of putting me in a cell, for some reason, the sheriff wasn't a bad guy to be honest with you.
DAVES: I'd sued him, but he's not a bad guy and he took me into his office, put me in his desk, and he went back in and never put me in a cell but left me
there all day long.
DAVES: But I had access to a telephone and I ended up calling the only person I knew to call if you had a problem, and that was Dave Richards and his partner
Sam Houston Clinton, who was partners with Dave at the time.
DAVES: And Dave wasn't there, but Sam Houston was, and I said, "I'm in trouble, I'm in bad trouble. I'm here in San Augustine County and they've got me
locked up. And I may need y'all to come out and get me out. I may need a habeas corpus to get me out of jail."
DAVES: And Sam Houston said, "Well Larry, I'll tell you what, if you're still there tomorrow, we'll come down and get you out of jail."
DAVES: But I always— but I'd appreciated it at least if they'd kept me there overnight, I might of gotten some help the next day but I was wanting some help
right then. ‘Cause, you're really not supposed to lock a lawyer up in the middle of the darn trial.
DAVES: You make him have a case like that. You're supposed to, even if somebody is in contempt — the way you're supposed to do it is have a separate trial
later. But they dispensed with that— summary judgment in San Augustine County at that time.
DAVES: Well at any rate, at about five or six o'clock in the afternoon, and I'd been there literally all day long, the judge sent a young lawyer into the
office there and said, "Well, Judge Bacon, he realizes that he messed up with some of those rulings,
DAVES: "so he's gonna go ahead and grant your motion for severance, and he's gonna go ahead and grant your motion for statements, let you have a copy of
those statements, but he's not gonna grant the continuance.
DAVES: "You're on the papers because you did the writ of habeas corpus, and if they want Craig Washington he's gonna have to come on his own but you can't
file a motion for Craig Washington.
DAVES: "And I'm not gonna give you the psychiatric examination but I am gonna turn you loose and you come back here tomorrow and start voir dire." Well, I
was so happy to get out I didn't say a word.
DAVES: I went ahead and I got out and I got in my car and I drove back from San Augustine to Tyler, Texas.
DAVES: And I had just started with two new law clerks from Boston, from Northeastern University, Liz Rogers and something— I can't think of the guy's name
DAVES: But Liz Rogers and— it may come to me but at any rate— I went back to Tyler and I got a hold of Liz and her boyfriend, and that's all I can say right
now because I can't think of his name, and I told them, "Look, we've got some real problems.
DAVES: "We've got to go down to San Augustine County and they're doing the Herman and Thurman Davis case down there."
DAVES: And I picked up two books. I picked up Judge Harrisman's on reversible errors book and I picked up Ann Ginger's book on minimizing racism in jury
trials. Judge Harrisman's book was a really, really important book.
DAVES: What that was was a listing of all capital cases, I think— but I may not have been all capital cases but criminal cases that had resulted in some
reversible error through the entire process.
DAVES: Whether you were talking about voir dire, or jury selection, or opening statement, presentation of evidence, no matter. But the entire process— he had
put together a book that listed all the cases and what their holding was. And it was very, very helpful.
DAVES: It was extremely helpful. And how in the world I had it or why I had it, I haven't the slightest idea but I had it, and by golly, I'm glad I took it
DAVES: And then and Ginger's book is a book that had been developed out of some serious political cases out in California and was not horribly
DAVES: but— however— what it did was she had included some questionnaires that they had used in some of those Black Panther cases.
DAVES: And I modified the questionnaires to fit what more of what was going on in East Texas as opposed to Los Angeles or Berkeley or whatever.
DAVES: And so that was extremely helpful because— and I used that during voir dire, and I used a system that Liz and I and Bruce had kind of come up with,
because we thought it was important to try to see— we knew that they didn't have a very good evidence case.
DAVES: We knew that. And so we felt like it was really important to see if we couldn't come up with some questions that would help us arrive at people who
would be as honest as possible about the legal principles that would be involved
DAVES: and try to minimize as much as we could the role of race in the jurors making credibility decisions or in listening to the evidence and particularly
listening to the legal principles.
DAVES: Because this was a case that clearly should be resolved by legal principles as opposed to— because they did not have a good evidentiary case against
either of these men.
DAVES: And the facts were that Herman and Thurman had both been arrested within an hour of the killing of this white shopkeeper in town. He had been shot
just close to 10:00 pm one Thursday night.
