By Stephen Young
By Stephen Young
By Stephen Young
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
It was a card he didn't think he'd ever send.
Just weeks earlier, his dad, a man who's never played pitch with him, who's never taken him fishing or to a ball game, had been scheduled to make the 45-minute trip from the Texas prison system's Death Row to The Walls unit in Huntsville, where he was to be executed as punishment for the brutal stabbing murder of an Humble man 11 years ago.
The date, as fate would have it, coincided with the first day of the new school year his son had been eagerly anticipating. Yet young Davis, wishing to join other family members in a final goodbye visit, had already made arrangements for an excused absence. Then, just days before the execution was scheduled, inmate Brian Edward Davis received a stay--his second since being sentenced to die by lethal injection--when the Texas Court of Criminal Appeals ordered his trial court to conduct a hearing to determine whether he is, as his lawyers claim, mentally retarded. Earlier in the year, the U.S. Supreme Court had ruled that executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishment. And just a week before Davis' scheduled execution date, Curtis Moore, convicted in Fort Worth of three 1995 homicides, had been granted a stay for the same reason.
So Davis would live to see his 34th birthday and receive the card sent by a son whose own life would, at least for the time being, return to a semblance of adolescent normalcy.
T.J., meanwhile, tries not to think about the possibility that the day will eventually come when there will be no more postponements, no more prison visits, no reason to mail a birthday card. "What I do," the polite teen-ager says, "is keep my mind occupied with other things." He studies hard in the evenings, reports to school at 6:45 every morning for pre-class practice with his fellow cross-country runners, takes his responsibilities as a church youth group leader seriously and enjoys an active social life.
He talks of college and one day becoming a lawyer. Or perhaps a fireman. But seldom of his incarcerated father. Friends and classmates don't know that his dad is a convicted murderer. Nor do his teachers.
Recently, he sat mute and angry as fellow students, asked to take a straw vote on the death penalty, voted overwhelmingly in favor of it. "I just laid my head down on my desk and didn't say anything," he recalls.
Though he has seen photographs of his dad holding him as an infant and heard his mother tell stories of Brian changing his diapers and feeding him late-night bottles, T.J., only 3 when his father was first incarcerated, has no firsthand memory of a relationship that doesn't involve a prison environment. In the years since his first trip as an 11-year-old elementary-school student with no real understanding of the place or why his dad was there, T.J. has become increasingly comfortable with the routine. "I look forward to going down there," he says. "I always look forward to seeing him."
They talk of the outside world T.J. is growing up in, the father always warning the son to avoid the pitfalls of his own youth; they talk about T.J.'s plans for the future, about the Bible. They share jokes.
One of the things the youngster notices as he looks around the visiting area is the absence of other teen-agers. "I see older people--mothers and fathers and wives--and a lot of small children," he says, "but hardly ever is there anyone my age." Is it because of the discomfort so many feel inside a prison visiting room? Are peer-conscious teen-agers embarrassed to make such trips? Or are they simply rebelling against a person they feel has shamed them?
"I don' t know," T.J. says with a shrug. "All I know is that I love my dad, and if the only way I can spend time with him is to go where he is, that's what I'll do."
He often makes the trip with his grandfather, an ex-Marine who lives in rural Tarrant County. "Sometimes the visits are really difficult," says 54-year-old Jim Davis. "From the drive down to the return home, you're riding an emotional roller coaster." Even before he arrives at the Livingston prison, Davis knows he'll not shake his son's hand or be allowed to embrace him. They'll be separated by glass, talking on phones for a maximum of two hours. In 11 years of twice-a-month visits, the father and inmate son have never touched. "You try to make it as good a time as possible," Jim Davis says, "but sometimes it's hard."
The pain he's seen on his grandson's face always lingers with him as they drive away from the prison.
Almost without exception, Jim returns home mentally drained and physically exhausted. The worst, he says, came in May, on the day Brian had first been scheduled to die. There were tears and laughter, prayers and painful goodbyes. Brian talked at length with T.J., encouraging him to continue his education and make something of his life. "He was trying so hard to be strong for everyone," says Pam Davis, Jim's wife. "He was doing his best to keep us upbeat. A scene like that is difficult to describe. Unless you've been through it--waiting for someone you love, a perfectly healthy person, to be taken away to die--you have no idea what it's like."
