July 7, 2011

Racehorse Haynes

Many decades ago, when I was in high school, I came up with the idea that you should generally trust jury decisions to be right. It seemed like a good idea at the time. But, then I met Racehorse Haynes

When I was in college, I once had a part time job working for the top defense attorney in Houston, Richard "Racehorse" Haynes. (A reader writes to say he saw Racehorse, now in his mid-80s appearing in court yesterday.) He and a professor at Rice, Bill Martin, were planning on writing a book together, so my job was to synopsize all the newspapers articles in Racehorse's scrapbook. There was a lot of good material. For example, from a 2009 article by Mark Curriden in the ABA Journal:
There was a time when Richard “Race­horse” Haynes had his clients thank judges and juries at the end of their trials. But back-to-back cases in the 1970s changed his mind about that. 
First, a Texas jury had just found his client not guilty on all counts, when Haynes told the court his client had something to say. 
“Ladies and gentlemen, I want to thank each and every one of you,” the client stated. “And I promise you that I will never, ever do it again.” 
A few weeks later, another Haynes client was acquitted. Again, the defendant thanked the judge and jury, only to be interrupted by the judge. 
“Don’t thank me, you little turd,” the judge said. “You and I both know you’re guilty.”

His specialty was defending people who shot their cheating spouses or their spouses' lovers.
For instance, he’s represented three doz­en women in what he refers to as “Smith & Wesson divorces,” which are cases where the husband had been abusive, leading the wife to kill in self-defense. 
“I won all but two of those cases,” he says. “And I would have won them if my clients hadn’t kept reloading their gun and firing.”

The law in Texas didn't exactly have an exception that said you could shoot somebody if he had it coming, but most jurors in Texas in the 1950s-1970s felt that some people just deserved some shooting. And Racehorse was the grandmaster at coming up with technical rationales for jurors to use to acquit people who'd shot people whom the jurors felt had it coming.
Haynes has lived by the advice of his mentor, legendary Texas trial lawyer Percy Foreman: “If you can prove the victim abused a dog or a horse, you can convince the jury that the guy deserved to be killed.”  
“For some reason,” Haynes continues, “cats don’t apply.”

Racehorse's most famous advice for defense attorneys was that they don't need to prove anything, so they should keep their options open:
“Say you sue me because you say my dog bit you,” he told the audience. “Well, now this is my defense: My dog doesn’t bite. And second, in the alternative, my dog was tied up that night. And third, I don’t believe you really got bit.” 
His final defense, he said, would be: “I don’t have a dog.”

Speaking of jury selection, I read through many pages of notes Racehorse had made for himself during jury selections. Something I was struck by was that he often wrote down the number of pens and pencils a potential juror had in his shirt pocket. Racehorse explained that men who were ashamed of their blue collar jobs sometimes carried around a lot of pens and pencils in their pockets so that people would think they had white collar jobs, like engineers. Guys with too many pencils for their jobs were phonies and he didn't want phonies on his juries.

That struck me strongly at the time. I was surprised. Since Racehorse's fame rested on his getting obviously guilty people off, I had assumed that he would have, all else being equal, wanted phonies on his jury, so I was surprised by his phony juror aversion. Was I more cynical at 20 than Racehorse Haynes, the most notorious cynic in Texas, at 50? As Cecily says to Algernon in The Importance of Being Earnest: "I hope you have not been leading a double life, pretending to be wicked and being really good all the time. That would be hypocrisy." Perhaps the point is that to be really good at something, as Racehorse definitely was, you have to be a little bit earnest.

Racehorse could teach himself any field of science useful in the law. For example, he won 163 consecutive drunk driving cases from 1956-1968 because he knew more about the biochemistry of intoxication than anybody working for Harris County and could thus tie technicians in knots. Eventually, the government upped its game.

I once asked him about his victory in a lurid murder case that, according to the Houston newspapers, was the first time ever that DNA evidence was introduced in a murder trial. This was a pro bono case where Racehorse defended the guiltiest looking loser you ever saw. It wasn't clear to me from the scrapbook accounts that the cops ever had much probable cause for arresting this guy in this case or whether he was just brought in on a round-up-the-usual-perverts trawl of people who were likely guilty of something.

However, the prosecutors had a surprise: DNA evidence from hairs and so forth found at the scene of the crime were shown by geneticists at Texas A&M to belong to the witness.

