SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:31

Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. This is Beat the Prosecution. We have a great guest today. His name is Eric Davis. How did I meet him? Well, first of all, Eric Davis is a decades-long criminal defense lawyer. Where did I meet him? About two or three weeks ago at the NACDL conference in Baltimore, National Association of Crimin Defense Laws. What did I miss? I missed his talk. I got there later in the day. But I still met him, and he told me that he had been to the trialors college. And I think he's still on their board. He'll tell you. I went to the trial as college in 1995. He went there a few years later, at least. And we also bumped into another uh trialures college graduate, uh Lovell Tokic. So there were three trialures college people there. And the highlight for me of what I saw, since I missed Eric, was uh my uh my cross-examination uh master, uh Larry Posner, who's been here before, and he is fantastic. And I said to Larry, he's he's so modest. I said, uh Larry, on on the day before he gave his talk, uh, am I gonna learn some things new when you give your full-day presentation on Saturday? Because I'm gonna be taking time away from my family. He said a few new things. I learned a lot of new things, but today's not about Larry, it's about Eric. Eric, please introduce yourself.

SPEAKER_00 2:01

Oh, thank you for for uh your brief introduction as well. But but my name is Eric Davis. I've been uh practicing now for 32 years, um, uh, been a lawyer for 32 years. I've probably done defense maybe 26 of those years, um, 27 or 28 years or so. I've been doing defense work. Um I my last 15 years I've spent working at the Harris County Public Defender's Office, which is in Houston, Texas. Um I uh started as an assistant public defender, then became felony trial division chief, and then uh became the trial bureau chief where I supervised the felony and misdemeanor divisions um there. And uh I still had the opportunity, the blessing to still try cases uh regularly uh and and uh enjoy trying cases. I I probably have tried, I know I've tried more than a hundred, but I would guess probably about 150, 160, somewhere around there is how many cases I've actually tried. Um I tried maybe 20 plus homicide cases before joining the public defender's office. I did federal uh criminal defense, and I probably tried about 15 um federal cases um to verdict uh as well. And so I've had the opportunity to try a lot of cases and help a lot of people. And yes, I am on uh the staff at the trial lawyers college, and I'm currently on the board of directors. Um, I think my term may be coming up uh on the board of directors, and I'll be cycling off the board. Um, but yes, I've served on the board of directors for the trial lawyers college and the board of directors for the National Association of Criminal Defense Lawyers. I'm still currently on their board as well.

SPEAKER_02 3:44

Where are you working and do you have a website? And what is that web address?

SPEAKER_00 3:49

So I have just recently left the Harris County Public Defender's Office in April. Um I left, and uh I'm I'm in the process of starting a practice. My wife and I moved uh to to Silver Spring, Maryland. Um, I got barred in the District of Columbia, and I'm in the process, uh at least I've I've been at uh my application for uh the federal um district court in Maryland has been approved, and I'm gonna get sworn in, I think, July 10th. Um and so I am I do not have a website at this time. I'm still in the process of trying to get one developed. I'm I'm looking at different web uh designers. Uh and uh, you know, I I've got my office number is 713-227-2727. My email is eric.davis at gmx.us. Um, I and like I said, I've tried a lot of federal fraud cases and I'm looking to help people in those kinds of cases. If you're a lawyer and you've got a large case and you need some help, I'm more than happy to help you. Um I've successfully defended um federal fraud cases. Um in other words, I've gotten acquittals in uh multi-count federal fraud cases on multiple occasions, and I've also gotten acquittals in multiple homicide cases as well.

SPEAKER_02 5:05

Excellent. I'm gonna ask you about your prosecutorial experience. Before we do that, I'll say that the closest I ever came to being a prosecutor or a cop was I was an internal financial auditor at a major Wall Street bank during the year before uh law school. And uh one day I found out some discrepancy about some uh financial transactions. This is the closest I ever came to financial fraud there. And I contacted one of the vice presidents in our division, and uh I won't say the person's name, but he said it in such a New York way. He said the name, yeah, we got that guy already. He said, Okay, I'm doing the New York accent after all. Uh he's already been prosecuted. Uh there was that, plus the day uh about a few weeks before I started law school, I came back from lunch, and I think uh this was at one of the uh central Manhattan branches, and one of the newer uh auditors said, the bank just got robbed when you were gone. And since I was the most senior person there, I'd been with the bank for 12 months. I got to deal with the FBI, which wasn't much more than seeing them dust for fingerprints because they didn't have any of those windows separated from the tellers and count the teller's drawer of the person who was robbed from. So that was about the closest that I could have stomached with doing prosecution. So I w before we do that, did you go to Howard Law School?

SPEAKER_00 6:28

So I went to Howard for undergrad, and then I went to Tulane for law school. But I went to Howard, I'm a Howard grad, uh Bison. Um, but I graduated from undergrad in 1991 and then went to Tulane Law School immediately after graduation and graduated from Tulane in 1994. Graduated from both places with honors, um, Howard with honors and then Tulane Law School with honors.

SPEAKER_02 6:51

Got it. Okay, so when you were in at Howard, I was already uh in the DC area, we just didn't bump into each other. And after you left law school, where did you go?

SPEAKER_00 7:00

Oh, I took a job as a prosecutor. My first job out of uh out of law school was as a prosecutor in Florida. I was in North Florida in Jacksonville, and I was a prosecutor there for about three years and then moved to Texas. And because I hadn't been licensed five years, I had to take the Texas bar, took the bar past it, and uh while I was studying for the bar exam, I got offered a job with a corporation and worked um with a corporation, but just missed the courtroom and missed working and helping people. And so I'd uh while working there, I did some CLEs and sort of prepared myself to start a practice. And so I started a criminal defense practice and also did some civil rights cases, uh, some employment discrimination cases and labor and employment law cases as well.

SPEAKER_02 7:45

You sound like a true believer in criminal defense, and if that's so, what made you become a prosecutor? Was it practicality? What was it? And what made you stay for three years?