DAVES: He owned a little store there in San Augustine. He also owned some other businesses there, but he was at his store and he had— within an hour of the
killing, the law enforcement folks had— and he had said as he was dying, "Go get the Davis boy."
DAVES: And so the law enforcement people took that to mean to go get one of the Davis boys— one of the Davis brothers. And so they had gone over to the house
where— I can't remember now if it was Herman or Thurman, which one it was but it was one of them.
DAVES: And within an hour of the killing, they were over there, either at Herman or Thurman's house, and pulled him out of bed. He was already in bed and
made him put on his boots, put his clothes back on and took him.
DAVES: And then also, because they didn't know which one it was, picked up the other brother. And they ended up taking both of them and putting both of them
DAVES: And what these guys had told me— what they had a writ for— they put them on bread and water, they did everything they could to coerce a confession out
DAVES: When they couldn't get one in San Augustine County, they sent them to another county jail in Newton County or wherever. These are old Ku Klux Klan
counties. These were very, very, very dangerous counties for African Americans at that time.
DAVES: But they sent them to these various jails— fellows never would never confess. They didn't do it but they were courageous enough that they were not
about to say they did something just to get out of jail.
DAVES: One of them already had a felony, which was probably helpful because he knew a little about the criminal justice system. At any rate, they kept them
together, which was a mistake from the point of view of the law enforcement people because they had solidarity.
DAVES: So they had worked on these guys for six to eight months and— I can't remember, it's my problem, too many years— but they had them in there and they
DAVES: The only evidence they'd been able to acquire was a boot print that they had gotten, a little concrete boot print of— that matched the boot that
Herman Davis had on that night.
DAVES: They had a statement from a young lady on probation that she had seen Herman Davis with a blue .38 at some point. So they had— and they knew that that
shopkeeper had been killed with a .38. They had— and that was it.
DAVES: They had a statement from this young lady that she had seen Herman Davis with a .38— a blue .38 pistol, they had Herman's boot print and that's
DAVES: Baldry's wife had been at the store when he was killed, but she wasn't able to identify whoever it was that had done the shooting.
DAVES: Well, so we knew based on— I'd learned all that during the course of the writ hearings, talking to the guy, talking to the mother, and just talking to
the witnesses as I was getting ready on those things.
DAVES: Also I knew from the writ hearings, there was a rumor in the Black community that it had nothing to do with the Davis sons at all— that this lady had
bought— that the wife of Mr. Baldry had just dramatically increased the amount of his life insurance;
DAVES: that she was very upset with him because he had had, for twenty-something years, a mistress who worked for him and running one of his nursing homes—
he had a nursing home that he owned there in town.
DAVES: So that was the word in the Black community that the person who had the motive to do this was the wife— that she was angry because the husband had
been unfaithful to her for twenty years or whatever. Okay. So that was the little we knew.
DAVES: As we— as I was talking to the law clerks, my notion was that if the Black community knows, the white community should know this. You know what I
mean? This is segregated society, yet this is what the word was in the Black community.
DAVES: And so you can suspect in a small town that this should also be the word out there in the white community.
DAVES: So we felt like, from the very beginning, it was really, really, really important to try to find people who had some sort of personal integrity in
terms of being willing to comply with what the law is and listen to instructions,
DAVES: and give a person the benefit of the presumption of innocence to not to allow the fact that a person had been indicted to be any presumption
whatsoever of the evidence against them.
DAVES: And again, to deal with, as effectively as you could, with trying to minimize the effect of race in a society where there was no question, was very,
DAVES: So at any rate, so we show up and I was literally afraid to stay—particularly for the law clerks— for us to stay in San Augustine County.
DAVES: So we got a few hotel rooms there in Nacogdoches and we would drive the, whatever it was, thirty-five or forty miles into San Augustine every day. And
I didn't know much else to do than proceed, just go ahead.
DAVES: I thought I'd filed all the motions that I could that hadn't worked. I didn't know anything else to do but get in there and do the best we could. So,
we got there and started— started doing the voir dire.
DAVES: While I would be doing the voir dire, Liz and Bruce would be out there talking to people, doing some investigation to try and do everything we could
to try to get ready for the case.
DAVES: It turned out that— and we worked on this set of questions that I was going to use, and I really focused on, again based on Ann Ginger's things.
DAVES: I used her basic questions in terms of the presumptions; the critical evidence are your presumptions that you— that are the guiding principles of
criminals— of representing anybody in any kind of criminal case.
DAVES: And then— and I pretty well used those questions without much change, because those principles that are in effect in California are universal. They
are the ones that apply here in Texas.
