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

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

So at any rate I show up in St. Augustine County that Monday morning. 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 cars everywhere. 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.

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? 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. 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.

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. You know I about fell over. I thought, God all mighty, what is going on here? 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?

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. 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’s the attorney on this thing. 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. 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. 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. I asked for an appointment of a psychiatrist for the psychiatric examination.

I even filed a grand jury challenge. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. They had been in St. Augustine County; he had been there for years. He was the former attorney general. 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, but I really didn’t know that at the time, but I know now.

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.

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. That all judges know you can’t do. It’s not— this was established law.

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. And the reason for the seminar was that the state of Texas had just re-instituted capital cases. 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.

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. 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. 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. 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. 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. 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.

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 there. 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?”

And so the prosecutor and his private attorney stand up and say, “We’re ready, your Honor. We’re ready to proceed.”

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. 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 death.

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.”

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. 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—

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, 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, 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 staled out. So eventually, no one would do it.

But this man showed up and went ahead and tried this case for this Black couple, a speeding case or something like that. 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.

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. But I’ve always remembered, he gave me that one-hundred-dollar bill.

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. 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. 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.

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 St. 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.” 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.” 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. 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 St. Augustine County at that time.

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, 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. 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. 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.”

LARRY DAVES: Well, I was so happy to get out I didn’t say a word. I went ahead and I got out and I got in my car and I drove back from St. Augustine to Tyler, Texas.

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 right now. 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. We’ve got to go down to St. Augustine County and they’re doing the Herman and Thurman Davis case down there.”

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. 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. 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. 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 with me.

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 applicable, but— however— what it did was she had included some questionnaires that they had used in some of those Black Panther cases. 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.

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. 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 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. 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.

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. He owned a little store there in St. 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.”

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. 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. 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 in jail.

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 of them. When they couldn’t get one in St. 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. 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. 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. 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 wouldn’t confess.

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. 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. 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 it—literally it.

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. 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.

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; 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. 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.

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. And so you can suspect in a small town that this should also be the word out there in the white community. 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, 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.

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, very racist.

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 St. Augustine County. So we got a few hotel rooms there in Nacogdoches and we would drive the, whatever it was, thirty-five or forty miles into St. Augustine every day. And I didn’t know much else to do than proceed, just go ahead. 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.

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.

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. 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. 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.

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. 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.

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. 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 ever? 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.

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; 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.

Amarillo is, of course, different from East Texas. But all I could use was my own experiences. 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.

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? 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. 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. 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— 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. 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 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 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, 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.

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.”

And he said, “Yeah. Oh yeah, I think it’s too fast. I think they ought to draw and quarter ‘em.”

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, 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.

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. 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. 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. 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 thoroughly.

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.

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?

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. 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— 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 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. 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.

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. 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.

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. 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.

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 that’s wrong. 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 punishment. 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. 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.

Part six of nine – Thurman and Herman Davis capital murder trial, continued to verdict

LARRY 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 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.

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.

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.

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. 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, and so the very night—the night after they pick him up, there’s this huge, huge, huge storm there in St. Augustine County.

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. 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.

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. 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?

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? 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. 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. But the fact that they didn’t 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. 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.

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 me.”

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. 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. 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.

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. 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. 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, 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 that.

And this was a period of time when Perry Mason had been this big guy on T.V. 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. 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.

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. 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. 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. 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. 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.

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.

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 Baldry. 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 St. Augustine County and he’d been hired as a deputy sheriff and his job was to go around the different businesses and check on them and see if they’re safe and things like that.

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 case and taking it home. 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.

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. ‘Cause that’s what we—we just started thinking about this: I wonder if there’s any way in the world?

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,” and of course that’s why they go as quickly as they could and pick up Herman Davis.

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,’ 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.”

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.”

And so it absolutely destroyed the—even the dying declaration evidence to have this man—

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. 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. 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 to—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. Their burden is to eliminate every reasonable doubt and if that can’t be done, it can’t be done, essentially.

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. 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 the jury. 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. 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. 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. 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.)

RAYMOND: And you just stopped telling us—stopped telling us about the trial and why are we telling it to the tape, if you didn’t think it was worth it?

LARRY DAVES: Well, the Davis case is a very unusual case. And I think the fact that it was unusual, and I think there are several reasons for that. One, I am—I will be convinced to the day I die that I was representing an absolutely innocent person. There’s no question whatsoever. And regardless of our ethical responsibilities I am sure, or I feel like, there is probably a real—that lawyers feel a lot more powerful affinity for someone that they really believe is innocent than rather in—as opposed to where they’re being charged with the responsibility of representing somebody who’s done some really horrible crime, okay. So I think that’s one thing. I’m convinced and I’ll be convinced to the day I die that neither Herman nor Thurman committed any crime whatsoever in regard to—on this one.