SPEAKER_00 7:56

Well, it it was it was interesting, right? My my view of it was uh I wanted to impact the criminal legal system. I looked back and found my old law school um application and my personal statement in it was saying that I wanted to go to law school to become a public defender. That was that's what I said in my personal statement way back when, um, before you know I they ever got their hooks in me. And uh and so when when I got to law school, I I did some some uh work with big firms because that's kind of where they pushed us. They pushed us towards working in big firms. And uh and I didn't like it. I didn't like it at all. I wasn't I wasn't enamored by it at all. And so one summer I did some work with a prisoner, prisoner legal organization, an organization that advocated for prisoner rights, um, and and I I saw the criminal legal system and I said, man, I I I gotta do something to try to help in the criminal legal system. So I looked for different jobs, explored different jobs, and the idea that I had was that if I went to work for a prosecutor's office, I mean prosecutors, the person who holds the most power in the criminal legal system is the prosecutor. Is the prosecutor, hands down, district attorney, because they decide who gets charged. They decide um what to do, what to recommend, um, how to approach those cases. The power to dismiss cases and the power not to pursue charges is an immense power, right? Um, you know, when you go to trial, the prosecutor decides who goes to trial, really. Because they can work out cases, make deals, um, dismiss cases if they didn't want to try them. And so I thought that was immense power and immense opportunity really to impact the criminal legal system positively, right? Some young kid who's in the criminal legal system who shouldn't be there, the prosecutor has the power to maybe save that person's career and and have a profound impact on a person's life. And so I viewed it like that. It's an opportunity to uh to function in the criminal legal system. And as an African American, I had relatives who were were prosecuted, relatives who went to prison. Um I you know, I had had had people I knew who were impacted negatively by the criminal legal system. And uh and so I thought a good way to positively impact the criminal legal system at that time was to become a prosecutor, to become a prosecutor. So that's why I went to law school.

SPEAKER_02 10:12

Okay, I've heard that uh explanation before for becoming a prosecutor before doing criminal defense, but isn't it true that that only works to a point if you're actually given the discretion by your supervisors and the head of your office to do that? And then what happens about when you're told to do things you're uncomfortable with, like uh seeking uh uh detention pending trial or mandatory detention pending trial or mandatory minimum uh convictions or seeking convictions that are gonna destroy a person's security clearance or immigration status?

SPEAKER_00 10:47

Well, those are all things that are true. Uh I mean, I think uh in in every office, uh the higher up you get in the office, you'll realize uh that you know you don't have as much discretion. I mean, and I think that's that's true for prosecutors. Uh you you you will have some. You have some. You'll be able to make decisions, the right decisions in different places, because you're going to have some discretion. And uh, and there'll be some people who are trusted with discretion who shouldn't be trusted with discretion, and you see that. You see uh you see prosecutors who are doing things that they shouldn't do. Um, you see there's some good prosecutors. There's some prosecutors that actually do right and uh respect the power that they have. Um but at the end of the day, yeah, offices are gonna have policies that you may not necessarily agree with, and you're gonna be butted up against, you know, how do you try to change a policy? Do you have the courage to try to change the policy within an office? Some prosecutors do. Um they see an issue, a problem, and they lobby to try to change those policies. And sometimes that happens. Um, some well-being and conscientious policy prosecutors, even in the most conservative of offices, um, can influence an impact policy. But at the end of the day, um they'll have to yield because offices will have policies, and if you disagree with some of those policies and not willing to change them, you'll either have to yield your values um to those policies or leave and do something different. Leave and do something different. I ran into that um and I didn't like it, um, but I ran into it. Um in essence, uh, you know, I navigated it some. Um I I frequently was very fortunate uh to be put in, I was in a very progressive office. Um the the boss we had was uh the the the the chief, the head prosecutor, um the head of the office was a former public defender. He was a public defender and actually was high up in the in the PD's office. And so he was fairly progressive and had fairly progressive policies and was willing to listen and trying to implement policies, you know. And so the senior people in the office were actually pretty good too, and they were progressive. A lot of them were, some of them weren't, but a lot of them were very progressive as well. So it was a good office to land in, and it was something that it was a reason why I wanted to go to that place, was because uh the the head of the office was someone that was progressive.

SPEAKER_02 13:02

I'm not gonna stay on prosecution the whole time, but see, I have some questions that I didn't ask previous prosecutors who were on the show. So I want to ask you this: how did you feel about dealing with cops where you weren't sure they were telling the truth or just dealing with the the facts that uh that the law says that for search warrants, the the uh uh judge usually uh looks uh or the judicial officer usually just looks at the four corners, the application for the search warrant, even if there's lies in that search warrant application and and dealing with civilian witnesses who aren't telling the truth. But of course, in in the civil field, you know, when you're doing civil litigation, that can be the same problem, right? Having having lying clients whose uh whose cases might destroy someone financially. Uh but how would you deal with that?

SPEAKER_00 13:49

So the office I was in was unique, right? Because they had more direct file. So what would happen, and this is this is another reason. This I'm not trying to run from that question, um, but but the office I was in, uh, the prosecutors filed cases and pursued the cases they filed. So, unlike a lot of jurisdictions, Florida does not require uh you to prosecute a felony by grand jury indictment, right? In Texas, all felony cases have to go through a grand jury, and all felony cases are are subject to being indicted. Um, right? Um in Florida, you can prosecute a felony by information. All felony cases, with the exception of capital murder, can be prosecuted by information. So you don't need a grand jury. So what happens in those cases is that the police officers, the office that I was in, police officers would come in when they were ready to file charges. You could have a time when you're on intake, and when you're on intake, you're there meeting with police officers who made the arrest, because that person's gonna come in with their file, or a detective who's making an arrest, they're gonna come in with their file, with the information. They're gonna give it to you. You'll have an opportunity to interview them, to talk to them, to ask them questions, um, to scrutinize what you want to scrutinize, and then you make a decision as to whether or not you're gonna file the charge. You got three choices. One, you can do what we call a DN, and that is decide not to prosecute the case and dismiss it, dismiss it before it ever hits the courtroom. That's the first choice. Second choice you have is that you can even maybe look at it and say, look, I think you got this guy charged wrong, and then do what we what they call back then a TCC, a transfer of the county court and charge a misdemeanor or charge something totally different than what the police bring in. And third, you can charge what the police said, or maybe even additional charges, right? So so you you had uh discretion in the charge. And I didn't have to ask the supervisor for that. I I didn't have to ask a supervisor what once I got to a certain level. I didn't have to ask the supervisor, what do you think I should charge with this, blah, blah, blah. Should I do this? I was able to do all of those things. Um now, ultimately, you know, things were signed off on by a supervisor. It may hit the supervisor's desk and they they signed off on it. Um but at some point, when you know your supervisor, you know, mostly I I never really had a lot of those decisions come back questioned. So, you know, we could file uh certain things and we could decide not to file certain things. That was the way that was. Um I I will say this when I knew there was an officer who did not have the reputation of being very credible, uh, if that were the situation, he would get referred um even uh to an internal division. We had an internal division that prosecuted police officers. So if there was something that was questionable, we were supposed to refer them over to him. And some of the prosecutors that were there were very aggressive in terms of their pursuit of police officers and would actually charge officers in cases. Uh but so it was a different, it was a different kind of office, though. It was a different office. Like I said, that the the head of the office was a former PD and had a different approach to things. Um but if there was an officer who I didn't believe, I thought something was questionable, I didn't have to bring the case. And we wouldn't bring cases in those situations.