DAVES: But I did change the ones on race because they just lived in a completely different part of the universe. The questions they asked were just: How do
you feel about Black Panthers? No way in the world I could ask that question.
DAVES: There's just no way I could get any kind of relevant information, and so I changed it to try to correspond with what was going on in East Texas.
DAVES: I wanted to know, Well, did you go to school with any Blacks? We know they didn't. It was still— at that point schools were still segregated, so we
knew that was a basic question: Did you go to school—? No, I didn't.
DAVES: Did you ever have any Black friends? Have you ever had a Black person in your home? Have you ever had a Black person who worked for you? Have you
DAVES: And I went through a series of questions, and all those were neutral questions as far as I was concerned. I really couldn't care less what they ended
up saying; I really could care less. I was really waiting to rate them on some other questions.
DAVES: As I'd lived in Amarillo, which is very segregated itself, I'd gone to school, white schools, that had only one Black kid. He was on our football
team, was in the Air Force --
DAVES: his dad was in the Air Force and that was the extent of integration in Amarillo, Texas, at the time I graduated from high school. So I was just going
on my own experience.
DAVES: Amarillo is, of course, different from East Texas. But all I could use was my own experiences.
DAVES: And so what I had decided as the most critical question, that I really evaluated, was: Have you ever been in a crowd of Blacks? Oh yeah, I've been
where you were the only white person in that crowd.
DAVES: And under those circumstances, did you feel any fear? And if they said yes, I started writing down one, two, three plusses; there's an honest human
being right there. ‘Cause I was just trying to go by my own experiences, you know what I'm saying?
DAVES: And maybe I was wrong, but I was just trying to go by my own experiences, and I felt like if someone is going to be honest about a powerful thing like
that, then I thought that we're looking at somebody who is probably honest.
DAVES: My best hunch is this is an honest person. So anyway, that was the kind of things I did. Then— and I spent— but most of my time I really spent on the
basic constitutional issues at stake, in terms of presumptions— the presumption of innocence.
DAVES: When you're listening to witnesses, are you going to give the benefit of the doubt to somebody who has worn a uniform or is wearing a uniform versus
somebody who just comes in and is a civilian, has not worked for law enforcement—
DAVES: the standard type of criminal justice questions you ask. And I guess we'd been doing this— I'd been doing this voir dire for two or three days.
DAVES: I had one guy who I had at the very beginning— kind of thought, Well, this man, we may want him, because if we lose on guilt/innocence, he might help
us on capital punishment because he had— this guy was a military guy
DAVES: and he'd been like a sergeant or something like that; and he'd been in the military for a long time, was retired and had come back home
DAVES: and when the prosecutor had asked him about capital punishment, he sort of hesitated about whether or not he'd be able to impose capital punishment,
and I thought,
DAVES: Hmm, this is a little strange, because most people have no hesitation whatsoever: "God damn wouldn't bother me a bit." But he hesitated a little.
DAVES: So I wrote that down and though, when it was my turn to talk to him, I said, I noticed you hesitated when the district attorney asked you about the—
about your feelings on capital punishment.
DAVES: And he said, "Yeah. Oh yeah, I think it's too fast. I think they ought to draw and quarter ‘em."
DAVES: And I was so glad I'd asked because I'd sort of thought— I'd lived in Amarillo near a military base, and it was an Air Force military base,
DAVES: and my common experience had been that many people in the military were actually— were a little bit more open minded about racial issues because the
military had been integrated for some years.
DAVES: And so that— and so I had actually thought that maybe I had ought to let this guy sneak in and he may really help us. But I'm so glad I didn't, and as
a young lawyer, you never know.
DAVES: And the whole point is best to— well anyway, I'm glad I did ask him. Because I was— Jesus, there's no way in the world I'd let that man on, you know
what I mean? Given that attitude.
DAVES: So I ended up using one of my preemptories on that fella. I had to use preemptories. You don't know how many times I tried to get some of these people
for cause but the judge wouldn't grant any of my causes.
DAVES: Everybody I got off I had to get off on preemptory challenges. But it took a week and a half— you know what I mean? I went through it pretty
DAVES: We had one lady— it turned out Mr. Baldry's mistress was on the panel, and that was particularly interesting because I had no idea until she got up
there and we started asking questions: What do you do? Well, I'm a manager for this so-and-so nursing home.