So, Racehorse read up on DNA and reduced the expert witnesses to blithering wrecks. I said to Racehorse in 1979, "Gee, you really pointed out some weaknesses in DNA evidence."

He replied to the effect that the DNA analysis in this case was perfect. Yes, his client really had been at the scene of the crime -- but that was because the cops took him there when they arrested him. According to Racehorse, this was standard procedure. Sometimes a crime scene visit induced confessions.

It could certainly help make any subsequent false confession more accurate. Lots of people confess to major crimes, but often their confessions are self-evidently the product of someone who wasn't there. According to Bill James's new book Popular Crime, cops routinely withhold or even lie to the newspapers about some minor detail that only the Real Killer would know in order to throw out false confessors. On the other hand, if you are trying to pin the rap on some guy who is probably a menace to little girls, but might not have done this particular crime, well, then you want him to know all the details in case he gets into a mood to confess.

The funny thing was that there was no mention of the cops taking the accused to the crime scene in any of the reports on the trial. There were many column inches about Racehorse humiliating the DNA scientists, but, as far as I could tell, the part about the cops walking his defendant through the bushes never came up in court.

Maybe it never happened, maybe it couldn't be proved without putting the defendant on the stand. Or maybe Racehorse's view was that you don't burn the local cops and make them look bad. Making fools of out of town professors was fine, but you've got to live and work in Houston, so you don't burn the cops.

I don't know. But the general point is that in trials, there is often all sorts of extremely relevant evidence that the jury never hears about for all sorts of reasons. When you read true crime books about big trials, the amount of important facts that the jury never considered can be astonishing.

Other times, the jury hears about the relevant stuff, but then everybody sort of forgets about it.

Racehorse won a number of spectacular murder cases that were made into miniseries or TV movies, like 1981's Murder in Texas with Farrah Fawcett as the mistress of his client (Sam Elliott), a wealthy plastic surgeon whose horsewoman wife (Katharine Ross) mysteriously died. The dead lady's superrich dad was sure his no-good son-in-law had injected her with poisonous bacteria. Racehorse got a mistrial, but before a retrial could begin, a hit man killed the doctor at the door of his River Oaks home. The dead woman's father was implicated but never convicted of hiring the killer.

But Racehorse's ultimate Great White Defendant was T. Cullen Davis, a possible model for J.R. Ewing of Dallas. Cullen was white, extremely rich (said at the time to be the richest man ever tried for murder in America), and guilty as sin. And Racehorse defended him twice. (Dennis Franz played Racehorse in 1995's Texas Justice with Heather Locklear as Priscilla Davis and Peter Strauss as T. Cullen Davis.)

In 1976, Cullen snuck into his hilltop mansion on his 180 acre estate where his estranged wife Priscilla was living with her new boyfriend, waited for hours, and then shot both when they came home, killing the boyfriend and badly wounding the wife, who crawled off into the bushes and survived. Two teenage friends of the family were with them. Cullen shot the boy and the girl ran off down the hill in opposite directions. In terror, she told the first car she flagged down that Cullen was shooting everybody up at the mansion. Her boyfriend identified Cullen's picture when he came out of surgery.

Now, maybe you could say that the estranged wife and her boyfriend had it coming, and therefore be receptive to all of Racehorse's gyrations, such as his 13-day cross-examination of the wounded wife about her affairs and her Percodan addiction.

But ... there was another murder victim that I didn't mention. You see, Cullen's 12-year-old stepdaughter was at home. And when she stumbled upon him hiding in the house, the multimillionaire executive murdered his own 12-year-old stepdaughter rather than call off his plan to murder his wife.

That's about the evilest thing I've heard of.

Witness-murdering has been a pet peeve of mine for a long time, at least since the 1993 suburban Chicago Brown's Chicken massacre of 7 fast food workers because one or more of the workers recognized the robbers, but probably since I read about this case in Gary Cartwright's Blood Will Tell in 1979.

I think deterring witness murdering is the main justification for the death penalty. Say you carefully plan to shoot your wife, but a stranger sees you doing it, so you shoot him as well to to shut him up about whodunnit.