SPEAKER_02 16:53

What was the name of this prosecutor's office?

SPEAKER_00 16:56

It was Harry Shortstein was the was the prosecutor who who I'm referring to, a guy named Harry Shawstein. I don't know if Harry's still alive, but Harry Shawstein, um, and it was a the uh fourth judicial district uh of Florida. It was the state attorney's office of the fourth judicial district of Florida. I think now they've done the same thing. They they went they went back and forth. Um I think they've elected a progressive. Last I saw, they had elected a progressive prosecutor again, somebody who had done defense work and was a defense lawyer, is now in the prosecutor's office, and she's done some things as well to change as well. Before her, there was someone who's really conservative, right? Real conservative, and then it switched and it's going back to being somebody really progressive, and there's somebody that's real progressive in that office.

SPEAKER_02 17:39

Where do you grow up, Eric?

SPEAKER_00 17:41

I grew up in New Orleans, Louisiana. I grew up in the Lower Ninth Ward of New Orleans, Louisiana. People heard about the Lower Ninth War because of Katrina. It was an area that was destroyed, devastated by Katrina, a poor community um there. And then when I was in high school, my parents moved to New Orleans East, uh, New Orleans.

SPEAKER_02 17:59

Got it. So um you became a public defender in what year?

SPEAKER_00 18:04

I became a public defender in 2011.

SPEAKER_02 18:07

And that was in Harris County?

SPEAKER_00 18:08

In Harris County. Um Harris County was the largest county in America that did not have a public defender's office. And so I I had an opportunity. I I I had what I thought was a fairly successful criminal defense practice. I had been in the news uh on a bunch of different cases. Um I had had uh some good verdicts, and I was getting some good looks because I had just come off of winning two successive uh federal fraud cases, as I mentioned um before. Two of two Medicare fraud cases, one two in a row, at least two of my clients got acquitted um in a row. And so I was starting to get good looks, meaning people were starting to hire me on some good cases, and uh and they were starting the PD's office, and uh I always complained about indigent defense in the county. I'd always complained about it, how it wasn't good, and how there were bad lawyers. And uh my wife was like, This is your opportunity to put your money where your mouth is. Uh, to make a long story short, uh, I ended up uh going to that office. They hired me and they hired my whole staff. They hired the lawyers working with me, and they hired uh my secretary as well. So they hired my whole staff to go and work at the PDE's office. And uh and I was there all the way up until April of this year.

SPEAKER_02 19:14

Got it. So um I've read that uh have you been involved? What okay, what year did you go to the trial lawyers college and what made you go there?

SPEAKER_00 19:24

I went to the trial lawyers college in 19, I'm sorry, in 2005. I was in a class of 2005, and what made me go there right before going or doing anything associated with the trial lawyers college, I had uh lost uh a trial. Um I was representing a single mother, and um, and she was a nice lady, sweet lady, and really cared for her kids. She was all her kids had. Um, and um, we went to trial on a case and we had a judge whose neck was burning red, just a redneck judge. And yeah, she was accused of uh, she was a black woman, and she was accused of harming a white woman, um, somewhat of a socialite um woman, um, and the lady had alleged brain damage and so forth. Um, and we tried that case, and the jury was hung uh initially six to six. Uh you know, six to six, they were hung six to six split. And they sent the note out to the judge, and the judge told him keep deliberating, and and they kept deliberating and sent out a note saying they were still hung six to six, and uh, you know, hopelessly deadlocked. And so he sent out a note, keep deliberating, basically, you know, and they came back the next day and they were seven to five. And then we didn't know which way the split was. They were seven to five, and then they then he sent them back to come back, and so they bought him back another day, and then they came back and said they were seven to five in favor of guilty, and then he uh he had them come back another day, and uh after that they came back the and they were 11 to 1 in favor of guilty, 11-1 in favor of guilty, and so he bought them back another day, and it was like he I think they deliberated four or five days, something like that. It was ridiculous, and then they ultimately found her guilty. And uh, when they found her guilty, you know, the prosecutor and I worked out an arrangement for her to do probation as a sentence. And uh, and in Texas, the judge can add conditions of probation, and uh, and he added uh jail time as a condition of probation. And the single mother who had nobody really to take care of her kids um was going to jail as a condition of probation. You ought to imprison immediately, you know, um, immediately. And uh, and and I I felt so hurt by that, and so the the unfairness of it all, the whole way it all worked, because we were objecting and fighting all along, and the judge is just, you know, steering this thing, right? And um, and the unfairness of it all, her going to jail, um, just just just kind of broke me. So, me out grown man. I was a grown man on the courthouse steps crying. I mean, I literally cried. I mean, not just you know, uh crying in terms of I was crying little literal tears, real tears, on the courthouse, and I saw her family members. And I just told him, I said, I can't do this anymore. I can't do this anymore. I've got to do something different. And at that point, I had tried a bunch of cases too as a defense lawyer. And I I used to keep score. I don't keep score anymore, but I used to keep score on how many cases I won, the percentage of cases I had won. And I think at that point I was like, you know, I was I'd won a lot of cases. And uh, but this just just hit me. And I I I felt uh like, you know, like I wasn't equipped really to fight the judge, and I wasn't equipped to deal with this situation, and I just wanted to do something different. The hurt was so hard. And a family member, I never forgot what a family member told me. They told me, said Mr. Davis, we see you. We saw you in that fight, and we saw the passion you had. Said, don't, don't quit, Mr. Davis. Get better. Don't quit. Get better.