DAVES: Who did you work for? Well, I worked for Mr. Baldry. Oh, Mr. Baldry is the man who was killed in this case, isn't he? Oh, yeah, yeah, he's the one. It
wouldn't bother you to sit on the jury and be deliberating the fate of the person who is accused of killing your boss?
DAVES: Oh, no, that wouldn't bother me a bit. And she had gone on and on and finally— and I'm not sure how it finally— I'd already gone through all the basic
questions, but somewhere along the line, I finally got her talking a little bit more about Mr. Baldry.
DAVES: And what kind of interaction she had with him, and what kind of boss was he. Oh, he was a wonderful boss, and he was a loving man, and he was a
tremendous human being kind of thing. And somehow— and I can't remember exactly how I did it—
DAVES: but I went ahead and used that, and I said, "Now, if you end up being on this jury, you're going to have to make a decision about the— or you might
end up having to make a decision that would result in either the life or the death of somebody
DAVES: who's accused of killing a person who you clearly loved." And she broke down crying. And for some reason, the judge went ahead and let her off at
point and I didn't have to use a peremptory on her. But the important thing for me was it confirmed the rumor.
DAVES: It confirmed the rumor and I thought, Okay— Ah-ha. So I thought, Okay, and I can't think of anything else significant about the jury.
DAVES: During voir dire we only had one or two people of the whole thing, and I don't think we had any Blacks whatsoever in the group that we ended up
finally talking to. The only— we had some Catholics, and this was a very Protestant part of Texas.
DAVES: And Catholics, of course, you want on the jury because Catholics by and large don't believe in capital punishment. And that was about as close as I
got to thinking, but they were all struck, of course, by the district attorney.
DAVES: And so most of anybody who could possibly be helpful for us on punishment— they were able to get struck for cause because they didn't believe that
they could possibly inflict capital punishment. And I think that's what happens in every capital case.
DAVES: It's one of the really bad, bad parts of the system— is— because those people who are most likely to actually— to be helpful to the defense never get
to ever serve on there.
DAVES: So you end up with a group of people who wholeheartedly endorse capital punishment, who don't seem to have any reservations whatsoever about it and
DAVES: That's one of the most terrible things about the present system is that that's— it's not possible to get someone on there who has qualms about capital
DAVES: And that's not right because a huge part of the population of this country doesn't believe in capital punishment but the people who are opposed to it
are opposed to it in principle.
DAVES: And because they are opposed to it in principle, those principles that they hold—they hold so dearly— and they will not sacrifice it just to sit on a
jury. It's really very rough.
DAVES: But while I was out— while I was doing what I was doing, the two law clerks were busy little bees and they went to every shoe store and every store in
town that sold shoes
DAVES: because one of the big issues— the best evidence they had, was they had a copy of the boot print of Herman Davis, the same size boot print.
DAVES: And whatever it was— I don't remember what it was, but it was a standard— these guys— he worked in the timber industry, cutting timber, and they had a
standard boot that sold steel toes so they don't break their toes if a tree falls on them and things like that.
DAVES: So they went to every store in that area that sells shoes, and so they knew exactly how many shoes of that size were sold in any given year for the
last what— the last three, four, five years.
DAVES: They also— we knew that no— I didn't know— they figured out that the night that Herman was arrested was on a Thursday; he was arrested around eleven
o'clock at night.
DAVES: They somehow just decided to do some investigation and found out—went to the weather station—found out that it was a hell of a rain storm that night,
three or four inches of rain fell that night,
DAVES: and so the very night—the night after they pick him up, there's this huge, huge, huge storm there in San Augustine County.
DAVES: The evidence of course that they had—they had a plastic imprint of the boot print that was made as Herman Davis was supposedly running away from the
scene of the crime after shooting Mr. Baldry. And they'd made plaster prints of that boot print.
DAVES: So—and that was significant because it turns out, once we actually went to trial, the very first witness that the state called was this Texas Ranger.
And he didn't fit any of the stereotypes of the Texas Rangers. He was short and he was fat.
DAVES: But he was a Texas Ranger that had gotten on the scene there and he took notes. It was very helpful for us because his—when he got on the stand and
this all came out, not on direct, of course, but on cross.
DAVES: On direct, he talked about the boot print and how they did the boot print and he did the boot print and all that, but when I got to question him, and
I asked him to look in his little diary and all that, Well, when did he get the boot print? When did he get all that?
DAVES: It turns out that he'd gotten these boot prints on a Sunday afternoon. They'd had this man in custody since eleven o'clock Thursday night and it
rained an unbelievable amount of rain that particular night, you know what I mean?
