Texas v. Davis
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Several readers have encouraged me to tell a bit more about the right angle turn that led me into the field of forensic linguistics. It’s a long, strange story but I’ll try to hit the high spots here. If you’re interested you can find a more thorough report in my book, Creating Language Crimes (Oxford U Press 2005).
After the man sitting next to on the airplane asked me to take a look at the tape-recorded evidence in a solicitation to murder case, I agreed to do so and a day or so later the lawyer in that case, Richard “Racehorse” Haynes, sent me the audio-tapes. The case was Texas v. T. Cullen Davis. The crucial conversations took place in Davis’s Cadillac, sitting in a sweltering Fort Worth parking lot.
Davis had inherited a successful oil equipment business from his father. Not the business executive that his father was, Davis liked to hang around with the workers, including a salesman named David McCrory.
Davis’s second marriage was to a notably flamboyant woman named Priscilla, whose reputation was somewhat questioned by the local people. I can’t confirm this, but it was rumored that as a wedding present, Davis gave her a necklace with diamonds spelling out the words, “rich bitch.” The marriage did not go well and they soon separated. Davis moved out of their huge home, which is still referred to as “the mansion” in Fort Worth.
One night a masked intruder broke into the mansion and killed Pricilla’s current boy friend, Stan Farr, and her 12 year-old daughter by a previous mate. Priscilla suffered only a wound to her breast. As soon as she recovered, she accused Cullen of being that masked intruder. He was arrested, and within a year he was tried in an Amarillo court and acquitted by the jury.
The saga didn’t stop here, however. Nine months later, while the divorce proceedings were in progress, Davis became convinced that Priscilla was intimate with the judge of their case. Davis said that he then hired his employee, David McCrory, to tail the couple to get the goods on them. But McCrory told a very different story. He went to the police and told them that Davis had asked him to find a hit man to kill the judge, Priscilla, and two witnesses who claimed to have seen the masked intruder leave the mansion in his previous murder case. McCrory also reported that Davis had threatened to kill him if he told the police about this.
The local police brought in the FBI, who wired McCrory up and told him to get his conversations about this on tape. After recording four conversations, the prosecutor thought he had enough evidence to convict Davis of solicitation to murder. He indicted Davis, and tried him in a Houston court. The result was a hung jury.
Prosecutor Jack Strickland then decided to retry the case, this time in Fort Worth. The retrial started in the fall of 1979. Among other things, the prosecution produced photographs of the judge curled up in the trunk of a car with catsup spattered on his back to look like blood. He said that McCrory showed these photographs to Davis during one of their conversations in the car, as proof that he had actually hired the hit man who had killed the judge. Davis denied that he was ever shown those photos.
The trial had started its second month when I met that lawyer sitting next to me on the plane. Once I got the tapes, one of the first things I noticed was that Davis never initiated any of the topics about killing. It was always McCrory, and not explicitly at that. He proposed “doing” Priscilla, “doing” the judge, and “doing lots of people.” The meaning of the verb, “doing,” became a major dispute in the case.
Equally interesting were Davis’s responses to McCrory’s topics. He didn’t agree with them or say anything like, “That’s great news.” On the contrary, he said nothing at all, cleared his throat, coughed, or changed the subject to something else — far from enthusiastic agreement.
But the prosecution had already leaked its strongest evidence against Davis to the press. Newspapers printed the transcript of the last conversation in the case, which said:
McCrory: I got Judge Eidson dead for you.
Davis: Good
McCrory: I’ll get the rest of them for you. You want a bunch of people dead, right?
Davis: Alright, but—
McCrory: Help me too.
Davis: I got to have an alibi ready for Art when the subject comes up. So give me some advance warning.
McCrory: I will. I gotta go.
Even the defense agreed that this passage didn’t look good for Davis. But when I listened to the tape, I noticed its odd pacing, timing, and the intonation of Davis’s “good” and “alright.” I also thought the introduction of Art, who was McCrory’s boss, seemed oddly irrelevant. I wondered why it was necessary to have an alibi ready for Art if McCrory had already found the hit man who killed the judge. That part of McCrory’s alleged task should have been over by that time.