A general, widely-advertised policy of always going for the death penalty in cases of witness-murdering might deter a few witness-murders. (But I've seldom heard anybody else say anything like this, so the deterrent effect is probably minimal. For some reason, Americans don't really seem to think much about witness-murdering as something that ought to be deterred. It just doesn't come up much in arguments over the death penalty.)

But what Cullen did was far worse than that example. When his stepdaughter found him, he hadn't shot his wife yet. He could have bluffed his way out of the situation by claiming he was just there to get some of his things or whatever, and walked away. His breaking-and-entering would have hurt his position in the divorce trial. But he chose to pre-emptively murder his own stepdaughter.

But, the killing of the little girl, while it came up early in the trial, kind of got lost in all the hoopla about the wandering wife. The prosecutors got worked up over going mano-a-mano with the great Racehorse Haynes in defending the honor of the party girl wife and the whole trial became about the wife rather than about the dead little girl.

The jury acquitted Cullen.

The next year, Cullen was back in jail, this time on attempted murder charges. He had offered a man $25,000 to murder the judge in the Davis's still ongoing divorce trial. The man immediately went to the FBI, and the Feds talked the judge into climbing into the trunk of a car, closing his eyes, and getting ketchup poured all over him. The would-be hit man handed a photo of the ketchup-covered judge to Cullen in return for an envelope with $25,000 in it. The FBI recorded both video and audio of the exchange.

Racehorse spent about a full month of the trial raising technical quibbles about synchronization of video and audio. Then, however, he put Cullen on the stand, and Cullen admitted the videotape was completely accurate. See, Cullen said, somebody purporting to be from the FBI called me and asked me to put a sting over on the prosecution's chief witness by trying to entrap him by offering him $25,000 to kill my wife.

Now, many people assume that defense attorneys make up the crazy stories that their clients tell in court. But, my impression is that that doesn't happen much. Trust me, Racehorse Haynes, one of the great storytellers in Texas, could have come up with a better story than that.

After a hung jury in the first trial, on retrial, the jury acquitted Cullen again. 

42 comments:

dearieme said...

" ..going for the death penalty in cases of witness-murdering might deter a few witness-murders. (But I've seldom heard anybody else say anything like this": it was a favourite argument of my father's. He similarly argued that there should never be a death penalty for anything less than murder, except perhaps treason (which you might reasonably assume leads to death).

dearieme said...

'"I said to Racehorse in 1979, "Gee, you really pointed out some weaknesses in DNA evidence."'

Are you sure? DNA finger-printing was invented later than that - there's a chapter devoted to it in Jim Watson's book on DNA. After some rather pathetic pandering to American prejudices, Watson then criticises American courts for being slow to accept DNA finger-printing evidence, and generalises to "..it may be hard to appreciate how hard it was for the American legal system to swallow DNA." Has he overlooked your Houston case (albeit that it must have been pre-finger-printing)?

Brett Stevens said...

Juries and voters are both comprised of people who are told to react to something.

Their mode of thought is to put themselves into the position of victim.

If you transfer that victim-identification from the actual victim to the "innocent" killer, they seem to give it up rapidly.

The OJ Simpson case comes to mind. Unlike Casey Anthony's case, the evidence was good on OJ. Yet it was too politicized to touch, so he walked (to dubious benefit).

Gc said...

"Since Racehorse's fame rested on his getting obviously guilty people off, I had assumed that he would have, all else being equal, wanted phonies on his jury, so I was surprised by his phony juror aversion."

If his tactics was to manipulate the jury to not to care about the law, he didn`t wan`t people in the jury who have an urge to prove their intelligence.

Chicago said...

Sounds as if the lawyers are even more sociopathic than their customers. The judges can't be any great shakes either, seeing as the two professions people least trust are politicians and lawyers, and judges are usually a combination of both.

Anonymous said...

OT:

Hey Steve, your suggestion for quick rebuilding time came true in Sweden:

PowerPoint ban: Swiss political party wants to outlaw the software

jd said...

"A general, widely-advertised policy of always going for the death penalty in cases of witness-murdering might deter a few witness-murders.'

Actually, there have been arguments that the death penalty encourages witness murdering because if a criminal is going to face execution for one murder, they have strong incentive to kill those who saw it. (I'm still for the death penalty regardless).

rightsaidfred said...

America likes to think defendants are innocent the way we think immigrants are hard working, and minorities are oppressed and will rise up and succeed if we just get the boot off their neck.