DAVES: And so we'd called the weather people, of course, when we finally got to putting on our case. But the fact that he'd made a diary, that at least he
was honest about that, didn't throw the diary away, didn't tear the diary up, I thought was commendable.
DAVES: It showed at least some professionalism on his part because that ended up being very important evidence, particularly since this was some of the most
powerful evidence they had.
DAVES: But the fact that they did make it to that Sunday kind of dilutes the power of it, in terms of how much weight you should be able to give it. Next big
issue was the issue of this statement of this young lady still on probation.
DAVES: She was a person on probation, had written a statement saying she had seen Herman with a blue .38 at some point in the past.
DAVES: Well, we talked to her, and she said, "It's not true. I hadn't seen him. But I didn't know what I could do. I'm on probation, and they threatened
DAVES: But at any rate, when they called her, one of the big evidentiary issues, and it just so happens that this Harrisman's book dealt with it, is that
they're not going to be— she had made this statement that she had seen him with a gun.
DAVES: They didn't have a gun. All they had was her statement that she had seen Herman with a gun. Well, one of the cases that Harrisman had in his book that
was really, really important for us was that the jury could not go to that original statement.
DAVES: When she got on the stand and she said, "No, it's not true." All they could use that statement for was to try to impeach her. But it could not be used
to prove, on the merits, that in fact she'd actually seen him with a gun.
DAVES: So we were able to get a limiting instruction based on Harrisman's reversible error manual to instruct the jury that you cannot use this. There was
not any evidence whatsoever that Herman Davis actually had a gun.
DAVES: All you can use that for is whether or not she was telling the truth on the stand when she denied in fact that she'd ever seen him with a gun. And to
me, that was important. To law students and to lawyers maybe that's important.
DAVES: We thought it was very important so we certainly got an instruction on it. The other thing that was at least worth mentioning in the case—the most
important thing was what—when Mrs. Baldry got on the stand, they called her as a witness,
DAVES: and again, we knew about the rumors and so we kind of discussed between the three of us how to deal with that and about the insurance and things like
DAVES: And this was a period of time when Perry Mason had been this big guy on TV and the way he defended all cases was by going out and proving someone else
did it. And we really had to think about this a lot.
DAVES: This lady was elderly, and again, my notion was the white community is probably aware of this story already. They knew that we were outsiders. We
probably shouldn't be privy to this information in other words— we were outsiders.
DAVES: And so again, strategically, instead of going ahead and asking her, "Isn't it true you just bought some insurance—an insurance policy? Isn't it true
your husband was out there with this mistress?" No way. Let's not talk about that whatsoever.
DAVES:We figured that was already in the community. Whether right or wrong, we'll never know. You never know on these things is the whole point. So what I
did instead was just focus on what she saw and didn't see.
DAVES: Did she—she saw somebody come up and shoot a gun a couple of times into her husband, drove off in a vehicle. How close were you? Thirty feet away?
Could you tell if they were Black or white? No way. I couldn't tell. I had no idea whether they were Black or white.
DAVES: And she hadn't identified Herman on the stand anyway. If they— if the prosecutor is able to get an eyewitness to identify somebody, they'd of already
done it. So I wasn't about to take a chance on that one.
DAVES: To me, the important thing was— couldn't even tell if he were Black or white and here they have this Black man in court, accused of it and here's the
only eyewitness. So we left it at that. Best just leave this alone, and again, you never know— you never know.
DAVES: But that is what we did. But we thought about it; we talked about it, the three of us, at night when we'd get in from the day's deliberations, or the
trial. We'd try to work out these things, try to think about the next day's testimony, or what we were going to do.
DAVES: And then, I think probably the most important thing I think about the trial, really, was this Deputy Davis. Deputy Davis was the person who found
DAVES: Deputy Davis was the one who came up to him after he'd been killed—after he'd been shot—and Davis was the first Black law enforcement official to ever
be hired in San Augustine County and he'd been hired as a deputy sheriff
DAVES: and his job was to go around the different businesses and check on them and see if they're safe and things like that.
DAVES: And so Deputy Davis—his whole routine was to go by there at ten o'clock at night and check on them because that was when they shut down the stores;
they'd be getting their cash and taking it home.
DAVES: And the law clerks and I just started thinking, as part of our strategy: Davis is Black. East Texas still has this thing about— they referred to
Blacks, to Black men, as boys.
