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.”
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.
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.