In reality, not so much, but the importance of myth is pretty profound.

Dahlia said...

Fascinating. You've talked about Haynes before, but I can't get enough of this stuff.

Defenders have a financial motive so they're almost always a step ahead of the prosecutor in psy-ops and intelligence. Lose too many cases and he goes down a pay grade, but is up against greener, less willing or able, prosecutors.

Ignore the media: there is nothing wrong with questioning this outcome and trying to learn from it in order to even out the scales more in favor of justice for the victims. When a juror thinks an obvious murderess was a good mom, something went horribly wrong.

Anonymous said...

whoa Steve, did you really work for a guy like this?

Everyday you write one or two interesting articles and this is the first time I've read about Racehorse Haynes?

Looking forward to showing my girlfriend your article, reads like fiction.

ben tillman said...

One of Cullen's sons is a friend of mine. Surprisingly, he's a really nice guy and was pretty easygoing about his own divorce.

Shawn said...

Interesting read.

I'll add that Davis not only allegedly tried to hire a hit man to murder the judge, but also to murder Priscilla, the estranged wife.

Nanonymous said...

Yes, DNA evidence from collected hair in 1979 sounds a bit off. Restriction polymorphism as an analytical method dates to the late 1970s but that was before PCR and I doubt hairs would yield enough DNA to run anything RFLP-like.

Leonard said...

For some reason, Americans don't really seem to think much about witness-murdering as something that ought to be deterred. It just doesn't come up much in arguments over the death penalty.

Of course witness-murdering is deterred: it's murder after all. But yeah: what you're saying is Americans don't prioritize deterring witness murdering above and beyond vanilla murder.

Seems to me a part of the reason is that sort of economical thinking is beyond most people. People don't think in terms of homo economicus; they think in terms of received morality and our innate sense of justice. Eye for an eye.

But beyond that, even for those who are receptive to the economical analysis of justice, I don't think for our particular circumstance reserving death for witness murdering is a good idea. Only a few murderers will be deterred by it: they need to be coldly rational enough to weigh the expected consequences of various crime-plans, but not so rational that they don't engage in crime to begin with.

Reserving the death penalty for witness-murder is thus a tradeoff between deterring all murderers somewhat more (the delta between their preference for life in prison vs death), and a small class of murderers somewhat more. Personally, I think that in a society full of low-IQ low-impulse control murderers, we should focus on deterring them the most. This is going to cost us some murdered witnesses at the margin, but that's a trade that's worth culling some bad genes and bad apples from the main herd.

Anonymous said...

I remember vividly a single
element from an interview Dick Cavette did with Haynes. Asked if there were problems defending a client in criminal court that he knew was guilty, Haynes simply responded that what was relevant was the evidence to be set forth by the State and that he, Haynes, always merely asked his defendant: "Please advise me of what evidence or testimony you think might be set forth by the State." The floridly pedestrian lawyers that make up the greater part of the local attorneys where I live who are taking a lot of criminal defense business are still asking their clients, as they day when they first started practicing law: "Tell me exactly what happened" I have distant distant social contact with two professional cons who will not say another word to such a "lawyer" whenever they are facing a prelim hearing. The $alient thing about the American $ystem of Ju$tice is that it takes care of its own.

Kylie said...

"Many decades ago, when I was in high school, I came up with the idea that you should generally trust jury decisions to be right. It seemed like a good idea at the time. But, then I met Racehorse Haynes."

My epiphany was less spectacular. Many decades ago, when I was in high school, I came up with the idea that you should generally trust jury decisions to be right. It seemed like a good idea at the time. But, then I researched the National Forensic League's policy debate topic for 1971-72: Resolved: That the jury system in the United States should be significantly changed.

I saw an interview with Racehorse Haynes. In a universe composed soley of circles, that man could find an angle. A nimble, not to say devious, intelligence.

As for the high-profile case you mentioned without using names, I instantly recognized one of my favorite true crime stories, the murders of Joan Robinson Hill and, subsequently, her husband, Dr. John Hill. The book on this case, Blood and Money by Tommy Thompson is just riveting. The twists and turns of this murder mystery could only happen in Texas. Or maybe I'm saying that because I juse finished another riveting murder mystery that happened in Texas, the Joy Aylor case. In both cases, there's little doubt about the killer's identity, it's the web of deceit that stretches out over all strata of society and covers an amazing range of colorful characters that's so fascinating.