Second, the other thing that I think is—what I think we observed there in St. Augustine County in that case was a rare case of some pretty gutsy people. I’m thinking about two criminal defendants who were locked up six to eight months, whatever it was, and stuck by their principles, you know what I mean? They refused, and so many times people in jail or in that—in any kind of criminal justice system, do whatever they have to just to get out of it. So I think that was unique. You had two very gutsy guys who just wouldn’t admit to doing something they didn’t do, okay.

And I think that was—I think it also was some pretty powerful professionalism. Deputy Davis was unbelievably courageous. This was one of the first Black men to actually get into law enforcement, where what you—and law enforcement has a code of conduct, an unwritten code of conduct, where you are loyal first of all to the uniform and to law enforcement and nothing else is of any consequence.

He was—he knew exactly what he—when he testified that “If I thought it once, I thought it a hundred times,” he was violating a code. He was—and I have no idea whether or not he was able to stay on as a deputy or whatever—

And again, this was really, again, the first Black man to get into a position of law enforcement in St. Augustine County. And that is not gonna happen very often; when, to somebody, it is so important to be able to get into some of these careers so that was unusual, I think.

Then you had an extremely professional, honest law enforcement man. The fact that this Texas Ranger took notes, was professional enough and ethical enough that he didn’t destroy them— I thought—I think that was an important thing. The fact that they would— the fact that anywhere they would try to prosecute a case where they had no business whatsoever prosecuting— I can’t imagine that kind of thing happening in Texas, at all. I don’t understand how it could have happened then.

I know that the judge called me in. I’m not sure when it was during the trial, after the second or third day, and sort of lectured me about it, that he felt like I was too zealous. He felt like— he got after me for being— for trying so hard. He said, “You don’t have to do this,” you know what I mean? “You don’t have to do this.”

And whatever that meant, or whatever, but my obligation was to represent my client, and I had no respect for that judge anyway, you know what I’m saying?

But the court can have a huge impact on how a trial is run. And it’s really hard for a lawyer when you’re in one of these situations to remember what their loyalty has to be to, which is to the client. I mean, it is especially, in a very coercive environment and for whatever reason they were motivated—and I can’t for the life of me forget how that case was— to understand why it was so important for them to try to prosecute these two young men, because— But at any rate, but they did and it didn’t work for them.

But I think the other thing that is unusual is, and I think it’s— but—and I’m not sure how unusual it is. I think that the fact that you would have jurors who would stand up to the system the way they did, because their basic argument and their final argument was, “You’re not going to let these outsiders come in here and tell us what to do.” And that essentially was their argument, because we didn’t live in St. Augustine County. But that was their basic argument. “You’re not going to let these— you can’t let these outsiders come in here and interfere with our business.”

And yet you had this group of jurors, white jurors, in a white courthouse, still refuse to go along with the power— the seat of power in that county. And just as an incidental matter, I came back in—I went back into St. Augustine County some years later and really saw the impact of it. That particular attorney who had—the—the guy that had been attorney general before had dominated politics in that area. This particular case apparently ruined him. They ended up— the city council, within—I want to say three years because I was there four years later— within three years, you had Blacks on the city council, you had Blacks on the school board, you had— their whole system that tied that area together for all those years collapsed. And probably not just because of this case but this probably was part of a number of things that must have happened but it was symbolically a powerful thing. Where they just—and it shows you how one little thing can have an impact.

RAYMOND: What happened to the Polk sisters? Do you know?

LARRY DAVES: Oh, that’s even more tragic. We ended up—they dismissed those charges eventually. They didn’t get prosecuted. That was a sham, from the— I went to federal court before Judge Fisher, who was a—do you know Joe Fisher?

RAYMOND: No.

LARRY DAVES: Boy, Judge Fisher. I had to deal with him and be in his court a number of times. He was an old East Texas judge who had—he was—who had a—he was powerfully lenient toward the person who injured— He was powerfully opposed to any lawyer who had anything to do with trying to vindicate somebody’s civil rights. He hated my guts. He treated me like a dog, I’m gonna tell you. He really hated me. He couldn’t understand, I’m a plaintiff’s lawyer yet I wasn’t out there doing personal injury cases. He couldn’t understand it. I considered myself a plaintiff’s attorney even though I was a civil rights lawyer, so I was—I was—it hurt my feelings that he hated me so much. But we tried the case to him. He awarded damages against my clients; it was the doctor’s. It wasn’t much—a couple of thousand dollars, but it just was outrageous; it was outrageous. He was an outrageous man, so we lost it.

