Unknown to all but a few, the final chapter in a compelling mini-drama was
unfolding behind the scenes in late October. A major change in defense strategy was
evolving. It was an attack on the heart of the state's case: the FBI tapes. Unable to
discredit the integrity or the authenticity of the recordings, the defense would strike at
the content. It would show that David McCrory had dominated, manipulated, and controlled
the ebb and flow of the conversations so devastating to the defense.
"What we need is a semanticist," Sam Guiberson had suggested one
evening in Houston in 1978 during the first trial. An acoustic and electronic whiz kid,
Sam was the team member most familiar and intimate with the tapes. I know every phase,
every hesitation," he had told Racehorse. "I believe a linguistic analyst could
nullify the tapes as state's evidence." Time and the rush of trial activities had
dealt the proposal a natural death. But in the summer of 1979, Sam resurrected the idea.
He approached ("Racehorse") Haynes and told him, "We can show who really
was using the violent language, who was interrupting whom, how the conversations were
sculpted and who was the active agent and controller." Haynes instructed his young
associate to find him a linguist.
A week before jury selection, Sam introduced his boss to one of the foremost
experts in the world. His name was Dr. Roger Shuy, and he was a professor of linguistics
at Georgetown University in Washington, D.C. Handsome, dignified, and precise, he was not
the type of defense witness to which the Cullen Davis juries had grown accustomed.
"He's a player," Haynes announced after a meeting in Shuy's hotel room
at the Dallas-Fort Worth Airport. The lawyer granted Sam blanket authorization to proceed
with the project.
Shuy spent some fifty hours studying the tapes, and Sam spent an equal number
preparing himself, Haynes, and Shuy for the courtroom presentation. Sam and the professor
would jog and talk behind the Green Oaks Inn each morning and work together each night.
They gambled also that Judge Gray's natural curiosity and renowned
unconventionality would favor their case. "The old bastard will welcome something
that's never been done before in a criminal case."
As Roger Shuy on the morning of his testimony took his seat, adjusted his
horn-rimmed glasses, and ran a hand through his gray-black hair, John Bankston whispered,
"For chrissakes, what now?"
The impressively credentialed professor said he had spent countless hours
listening to and analyzing the tapes and designing several multicolored charts. Strickland
did not know what was happening, only that he didn't like it. ... Shuy treated the jury to
such words and phrases as "shared reference," "internal cohesion,"
"conversational strategy," "recycling topics," and "recurring
factors." They were introduced to "agenda organizers," "shared
responses," "topic identifications," and "lax tokens."
According to Shuy, the incriminating "Do the judge and then his wife"
command from Cullen on August 18 was actually "He'd do the judge ... " As
innocuous as that might sound, prosecutors knew that the first phrase was an
"imperative," a command, in part the basis for the indictment against Cullen.
Shuy's interpretation was a "declarative" or conversational statement, which was
what Cullen had contended all along.
Not at all obliquely, Haynes, Gibson, and Burleson had argued that the FBI tapes
were more corroborative of Cullen than McCrory. Later, Sam Guiberson would say: "No
one would have believed me if I told them when the trial began that in closing arguments
each of the defense lawyers would say that those tapes themselves would support what
Cullen had said from the witness stand." Sam was right. No one would have believed
him. But the unique attack on the FBI tapes would fundamentally change the way defense
attorneys would try future cases that involved tapes.
"The jury's found Thomas Cullen Davis not guilty!"
"I pretty well thought he was innocent all along," said juror Jake
Grable. "There was some testimony I wondered about, mainly the tapes." He
said Roger Shuy cleared up what little doubts he had. "I think that was the only
witness the defense needed."