Not My Peers said...

I've also heard that cases are won or lost at the jury selection/Voir Dire step - the rest is theatrics.

Knew of a psychologist who wrote one of the top legal textbooks on profiling jury candidates. He traveled all over the country consulting lawyers.

This is a niche industry from both the psychology and legal viewpoints

slumber_j said...

HBD angle on Texas Justice: Locklear is part Lumbee.

alonzo portfolio said...

I echo Diarieme. Steve, I played on an all-prosecutor softball team (I was the ringer) in 1984 in a county famous for its aggressive LE, and I never heard a single mention of DNA by anyone. I think you'd have to get to at least 1988 before it was ever used in a criminal prosecution.

ben tillman said...

Hey Steve, your suggestion for quick rebuilding time came true in Sweden:

PowerPoint ban: Swiss political party wants to outlaw the software


Sweden?

Anonymous said...

The part where you prove some other system is better must have got cut off.

Please add it back in the edit.

Anonymous said...

"When I was in college, I once had a part time job working for the top defense attorney in Houston, Richard "Racehorse" Haynes."

Why did you work for such an evil sleazebag. Suppose Matthew Yglesias had worked for some lawyer who got a whole bunch of black or illegal murderers off the hook for killing innocent people.
I hope you finally had had enough and spat in Haynes's eye.

Reg C├Žsar said...

So, why was he "Racehorse"? Was this some kind of urinary reference?

Anonymous said...

“For some reason,” Haynes continues, “cats don’t apply.”

Because cats all have it coming.

Svigor

Anonymous said...

Classic MacGrub.... Errr Sailer

People should be ashamed if they're not donating some cash a least once a year to this site

Dan in DC

Anonymous said...

Exclusion of phonies with too many pencils makes sense if Haynes was trying to assemble a jury that resembled "cowboy values" texans shooting the shit during a break between brandings, at the diner, or what have you. Haynes would project, largely naturally, an internalization of the culture and values that, being recognized, would admit him into the confidence of the circle, and from there it would simply be a matter of persuading the jury (however unreasonably) that folksy common sense required a favorable verdict.

When several "cowboy values" Texans scratch their heads over a complicated mess, it's easy to imagine the group siezing on a common sense angle as a way out, especially if suggested by a leadership personality within the group. An insecure phony might have ego issues which could upset the group bond (based on unassuming personalities and shared values), Haynes leadership of the group, and (by setting an example of independent thought) the presumption of "group-think with a common sense angle".

Anonymous said...

Lawyers are unbelievable. They can cause you to reasonably doubt gravity.

ben tillman said...

So, why was he "Racehorse"? Was this some kind of urinary reference?

It's from his high school football coach. As a ball carrier, he used to race out of bounds instead of taking contact downfield.

jody said...

interesting stuff.

Anonymous said...

Great read. I owe Haynes the biggest win of my career, involving a prisoner's failed escape attempt. I told Haynes the story. He told me I couldn't lose. He was right. The jury awarded millions to a man who stabbed a guard trying to escape from prison. I sued the guards for slapping the prisoner around after he surrendered.

Karen said...

I was a kid in a small town near Dallas when the Davis trials were the highlights of the local news. Those trials inspired lots of us, me included, to go to law school so we could bag our own T. Cullen Davis. I grew up, became a lawyer in a highly technical and completely non-sexy field of regulatory law, but I did meet one of Haynes' former associates. Said associate claimed that Davis looked like such an idiot that the jury didn't believe he was smart enough to carry out the murders. Also, Davis lost virtually all of his money and disappeared from public life. "The mills of the gods grind slowly . . . "

poultry inspector said...

Cullen Davis is related to three of the greatest American inventors: Samuel Morse, Eli Whitney and Charles Goodyear.

Johnny Caustic said...

"His own stepdaughter" is an oxymoron. From Cullen's point of view, killing her was probably a bonus.

Mac said...