And—but I can make the statements I make about him because I did a number of other cases with him on whether it was representing people who had been locked up. They had a group of hippies out there who had been rounded up by a number of law enforcement people, put into cages, like sixty or seventy of them in a—in one little jail cell. They were out on an island doing their thing, having a concert or whatever, and local law enforcement people had arrested all of them. There were three of four hundred of them with kids, women, children—locked all of them up, put them in cattle cars, took them into, put them in jails, the middle of summer and it was so hot that it was just a horrible, horrible situation. Anyway I did a case against that and he threw it out completely.

Another case where I was representing these Black railroad engineers who had not been allowed to stay in a hotel outside Texarkana. So what? Who cares? That was his attitude. It was just—I had to appeal every single case that I tried in front of him, so it wasn’t just that case. I had more respect for the bar, I mean for the bench, than that. But I know that this man had no—he never saw a civil rights case that he felt was justified is all I can say about that. He was a very unusual judge.

RAYMOND: Well, speaking of hating your guts, you talked about being afraid to stay in St. Augustine—for you and for the law clerks, Liz and Bruce. What gave you—what was the basis for that fear?

LARRY DAVES: Well, St. Augustine was a Ku Klux Klan county. It was one of those counties that had been under the influence of the Ku Klux Klan for some generations. And I knew that from Mr. Weaver and from the clients. And just generally how it was known—this was known as a very dangerous part of the world. Some years later, I can’t remember if it was Newton County, or whatever county it is right above it, that’s the very same county where they— these three white ex-inmates drug this Black man behind their pickup truck to death. And that was years later—

RAYMOND: Ten years ago this month.

LARRY DAVES: Huh?

RAYMOND: Ten years ago this month.

LARRY DAVES: And this was a very frightening part of the world and I wasn’t used to it. Just to be really honest, I didn’t grow up in that kind of a world. And so I was frightened of it; it was a world I wasn’t experienced with. I didn’t have experience with that kind of a world, and I was just personally afraid of it.

RAYMOND: Were you ever threatened for doing civil rights work in East Texas?

LARRY DAVES: The first few years, I don’t care what kind of work you do— I guess the people there didn’t understand why I was doing what I was doing. I don’t have bad feelings toward anybody. I had my windows knocked out, I ended up getting physically assaulted in Nacogdoches County by somebody we’d sued for a Black client.

And— the problems I still have is not with the private individuals out there, and maybe it was because of the jail litigation we did, but I— law enforcement did not care for me at all. And I’d never done anything, as far as I know, to cause them to dislike me so much.

But I was—I always had a very difficult time dealing with— one of the reasons that I quit doing—quit representing people in criminal cases is because law enforcement people really disliked me so much because of the kind of work I was doing and I was afraid that was going to rub off. And I didn’t want my clients getting a bad shake just because of who they had as an attorney on cases.

But I think part of it was just—I went into East Texas at a time where there was—dramatic change was taking place and should take place, and should have taken place many years earlier. And I happened to be one of those people that sort of symbolized that and made it possible for people who hadn’t in the past had a voice. I was one of those people who kind of gave them a voice. So I ended up getting some of the ill feelings on part of the people who were getting offended by that. That’s all I can say. So, but it certainly didn’t hurt me—certainly didn’t make my life unbearable or anything. It just—it just wasn’t—just— it’s unpleasant.

So I ended up moving up away from Nacogdoches up to Tyler, a little bigger city, where I didn’t have to worry about my family’s physical security and things. And I’m glad I did. I love Tyler and Tyler’s been very good to me.

RAYMOND: I’m really struck by, when you talked about the Davis case, the fact that there was this deep racism and—but—coexisting with— you recognized it, and yet you looked for the honest people who were willing to recognize the extent of it within themselves.

LARRY DAVES: There always will be people like that, I think.

RAYMOND: Did you talk to any of those jurors? Afterwards?

LARRY DAVES: No, I didn’t and I’m not to sure why. I rarely did talk to jurors after any case. Some lawyers just do it as a practice and I had— I felt like they did their thing and I did my thing. And I’m just unusual as an attorney. Some attorneys really want to go back and see what did work and what didn’t.

Continue with Larry Daves: On jurors and the jury system