SPEAKER_02 22:44

Yeah, better.

SPEAKER_00 22:46

Yes, that's what her family members told me. It was actually her cousin who told me to get better. Don't quit, Mr. Davis. Get better. And uh and that resonated with me. That's what I needed to hear at the time. And so I started looking for different programs. Um I think a guy named Tyrone Moncrief, who's a lawyer in Houston, recommended uh the Trial Lawyers College. And I saw some stuff online. And I went to a course in California, uh, was my first experience with the trial lawyers college. I was out in California at a regional, and uh and I had that experience, and I realized I was in a place where I talked to a lot of like-minded people. Um lot of like-minded people, and I felt like I was in a community around a bunch of like-minded people. And uh so I went to the Trial Lawyers College in 05 and and graduated from the college, and then went on staff uh immediately. I was asked to go uh ask about uh, would I be interested in staff at the trial lawyers college while I was there, um, and then got the invite to come on staff. And so I went on staff the very next um next May. I went to staff training and started working on staff.

SPEAKER_02 23:52

When you went to the trial orders college, were you still in private practice?

SPEAKER_00 23:56

I was in private practice when I went to the trial lawyers college. I had a practice where I did criminal defense and I did um um some um uh civil rights work and uh mostly employment discrimination when I went to this devotion because wasn't the trial law's college three weeks when you went, at least when I went for four weeks, I was a public defender lawyer, so I wasn't running my own office that I had to be away from. It was three weeks when I went. It was three weeks when I went, maybe a little bit, a couple of days more than three weeks, but you know, it was around 20-something days, 24 days, I think the trial lawyers college was back then. And uh, and and it was it was a sacrifice in terms of my practice. It was certainly a sacrifice while I was there. Um, people would call, and I think my secretary told one or two of them that I was out of town, won't be able to be back, and they filed summary judgment motions on me while I was there. Low down, right? Find out he's out of town, file summary judgment motions. So I had to respond to some summary judgment motions like immediately when I got back. Um, you know, there was something. But it was cool. It was good. I learned so much. When I got back from the trial lawyers college, I had an exoneration. I represented a guy, I think we got an exoneration in his case, and uh a bunch of things started happening. A bunch of positive things happened in my practice. I got an acquittal in the homicide case. Um I think when I when I got back from the trial lawyers college, things started popping with my practice. And uh that was it was a great experience for me in terms of my practice. It it it solidified some things. I think the one thing I can say from the trial lawyers college is that I became free. I became free. My trial of cases, how I tried cases, I was freer in the courtroom. I was free to be myself when I tried cases. Um, and I was free to do whatever I thought it took within ethical bounds and within within the rules, of course, um to help my clients.

SPEAKER_02 25:44

So you tried a bunch of cases before going to the trial or as college. Before going to the trial or as college, how and where did you learn how to try cases and persuade in court? And what have you used uh up to now uh beyond the trial or as college to integrate uh persuasive ideas, including ideas from Larry Posner, any NACDL and anything else?

SPEAKER_00 26:07

So I I'll tell you, I learned a lot about trying cases by trying them, right? When I was a prosecutor, that office had a lot of training on training lawyers how to trial cases, try cases. And you got training on like the fundamental stuff, you know, how how to you know do do the water, how to do those things. And uh, and so some of that, some of the things that I I learned was there. And then I went to a bunch of other trainings as well. When I got out in a private practice before the trial lawyers college, I sought a lot of training out. I went to a lot of CLEs, I went to a lot of sort of quote unquote specialized training. Um, there was a guy that used to um go around the country and he would do these one-day sessions where he would train people. Oh, what's his name? Oh man, I can't remember his name right now, um, John Katz. Um but but he had this type uh of system that he used in trying cases. Um it was uh it was a it was it was a way of of trying cases and increasing your credibility. And so I I learned that. I went to one of his sessions and learned that that impacted me in terms of trying cases. Um but my very first trial, um, I got in and tried the case. And I scrutinized what I did afterwards and got better. Um I got an acquittal. My first defense, criminal defense trial was ended in an acquittal. Um I had practiced for a couple of years and hadn't tried anything, right? Because I thought people didn't win. I was like, man, you don't want to go to trial here in Texas, you didn't go in. People don't win. That was the feeling I had. I had a feeling that people didn't win, and so I didn't really want to go to trial. And I had this one client who was on parole, and his case looked like a sure loser. I mean, sure loser. And he was like, I didn't do it. I'm not going, I'm not pleading to anything. I, you know, it'll violate my pro if I pledg something. And I couldn't. Exactly. And he did, he made a choice that he wanted to go to trial. And so, you know, of course, I rolled up my sleeves, investigated this case, and tried it, and um, and we got an acquittal. And then that trial, and I tell you, I didn't know what I was doing for for large parts of it. Um, I left a federal prosecutor on the jury, and I left a uh Border Patrol agent on the jury. People today I probably wouldn't leave on the jury, but I left them on the jury because I was trying that case. It was just me and him. I didn't have a second chair, it was just me and my client. And we liked them both. We liked the answers that the federal prosecutor gave, and we we liked the answers that the border patrol person gave, but I didn't realize what their professions and stuff were, you know, because I didn't look at that. I didn't I didn't really scrutinize the jury questionnaire. So much was going on during the picket of the jury, I didn't scrutinize all of that stuff. And and and afterwards they asked us, they say, You you left me on the jury. I'm you know, I'm a federal prosecutor, you left me on the jury. And then the the the border patrol just, yeah, you left me on the jury. And I I had no no no choice but to tell them the truth. That you know, we thought, and I told them, so we thought you would be fair, and sure enough you were. And then it was what kind of prosecution? It was a gun possessions charge. My client was uh was charged with uh unlawful possession of certain weapons, um in essence. So so they knew he was a felon. That's correct. They knew he was.