DAVES: And so we got to thinking, Hmm, I wonder if there's any chance at all that when Mr. Baldry said, "Go get the Davis boy," that what he was thinking
about— what Baldry was thinking, was go get that Black deputy sheriff.
DAVES: ‘Cause that's what we—we just started thinking about this: I wonder if there's any way in the world?
DAVES: And so when Davis got on the stand, he'd told the story, he'd got there, the man had already been shot, walks up to him and Baldry's still alive when
he gets there, and he says to Deputy Davis, "Go get the Davis boy,"
DAVES: and of course that's why they go as quickly as they could and pick up Herman Davis.
DAVES: And so I go ahead and I said, "Deputy Davis, have you— has there ever been a time since this killing when you think back over what happened, and when
you heard Mr. Baldry say, "Go get the Davis boy,"
DAVES: have you ever considered that he might have been referring to you?" He said, "If I thought of it once, I've thought of it a hundred times."
DAVES: And so that really was really, really important because here was a man at the time of the dying declaration—that's how you get that evidence in—who
had a serious doubt. Not just once but, "If I've thought of it once, I've thought of it a hundred times."
DAVES: And so it absolutely destroyed the—even the dying declaration evidence to have this man—
DAVES: But at any rate, to make a long story much shorter, there's really not much else of the trial other than Herman Davis got up there and of course
denied having anything to do with it, and whatever, because we did think it was important to go ahead and put him on.
DAVES: He had no convictions against him or any of that. Then we spent a lot of time trying to put together the final argument. It was fairly easy at that
point. We were able to get a limiting instruction with regard to this young lady's testimony.
DAVES: Couldn't use that for the—to prove the—that he really had a gun. I think about the only thing I could think of— I think the only thing I felt I needed
DAVES: and I made the argument in the final argument to the jury that if Deputy Davis had doubts about the dying man, How could you not have a doubt? And
that's all that's required.
DAVES: Their burden is to eliminate every reasonable doubt and if that can't be done, it can't be done, essentially.
DAVES: Oh, and then I explained to them that—I explained to the jury that—why I'd gone through the questions that I did in terms of asking about these really
delicate issues on race. And I tried to explain to them what our theory was: that we were looking for honest people.
DAVES: And it worked. The jury went out and, I think, I remember going down the stairs and took a little book with me, sat out there in the park watching
DAVES: It was an old-fashioned courthouse and the jurors were up there in this huge room where you could kind of see. And after the first day, the three
or four people that we felt would be good, they were—they were solid.
DAVES: It got to the point they wouldn't even talk to the other people. Finally, by the second day, there were like, instead of three or four, there were
five of them in that one group, and then it went on to the third day and the district attorney finally came in and conceded.
DAVES: He said, "Your Honor, I think we have a mistrial here." And it was a mistrial. We didn't get an acquittal, but we got the next best thing. Those
people that stuck with us stuck with us all the way.
DAVES: And they ended up granting a mistrial and eventually dismissed the charges against both of them. So that's it. Took about three and a half weeks or
so. It was quite an experience, for sure.
RAYMOND: Thank you. We're going to stop right here. (End of Disc Two.)
In Video 1, Daves describes how he and small group of recent U.T. Law School graduates first went to Nacogdoches in the early 1970s to assist voter registration efforts in Black communities; the virulent anti-Black racism and poor material conditions the students observed in East Texas; how they started a legal services office; effects of single-member districting; and his first criminal trial. He also describes his current work with the Piñon Canyon Expansion Opposition Coalition as it resists U.S. Army plans to turn much of Southeastern Colorado into a training area for a ground war against China. In Video 2 and the first part of Video 3 he recounts the capital murder trial of Herman and Thurman Davis. In Video 3, Daves describes his successful representation of undocumented immigrant children barred by Texas statute from attending public school, a case that he filed in federal court under Judge William Wayne Justice, and that ultimately reached the U.S. Supreme Court as Plyler v. Doe. Video 3 also describes Daves' unsuccessful representation of Mexican American women workers who lost their jobs and organized as Fuerza Unida when Levi's closed its San Antonio plant. Video 4 concerns Daves' upbringing in New Mexico and the Texas Panhandle, including high school in Amarillo, his family's early encounters with law enforcement and juvenile incarceration, and finding his way to Washington University and then U.T. Law School.
2 of 4
Virginia RaymondRole: Interviewer
Gabriel SolisRole: Videographer
Jorge RenaudRole: Transcriber
Sabina Hinz-FoleyRole: Proofreader
North America--United States--Texas
North America--United States--Texas--Austin
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