Interview with Larry Daves: Criminal defense work in East Texas in the early 1970s

See the full video and transcript of the Texas After Violence Project Interview with civil rights lawyer Larry Daves on the Human Rights and Documentation Initiative (HRDI) of the University of Texas at Austin Libraries

Interview copyright Larry Daves and Texas After Violence Project, 2008.

Continued from Larry Daves – interview by the Texas After Violence Project>

LARRY DAVES: I started— I did a lot of criminal work, and again, from the very beginning because the whole point— the whole reality is that the criminal justice system is not operation very fairly at that time in East Texas. I hadn’t been a practicing lawyer for a month before I ended up taking on my very first murder case as a criminal defense attorney. I guess I did two or three other fairly serious criminal defense cases, all involving murder. Over the next couple of years, and I don’t know how it all happened, but I was very lucky in all those cases.

The very first one, the Mac Cole case, I had the help of a young student there from college, Robin, and he went on to law school and ended up becoming a personal injury lawyer eventually. But Robin Collins— Robin worked as a law student, an investigator for me, and we had a situation where Mac Cole was accused of killing, with malice, this friend of his while they were on a fishing trip. They had— these guys had gone out on a boat out there in Nacogdoches County to check the catfish trot lines. The guy that—my client—they said had maliciously killed, had been in prison for fairly serious felonies, and because they were out on the boat getting catfish, they had—some of these catfish could be sixty—eighty—one hundred pounds catfish—huge. And so they both had guns. That’s what my client said. Mac had a gun; he had both a pistol and a rifle. And the other man— I can’t remember his name, had a rifle. And what my client said was that they got to arguing out there. They were drinking while they were fishing, and it was a lot. And as they were coming into the shore, they were fighting about a mutual girlfriend. And what my client said was that this other guy, who again had just gotten out of prison and had been in prison over some serious, aggravated thing that he’d done— my client said that this other man pulled this rifle on him and said— threatened to kill him. So he went ahead and pulled out his gun and killed this guy in defense— in self-defense. Well, the law enforcement people didn’t believe anything and didn’t really do much of an investigation. And so they went ahead and had— charged Mac Cole with murder with malice. Robin— anyway, lord knows how I had the nerve to take on some of these cases with so little time.

But anyway, Robin went out and we were already starting the trial and Robin went out to Reno, or wherever it was that this killing had occurred, and just started scouting around and looking around and lo and behold, found the rifle that the other man had had. They found— they got Mac Cole’s rifle but they hadn’t found the other man’s rifle. They just didn’t believe him. They apparently didn’t believe this other man had a rifle. And even better than that, found a white witness who had seen the darn thing. These were two Black men, and this white witness said, Yes, he saw them out there arguing, saw that the other guy pulled a gun on our client, Mac Cole, and so we brought in the witness, and brought in the gun, and didn’t even have to take it to the jury. Because once the prosecutor actually talked to the witness, saw the gun—went ahead and dismissed the charges against the guy.

But, again, I probably shouldn’t have taken on some of these things. In retrospect, I didn’t know anything. I was just out of law school. I had very good— Professor Sharlot was the one who taught criminal evidence and things like that. And I— probably, if it were to happen now and I were just coming out of law school— I wouldn’t dare do it. But I came out of law school at a time where we had somehow— I had somehow developed the impression that we didn’t have limits. That we could do what we could do. And so anyway, we went and took the case. Turned out it was a good ending. It could have been just the opposite, but it didn’t. I just had— I had help. If it hadn’t have been for Robin being able to go out there and actually find this witness, it probably would have been a different outcome.

RAYMOND: Thank you. We’re going to take a break because the tape, we need to change the tape.
(End of Disc One.)

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. 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, 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. The prosecutor messed up. There had been a change in the law and when they indicted this client of mine for murder with malice. 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. 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. 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.

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. And so, once I made my motion, they figured out they had messed up the whole thing but it was too late. 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.

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. 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 Appeals. 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.

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. 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.

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. 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.

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. 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. 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.

Part four of nine – The Thurman and Herman Davis capital murder trial

LARRY 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. Some of them were in Angelina County, some were in Rusk County, but most were there in Nacogdoches County. 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.

They were from St. Augustine County, and had been in jail at that point for maybe six, seven, maybe eight months. 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 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.

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. So I went to St. 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. Once we got the bond down to ten thousand dollars, there were two funeral directors there, Black funeral directors in St. Augustine County, who were able to make that bond and got them out. 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.

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. The Polk daughters were the three young Black girls who I had filed a federal law suit for against the sheriff of St. Augustine County, and against a doctor in St. Augustine County 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. 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.

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. 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. 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 were going. 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. So I filed false arrest against the doctor, against the sheriff and all that, and those were the Polk daughters. 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.” 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 absolutely outrageous. They were just retaliating against them, I thought, because I had filed this federal lawsuit against the sheriff and the county and the doctor.

Continue with Larry Daves: Representing Herman and Thurman Davis in a capital murder trial