Sometimes it’s good for the expert witness not to be told all the facts of the case. It was only after I testified that I learned that Davis had asked McCrory to spy on the behavior of Priscilla and the judge, which is why Davis needed to have a good reason to explain to Art why McCrory was missing work.
When Racehorse Haynes finally finished my direct examination, I was surprised that he never got around to asking me about the difficult exchange (above), when McCrory talked about getting Priscilla, the judge and the bunch of people dead. He knew that I was primed to give my analysis of this passage and I understood that he considered it helpful. But he didn’t ask me a word about it.
I soon found out why. On my third day on the witness stand, it was the prosecutor’s turn to cross-examine me. One of the first questions he asked me was, “I noticed that in your testimony you said nothing about the passage talking about getting Judge Eidson and the others dead.” Relieved that I’d now get a chance to talk about this, I replied, “I’ve made a chart of this for the jury if you’d like to see it now.” As I brought out the chart I realized that Haynes deliberately had not asked me about it because he was setting a trap for the prosecutor to fall into. Now that I had said I had analyzed it, the prosecutor couldn’t say, “No, I don’t want to see it.”
I explained to the jury that this part of the conversation was rapid-fire and that sometimes the two men were talking at the same time. Even though the FBI had made a simultaneous videotape of this conversation from the back of an unmarked van across the parking lot, neither side had paid much attention to it because the sound quality of the audiotape was much clearer. The sound on the video track was weak but, when I listened to it, I found that it was adequate to use as a touchstone for the actions accompanying the speech of the much clearer audiotape. As it turned out, the video was crucial because it showed Davis getting out of the car and moving around it to the trunk where, as he said on tape, he was going to get his sunglasses.
In my discourse analysis of the tape I employed a standard topic-analysis, in which I noted who introduced each topic. The men had been talking about Art before the crucial passage started and it became clear to me that Davis continued that topic while he got out of the car to get his sunglasses. Meanwhile, McCrory used Davis’s distance from the mike to put the damaging words on tape.
I made a chart of the correct transcript of the passage for the jury to see. It had two columns, one for McCrory and the other for Davis, a technique I’ve found useful for juries so that they can visually distinguish who said what. I also added information about where the participants were located, based on the video evidence, and I used brackets to mark overlapped speech. The chart looked like this:
TOPIC: ART
Davis McCrory
I told him that, uh, to treat you
like any other employee and, uh,
so don’t give me too much
pressure in that regard. I can’t, uh,
say you’re gonna be gone a day
or two every week or so.
(Davis gets out of the car and walks to the trunk)
Well look, this fuckin’
murder business—
You better—
–is a tough son of a bitch.
–alright,—
Now you got me into this
[give me, into this goddamn deal]
[give me right?]
a little
[noti-, advanced notice, Now I got j-]
good (inaudible word)
I’ll get the rest of them dead
for you. You want a bunch
of people dead, right?
Alright but I
[uh, you know di-, di-]
Help me too,
[(inaudible word) okay]
I got to have an alibi ready for
Art when the—
Okay?
–when the subject comes
[up Alright]
(Davis comes back to the front door of the car)
so give me some advance notice,
I will.
–warning.
I gotta go.
(McCrory gets out of the car and leaves)
It was possible to hear most of Davis’s speech while he was getting his sunglasses out of the trunk because he was shouting so that McCrory could hear him. He was unlikely to be able to hear McCrory, however, since he maintained an almost normal tone of voice, even lowering it a bit to sound more sinister.
I asked the jury to read down the speech of each separate column along with me and I pointed out that we could see two different and separate simultaneous conversations about two different topics here. Davis continued the previous topic about Art while McCrory talked into his mike about murder while Davis was out of hearing range. Davis’s allegedly damaging words, “good,” and “alright,” were part of his own topic, not McCrory’s.
This passage was the only time that McCrory made any effort to clarify what he meant earlier by “doing Priscilla and the judge.” But while Davis was out of the car and continuing his own topic of Art, he was very unlikely to have heard it.
The jury apparently liked my analysis because they acquitted Davis on all the charges. My experience in this case traveled quickly through the law community and my phone began to ring, which is why in my earlier post I referred to that casual conversation with my airplane seatmate as a “right angle turn” in my career.