SPEAKER_02 29:16

How did you get reasonable doubt?

SPEAKER_00 29:18

Yes.

SPEAKER_02 29:19

How did you get it?

SPEAKER_00 29:20

Oh, in that case, yeah. They the person who well they they allegedly find the client sleeping in the bed in an area in that neighborhood, but a police officer sees a guy um driving, and then the guy gets out of the car, and there's a chase that ensues, and he loses the person that he's chasing. He loses him. Um and uh the police officer came in and testified that he saw the client's face and could remember him and could describe him. Miss ID? Miss ID, um, along with the fact that my client had a very unique name, and his name was only unique in that his brother had almost identical name. He and his brother both were named. Let me give you an example because I can't tell you who the client was. Let's say his name was Donald Irving Driver, right? Donald Irving Driver. And his brother's name was Irving Donald Driver.

SPEAKER_02 30:10

Right.

SPEAKER_00 30:11

And so that was the way they were. They had the same names, but just reversed. One's first name was the same as the last person's name. Uh, and so the officer finds the car and looks in the glove box and finds information about Donald Irving driver. And so, of course, the Donald Irving driver, and so they find a client who's Irving Donald Driver, and they arrest him and say, We got him, that's the guy that was running, that's the guy I chased. And so uh we actually, his brother was gracious enough to come to court and testify. His brother came to court and testified uh about his baby brother. He didn't admit to committing the crime, of course, um, but he he he came in and testified and he resembled his brother. They looked a whole lot alike, you know, and so you know, we were able to argue all the stuff the police didn't do. They didn't get any fingerprints, uh, they they didn't try to do anything else, right? And that he wasn't caught on the scene. And an officer's description of him, you know, him running and chasing after him, he's gonna be looking at his back. He's not gonna be looking, and he says that while he was chasing that, the guy was looking over his shoulders, looking at his shoulders. And he's running, he's seeing his face while he's looking over his shoulder, which's like BS, right? So he's jumping over fences, doing all this stuff, and he's looking over his shoulder the whole time, enough for you to be able to identify his face. And so the jury just didn't believe it. And uh, and so they acquitted.

SPEAKER_02 31:28

This was where?

SPEAKER_00 31:30

That was in Houston. My first trial as a criminal defense lawyer was in Harris County, uh, Texas, in Houston.

SPEAKER_02 31:38

And and was uh race involved here? Was your uh client not white?

SPEAKER_00 31:43

My client was black. Um, you know, it was a case that that there were race was involved. I didn't litigate any aspects of race though in that case, didn't raise it at all.

SPEAKER_02 31:54

I'm gonna be getting to that. Now, for those who have not been at the trial or as college and have not talked to people at the trial or as college, uh they don't know what I've heard, which is that uh a lot of people would give their left arm, right arm, and maybe both legs to be on staff at the trial or as college. And what a plum uh uh compliment that was to you, that you were put on staff right away. Uh so what happened with you at the trial or as college uh that that made you totally metamorphosize to the point that you were put on staff?

SPEAKER_00 32:29

Oh man, I was a lawyer before I went to the trial lawyers college, you know. I mean, I'm telling you, I tried cases before I went to the trial lawyers college. And so I could, I was good on my feet. Um I I knew how to try a case. Um I looked at the trial lawyers colleges. Some lawyers go to trial lawyers college and it revolutionizes everything that they do. They change everything that they do. It changed a lot for me, a whole lot for me. I mean, it changed a lot for me. It it allowed me to see things in a different way. Um, it allowed me to see things in a different way. But um, you know, mastery of trial skills was not difficult because uh I had tried a bunch of cases before I'd go in there. And so I was easy. I mean, it was easy for me to be on my feet. Um, I didn't have a problem with being able because they taught us new trial skills. I was able to master those, um, at least show some some level of mastery. I won't say I mastered them, but you know what I mean. I showed some potential there that I think they saw and they wanted me on staff because of that, because some of the potential that I showed uh in in terms of my my use of the trial skills. Because I remember uh when I was there, there were a bunch of people who were bringing it, who were really good on their feet, who were really good trial lawyers. Um, and a lot of us went on staff. From my first uh my my year, the people who came through with me, a bunch of people went on staff. A bunch of people went on staff. Awesome. So um, you know, I think uh I think that was one of the reasons why I think I got asked was because of that. Because uh because like I said, I had tried cases and all, and I had a willingness to learn too, um, which was another piece of it. I think my willingness to learn, and I was I was I I I approached it very humbly, and that I did not know everything, and that I was willing to listen and willing to to to learn. I mean, I approached it like you know, I I don't know this, I need to learn this, this can help me, and uh and I think those attitudes helped me get on staff. I think the the the idea that that I I had some skill and was good on my feet um helped. Um but I think that the the the willingness to sort of learn something different. You you when you were there, were there some old head lawyers who have tried a whole bunch of cases who were questioning everything? Was like, I don't know, you can't do that in my jurisdiction. No.

SPEAKER_02 34:46

No, every everything was open. I mean, 1995, that was the second year. That's when we had a whole bunch of people on staff who had not been at the trial or his college. I think it was in 1996 or 97 where almost everyone on staff had been uh you know students or YFWs, why, you know, young F and Warriors uh themselves and gone through it.