Steve is right on about capital punishment and witness-killing. The Brit journalist Peter Hitchens covers this in his book A Brief History of Crime. Before the UK fired the hangmen for good in the 1960s, there was a period of time c. 1947 or '48 where executions were suspended due to opposition to the practice. During this period, witness murders and robberies that turned into killings increased.
Hitchens also speaks often of the USA since we still conduct executions. In the 1960s, it's estimated 90% of murders here in the states were so-called crimes of passion. Since the 1970s, when the Supreme Court temporarily halted executions and many states have since scrapped the penalty or made it an infrequent punishment, murders that were crimes of passion have fallen to 70%,, indicating that "stranger murders" and killings committed in the course of other crimes have increased.

Steve Sailer said...

Homicide cases are typically harder to get the right verdict than, say, assault and battery cases because the chief witness -- the victim -- isn't around to testify.

Anonymous said...

When I was a kid, late 70's, Houston, Haynes was interviewed on one of those morning shows that did the dialing for dollars promotions. Anyway, the inept reporter stupidly asked Haynes questions that the reporter clearly could not handle the answers for. Haynes was a clearly cocky bastard who seemed to be enjoying himself. The two questions I remember:

1) Where did you get the nickname "Racehorse"?

ans: I played the running back position on my school football team and was a fast runner.

follow up: You were really that fast?

ans: yeah, for a white boy.

reporter looks at his own feet and mumbles

2) Some say that many of your clients were guilty, what do you say?

ans: Yeah, they were guilty. Why do you think they were willing to give me everything they had to get off?

reporter befuddled for rest of interview.

I was probably 11-12 at the time but I still remember the body language and demeanor of the pathetic reporter dude and Haynes bold yet almost bored confidence dealing with such a fool and an amateur.

Felix M said...

"Many decades ago, when I was in high school, I came up with the idea that you should generally trust jury decisions to be right. It seemed like a good idea at the time. But, then I met Racehorse Haynes."

I suggest the conclusion is generally right when you have two "pedestrian" attorneys who confine themselves to arguing the facts.

Anonymous said...

"rightsaidfred said...

America likes to think defendants are innocent the way we think immigrants are hard working, and minorities are oppressed and will rise up and succeed if we just get the boot off their neck.

In reality, not so much, but the importance of myth is pretty profound.

7/7/11 6:02 AM "

That is funny, because compared to a bunch of whiny native-born Americans who believe that they ought to be entitled to a certain standard of living simply because they were born here, immigrants actually have to work really hard to get somewhere. In fact, as a business owner, I would rather prefer to hire hardworking immigrants over whiny Americans who always shirk work and then give me lips about it. Lazy employees with too many attitude problems and who expects to be overpaid for their labor does not a good employee make. That is why all the lower-IQ white cannot compete and will constantly whine about immigration.

Anonymous said...

"Anonymous said...

"When I was in college, I once had a part time job working for the top defense attorney in Houston, Richard "Racehorse" Haynes."

Why did you work for such an evil sleazebag. Suppose Matthew Yglesias had worked for some lawyer who got a whole bunch of black or illegal murderers off the hook for killing innocent people.
I hope you finally had had enough and spat in Haynes's eye."

Yeah, but you see, they were all white. So it was all good. Get with the program please.

Anonymous said...

"That is why all the lower-IQ white cannot compete and will constantly whine about immigration."

Lower IQ whites aren't the ones complaining about immigration. No one is going to make a living wage working for a hardscrabble immigrant like yourself so they, dumb as they are, go into the fields that are hiring.

Higher IQ whites are the ones worrying about the cost of infrastructure and language instruction. Smarter whites are also weighing the worth of the immigrant population vs the demands newcomers make on America. Intelligent whites are also concerned about whether or not immigrants are loyal to our form of government.

Lower IQ whites are too busy making ends meet at jobs that pay much more than you can. I would bet those taxes you supposedly pay in excess to the rest of the population aren't all that significant either.

Anonymous said...

You've actually written a story where a hit man proves to be the more honorable man than the lawyer. I've known for a long time that lawyers are parasites who produce nothing while sucking
away the resources of actual working people. But forget comparing them to toilet scrubbers or other honest workers. I now actually have a higher respect for hired killers than lawyers. It never occurred to you that voluntarily associating with such a man was in and of itself dubious?

Anonymous said...

"2) Some say that many of your clients were guilty, what do you say?

ans: Yeah, they were guilty. Why do you think they were willing to give me everything they had to get off?"

It sounds like something that someone with the mentality of a prostitute would say. Either that or the words of a man who was resigned to spending eternity in whatever his conception of hell happened to be.