SPEAKER_00 35:06

I see. So when when I was there, everybody had gone through the college that was on staff. There weren't you nine people. You had uh like you were probably there with Race Hoss Haynes and people like Steve Ranch and a bunch of others. Yes, oh he had lawyers who who were were kind of helping them chart the way. Um, but no, by the time I had gone there, people were devoted to psychodrama, people were really uh devoted to TLC. Some lawyers had abandoned everything that they had done in the past and were doing everything like they did in the trial lawyers college, right? All TLC. I mean, everything they did was TLC. And so that's when I was there. Um and and I I'll tell you, um, there were also a lot of old head lawyers, I mean lawyers who had been practicing for 20, 30 years, who resisted everything, who who didn't get psychodrama, who resisted all of the ways they did things. And uh and there were there were sections of people who did that. Um not a lot, but there were some. Um and I wasn't one of those people. I was there very open and willing to learn and and trying and getting on my feet um and working. Uh, and those are things that I think um going through the trialist college can help you. Uh, I wouldn't go and I wouldn't, I didn't really want to be on staff. I didn't, it wasn't something, I'm being honest. It wasn't something that I saw and and wanted. I didn't, I wasn't like, oh, I wouldn't mind getting on staff. You know, some lawyers go in and they want to audition. They look at it at them being on trialist college and stuff, they don't is an audition for staff. No, um, I wouldn't seek it out. And I didn't seek it out. I hadn't, to be real with you, the thought it never occurred to me. Because uh here I was, and when I went through uh the college, uh, I was trying to learn, I was trying to get better. I was trying to, you know, still keep practicing. I had thought about teaching people. Um and so when they asked me, I was somewhat surprised. Um and I molded over. And I said, yeah, I'd be interested. And and uh and I went to staff training, still not sure if it was what I wanted to do. And um and I did it and I enjoyed it. I actually uh learned more by going through the staff training. Um I learned more and got better as a lawyer by going through the staff training. So being being on staff, it's a privilege. I mean, I I wanted to give back because I got so much from the trial lawyers college, and so I keep doing it because I want to give back to people what I got. I got a lot out of it. It made me a better person and it made me a better lawyer. And I wanted to give that back uh to people, you know.

SPEAKER_02 37:32

That's excellent. So when I went, I was a public defender for four years already, and you know, I guess you know about the wrench book. Uh so the wrench book was out training criminal defense lawyers how to do methodology for uh uh for for criminal trials. And I met Steve Wrench in 1994, talking at the uh one of the public defenders' offices. And when he uh waxed poetic or praising over the trial's college, I said to myself, if he's gonna be there all four weeks, which he was, I'm going if I got it get in. And I got in, and what I learned from the trial laurels college was to integrate probably what you did uh and have done, integrate what I learned at the trial aura's college with what I was already doing. I had already learned a lot about the uh Posner Dodd cross-examination method. I had learned uh the Steve Ranch approach. Uh Jerry Spence at the time was at the Trial Laura's College virtually every day every weekday, Monday through Friday, which was great. And what really helped me with the Trial Laura's College was to uh underline that I was on the right path. I was being true to myself. I was doing what I was passionate about. There was a uh supervisory public defender at the office I was at, and I excitedly said to her, hey, I said, you know, my client I just got an acquittal for. He said he's gonna invite me to his uh family's uh summer picnic. And she said, Oh no, she said, keep at arm's length from your clients. Hell no. And what did Jerry say to me when I did an opening statement uh for a murder trial I was gonna do, that I where I got a uh a post-conviction win to get a retrial after someone uh there was another criminal defense lawyer in it who lost the case. Jerry said, So how are you gonna get to know your client? Uh is he still being held uh in detention pretrial? I said, yes. He said, so maybe you're gonna stay overnight with the family, uh, learn about how he grew up. Exactly. Exactly. And then of course I didn't know about psychodrama. And uh fortunately, after I started my own uh law firm with my former law partner, Jay Marks, in 1998, by 1999 there were at least three or four uh alums of the Trollors College in the area, and we'd have uh we'd meet at least once every month or two months, and Don Clarkson would join too, because you know, Don Clarkson was in Maryland, uh, you know, right in there. I mean, that that was just amazing. And of course, Chris Flor, who I mentioned to who I think you already know, he does his uh monthly gatherings in Maryland now. Uh hybrid.

SPEAKER_00 40:03

I'm gonna try to go to one of those. Not try. Do.

SPEAKER_02 40:07

Yes, yes, yes. So, what were one or two of the defining uh moments or aspects of the trial or as college for you in uh changing uh the direction you went or ex or helping it uh both when you were there and up through right now? I mean, you mentioned psycho drama, for instance.

SPEAKER_00 40:26

So one of the things that uh I think you know helped a lot in terms of understanding it. Um, you know, one of the things that just connects us as human beings is emotions, right? How we feel, um, you know, and emotions that we have. That's one of the things that connects us. And and psychodrama allows you an opportunity, um, and and doing psychodramatic reenactments allow you an opportunity to explore different emotions and and learning about the emotions, either reversing roles with the different protagonists or different people involved in the different areas in the criminal legal system can kind of help you find out about things that may have motivated them, how they may have filled, gives you a greater perspective. And for cross-examination, for example, it gives you a greater opportunity really to cross-examine because you have so much more information, um, so much more understanding that's available to you. And the other part of the trial lawyers college that helped was putting things in action. I mean, putting things in action and seeing it in action, allowing a jury to be able to experience things in action was uh very helpful. Um, but but in particular, the one thing that connected us all, and the one thing that makes it successful is is the emotional context and understanding the emotions. And those are the things that connect us as humans and allows jurors to be able to see things, it allows jurors to be able to feel and experience and relate um uh with our clients and to emote um with our clients.

SPEAKER_02 41:53

And of course, for those who haven't uh heard them before on the uh this podcast, Don Clarkson is one of the greatest living psychodramatists. Uh, what is it that you're uh willing to share uh about what you've learned at staff training that's been helpful to you?

SPEAKER_00 42:09

That what I just said, uh that that emotions connect us all. Those are things that I've learned that that have been able to help be very helpful. Uh that that's very helpful.

SPEAKER_02 42:20

And uh for those uh who are considering grad one and grad two uh the trial or as college, is that only available for people who have attended the full-length uh trial or as college? And why would they want to attend uh both of those uh events?

SPEAKER_00 42:37

Those are only available for people who have attended the full trial lawyers college. And of course, at both of them you learn more. Um grad two, you learn um more. You know, a lot of it there's a focus on storytelling. Um there's a there's a focus on using the skills of grad two. Uh grad one is is you you're gonna learn more about psychodrama. How you know you know from grad one, you can go there and learn to use psychodrama in your office more effectively. And it's it's open to grads of the college. That's why it's called the grad course. Um, but if you go to just the trial lawyers college itself, uh, the three-week college, um, you'll learn a lot of that. You'll learn um use of psychodrama. Um, you'll learn something called discovering the story, which is using psychodrama um to sort of peel back layers in your client's case, or peel back layers about your client and about witnesses um to learn things more deeply about your client. Um one of the things that psychodrama allows us, it allows us to use tools, right? Psychodrama is is is is is a therapeutic method that that uses certain tools in the therapy. Now, those tools in the therapy are useful also in criminal defense cases and doing reenactments, because a lot of what happens in psychodrama is that it happens in action. Stuff is going on in action, and the the therapy works in such a way that they put things in action. Like you might have an experience that you've had, they put that in action. You'd almost reenact that. And then while you're reenacting the experience, you would dwell into some of the emotional context, some of the hurts, some of the trauma that you may have experienced. You dwell into that. So that's why most of the psychodrom psychodramatists are trained therapists. And that psychodramatists will actually they use it for therapy. And lawyers use aspects of psychodrama, what's being used in therapy, to sort of discover cases because it puts the case in action and you're able to explore stuff that happened in the case. You're able to reenact the case, and while you're reenacting the case, you can stop in segments and use some of the psychodramatic tools to explore the emotions, explore the motivations behind things, to explore what was going on. I mean, if you got a client in a self-defense case, for example, right? Exploring in the moment what the client is experiencing and what the client might be feeling when they're they're they're they're they're they have to use self-defense can be immensely helpful in explaining it to the jury. Um if you've explored the different layers, the different emotions behind um the reasons why the client did what the client did can be immensely helpful in explaining your client's mental state and your client's motivation to a jury. And psychodrama allows you to be able to do that. That's just one example. There are many other examples as well of where psychodrama helps when you're getting ready to cross-examine a witness, exploring the motivations behind a particular witness, what why they might be doing what they're doing is something that psychodrama allows you to be able to do as well. You're able to peel back the layers and really get to the heart of what's what's what's what's going on and what's behind it. So if somebody's never experienced um the trial lawyers college, um that's one reason is to learn about psychodrama and how psychodrama relates to the work that we do. How does it apply to the work that we do? Um and it once you do that, the skills that are used at the trial lawyers college are are somewhat unique, right? Uh as well. The actual skills themselves are somewhat unique.

SPEAKER_02 46:00

When I was a public defender, Laura, I found that the vast majority of the public defender lauras I spoke to were not motivated by idealism, but more because they wanted to do trials or they wanted to do criminal work. And I was and remain a true believer. And one day I was speaking to a true believer, uh public defender Laura, about her motivations for doing this and uh also about uh my frustrations with the National Laura's Guild, which does a lot of great work, but I think is overtaken by too much uh uh far-lefty doctrine. And uh she said, the system is racist. Now I agree that the system is racist heavily, both in effect and also uh at least by neglect. And what is your view about racism in the criminal justice, both by the people who make the laws, run the criminal justice system, and the people on the juries and everyone else in the courtroom?

SPEAKER_00 46:59

So the criminal legal system is a system of control in essence, right? Um and it is one that has evolved out of racism. So, for example, right, most modern police agencies actually evolved from um from uh slave patrols and evolved from plantation police, right? And so, so uh a lot of the really most and you've heard of Indian constables before. I don't know if you have constables' offices uh in Texas, they had constables' offices. Um there was something called Indian constables that were designed to protect settlers, early settlers, from attacks from Native Americans. And and those types of organizations that were designed to control minorities and control minority populations evolved into local law enforcement agencies. You can check their own history, their history will tell you that a lot of the history of a lot of those organizations, they trace themselves back to um slave patrols and back to plantation police. Um, so the organizations, the police agencies um were designed to control, you know, black populations and minority populations. So it's no surprise, right, that we have driving while black. It's no surprise that we have police officers being brutal. Because think about it. Um, you know, the the way it evolved, and I did a talk on this. I used to talk on race and and voidier all the time. And um and I would would go through the history about how it all evolved and how the laws, I mean, came up as well, and about how the enforcement of laws were there. I mean, you know, a lot of the federal laws that we have in terms of drugs, um, there's a reason why there was a disparity for many years. I mean, they've done some things to correct it. There still is a slight disparity, but they they've done a lot of things to correct it, the disparity between crack cocaine and powdered cocaine, right? Um, we saw that for many years. A lot of that because because the laws were targeted at minority communities. Um it happened for several different reasons. A lot of it was because of, you know, convict leasing. Um the the the 13th Amendment um uh was was was ratified, um abolished slavery. Um, but the 13th Amendment had a clause in it that said that except for um imprisonment, right? You couldn't enslave anybody except for imprisonment for for being convicted of a crime. So you had a whole bunch of states that passed what were called black codes. And they weren't called black codes because it was the black letter of the law, they were called black codes because they applied to black people, and they were laws uh that were designed to re-enslave people. Um, I mean vagrancy, right? It was a vagrancy law. So if you were a black person and you weren't working or had proof that you were working at a plantation, you could be arrested for vagrancy and forced to work at a plantation. So you're freed. You're free to slave, you're free, but they passed these quote-unquote black codes that will allow them to arrest you for not working at a plantation and re-enslave you and force you to work at a plantation. I mean, I think it was uh South Carolina um was one of the first states, maybe Mississippi. Um there were like two states that were the first to pass black codes, and then after that, all the places in the South passed black codes. Uh, and and so you had this huge thing of convict leasing, and uh where you know you were arrested for vagrancy. And it's still the law now, right? A lot of places have vagrancy laws. Um, you could be arrested for doing nothing, really. You could be arrested for doing nothing, uh, which is profound. And police can stop you for doing nothing. Probable cause back in the day, in terms of um um, you know, people you know, uh allegedly being a violator of the fugitive slave law, probable cause was race. Um for black coats, probable cause, one aspect of probable cause was race. So if you have a component of breaking a law being a person's ethnicity, it's very likely the police are gonna have to be looking for people of that particular ethnicity. And so if you have the organizations that are enforcing these laws, um that they evolve to being the current police uh agencies that you have, and you don't do anything to uproot any of that, the attitudes that are there, um then you're gonna have it. The whole criminal legal system, arguably, is is in America is subject to race and um and class. Um it's a means of controlling um lower class, uh perceived lower class or poor people, uh, but a means of controlling people of a particular race.

SPEAKER_02 51:28

And in the last few moments of this discussion, because I told you we're gonna end in uh four or five minutes, um, I'm gonna ask you to give uh one or more examples about what you have done in and uh and suggested other criminal defense lawyers do to overcome the racism. And I I just want to throw in this one. Uh when there's a prosecutor's office where the chief prosecutor claims to be progressive, I try to turn that around. When marijuana possession was still lawful, I had a client who the police uh were harassing for clearly no other reason other than he was black. They were saying, What are you doing in the neighborhood? Well, young and black, 21 years old. So I so I said, and then they, you know, get a consent search and find the marijuana. So I said to the prosecutor, does your chief prosecutor want to be known as supporting this kind of clear racism by the cops? Prosecutor dropped the case.

SPEAKER_00 52:23

I think that's good. Very good. I I think lawyers um need to litigate uh race. I mean, most states and most places um have in them, built in them, certain laws that that sort of uh uh you know uh, for example, outlaw racial profiling, right? Um most states have statutes now where they outlaw racial profiling. That if if police officers use racial profiling, um then it could be used to suppress the evidence. The fact that there's racial profiling could be used to even get dismissals in some cases. And uh, the problem that that I've seen, because I've gone around and I've lectured on it through NACDL, um, the problem I've seen is that a lot of lawyers don't litigate race in cases. They don't litigate race in cases, um, they don't raise it in voidir even. I mean, I think in Voidir, there's some studies that have shown that by just mentioning it, making race salient, a salient issue in Voidir. You know, you have to come out directly and talk about it. But just raising the issue will improve outcomes from people of color when they go to trial. Um, because jurors are will will be on guard, will be watching for racial issues in cases, and will try to balance the scales. People will try to be fair. There's research that shows that your your outcomes are improved by vi uh by void during our race, even if you raise it just subtly uh as an issue. And I think um a lot of lawyers are afraid because they don't want to quote unquote play the race card in cases, all right? They don't want to be seen, but that's the the effect is just the opposite. When when lawyers raise race in trials, um jurors are like, whoa, is this a racial issue? We need to be cognizant of it. Um and we need to be be aware of this. Maybe we need to see, is this the actually was it race? And and and in their deliberations, they'll guard against it as well. They'll they'll they'll be on on uh on the lookout for it, um, is what the research shows. And there are a number of ways you can do it in a way that it isn't offensive, um, some ways directly and some ways just very subtly. I I typically void air on race by using the story, telling a story. I tell a certain story in every trial I've done when I've why there's our race, um, and and it's helped me to deal with it. And if I got time, the story is is is really straight. But I have time, okay. Um when when I was uh I was defending a case in a rural area in Houston, um an area that was known for skinhead activity, and I I did something uh stupid. I went out and I was doing a crime scene investigation and uh I did something stupid. Uh I wasn't paying attention to my gas meter and I ran out of gas. So, you know, I locked my car and I started walking to where I remember the nearest gas station. And I remember it was a gas station I thought maybe a mile or so away, and I started walking. Um, and and as I was walking, um, this truck, a truck came by that had these big wheels on it and had mud and stuff all on the truck, um, and it had decals all across the back, bumper stickers, different bumper stickers across the back. This truck came speeding past me and slowed down as it was going by me, and my heart started beating fast. And uh as I got closer, the truck uh rolled down the window, and the older white man stuck his head out of the window and said, Son, you look like you could use some help. And so we talked through a window of his truck, and we were talking through the window of his truck. I ended up getting in his truck and we started heading um back to to heading towards where a gas station was. And as we were talking, I realized that he um had uh four kids. And at the time, I I had had I had three kids, and we were about to have a fourth. Um, and and his I learned that his oldest son's name was Joshua, and my oldest son's name was was Joshua. Uh, and and and we started talking, and he told me about him being married, he'd been married for many years, um, and he told me that he had been a youth pastor. And at the time I was a youth pastor, and we we just talked in the car. And as we got to the gas station, um uh he he he jumped out of the car without uh saying a word, out of his truck without saying a word, and he had a gas can in the back of his truck and he filled it up with gas. Um and then he put it back in the truck and we started headed back to where my car was and we talked, we realized we had so much in common. Um and and he said to me, he says, you know, son, when I first saw you on the road, I thought you were up to no good. And I told him, I said, when I saw you, I thought you were up to no good too. Yes, and and and we laughed, and uh, and and we drove and we talked, and um we we realized we had so much in common. And he said, he says, you know something? It's something how we can see each other. And just based on how we appear, based on your ethnicity, my ethnicity, based on the colors of our skin, we can make some deep assumptions about each other. And I say, Yeah, that is that is amazing that we can. And he says, Yeah, it's amazing. And I said, ladies and gentlemen, it's amazing that we can make deep assumptions about each other. My client, Mr. Jorge, is here and he's got headphones on, and you see him speaking through an interpreter, um, and and you you see his ethnicity is that he is um Latin. Is there anybody here who's making any assumptions about him? And and then we'd start a conversation. That'd be how I voider on on race. And oh, my client is a young black man, and he's here, he's accused, you know, whatever the situation might be, and then try to start a discussion. And uh that's typically what I would do in voidering on race.

SPEAKER_02 57:49

Eric, that alone made this podcast pure platinum.

SPEAKER_00 57:53

No, that's nice of you to say. But it was a pleasure sitting and talking to you, John.

SPEAKER_02 57:59

I'm same here. Is there anything you haven't told the audience already that you want to tell them? Please include telling them where to reach you or that you want to re-emphasize.

SPEAKER_00 58:09

Oh, there's a lot, but I I'll say just this. Um, my my name again is Eric Davis. My telephone number is 713-227-2727. My email is er-c dot d-avis at gmx.us. And keep fighting would be what I want to emphasize. Keep fighting.

SPEAKER_02 58:32

Keep fighting. Thank you, Eric Davis. You've heard from Eric Davis, who's moved from Texas, where they call each other Bubba, to Silver Spring, Montgomery County, Maryland, where you don't hear that a lot. This is John Katza, beat the prosecution because there is no other way. I'm a Fairfax criminal defense and DUI defense lawyer. Thank you so much, Eric. Standby.

SPEAKER_01 58:57

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.