"No person should be put through that kind of torture," her husband adds angrily.
Watching as his son was shackled and escorted to the van that would transport him to the Death House, the elder Davis admits, was worse than any Vietnam combat situation he ever experienced.
Then, just two hours before the scheduled 6 p.m. execution, the U.S. Supreme Court granted a stay, ordering that the mental retardation issue be reviewed. Greg Wiercicoch, an attorney with the Austin-based Texas Defender Service, which files pro bono death sentence appeals, had successfully argued that Davis' I.Q. was within the clinically accepted retardation range.
"I never suffered any post-traumatic stress after 'Nam," Jim Davis says, "but in the weeks after that visit, I got a pretty good idea what it was all about." Even now he sleeps no more than a couple of hours at a time. "I wake," he says, "and think about Brian, about where he is, about the possibility of what might eventually happen to him. It's all so barbaric." For a time he sought therapeutic help.
Tracy Tucker, T.J.'s mother and Brian Davis' ex-wife, says she completely lost her voice for a week after that tension-filled day. Her doctor told her it was a result of the stress; same with the severe chest pains she suffered for several days.
Today, Jim Davis still searches his mind for something that might magically remedy the nightmarish situation but always comes to the realization that there is little he can do. He and Pam, whom he married in 1988, have paid out thousands in attorneys' fees, written letters to high places, sought help from anti-death penalty organizations. "In the end," he admits, "what you do is expect the worst and hope for the best."
T.J. and Jim Davis are what some sociologists call the "other victims," innocent and unsuspecting family members whose lives have been indelibly scarred by a criminal act. Traditionally, society focuses sympathetically on the family and friends of homicide victims but seldom addresses the ripple effect on those related to the person who committed the crime. "There is an unjust stigma attached to being related to someone who is in prison for committing a violent act," says Tina Church, a friend of the Davises and an Indiana private investigator who specializes in the re-examination of death penalty cases. "Society has adopted a guilt-by-association mind-set that is terribly unfair."
Houston's Dave Atwood, founder of the Texas Coalition to Abolish the Death Penalty, agrees. "Unfortunately, there's a long-standing tendency to assume that the family is somehow responsible for the criminal's actions," he says. "Certainly, there are a lot of people in prison who are the products of dysfunctional families, abuse and neglect, but not always. I've met many families of Death Row inmates who are wonderful people, unjustly held responsible for something they had absolutely no part in."
It is for this reason that Tucker advises T.J. to keep his father's past a secret. "I know that just as soon as others know what his dad has been accused of, there will be some parents who no longer want their sons and daughters associating with him. I don't want him exposed to cruel teasing from his peers.
"It's a hard thing to explain, and I'm not sure he fully understands it yet, but that's just how a lot of people are."
And so for years, the sins of the father have remained a family secret--even though Brian Davis' father, his son and ex-wife are firmly convinced he didn't commit the crime that led him to Death Row.
"My dad has always said he is innocent," T.J. says. "He wouldn't lie to me about a thing like that."
Today, even Tracy admits that Davis may be retarded. "The truth is, he's not very bright," she says.
Still, back in her teen years, all the parental warnings fell on deaf ears.
From the moment Brian Davis promised they would "be together forever," the teen-agers bonded and launched on a reckless journey. Sitting at her kitchen table, Tracy, now 33, recalls the days and nights of her youth in stark, candid detail: how she evolved from being an occasional marijuana smoker to "the white stuff" (cocaine), then hash and acid, dropping out of school and living with Davis on the streets of Fort Worth by day and sleeping in one seedy motel after another at night. Of a spur-of-the-moment cross-country trip to California in a car she only learned had been stolen when the driver who'd invited them along was arrested, and of the marriage proposal Davis made in a letter he mailed to her while in jail for a probation violation.
At a time when her high school friends were sending out graduation invitations, Tracy remembers sitting on the edge of her bed at 17, crying uncontrollably as she addressed birth announcements.
Their too-soon marriage would last just two years. When she became pregnant, Tracy had turned away from the rudderless lifestyle, stopped using drugs and urged her husband to do the same. He couldn't. Her father, who had given Brian a job with his construction company, soon wearied of his unreliable son-in-law being a no-show and fired him. At his next job in a pizza joint, Brian returned home after only a few hours on the job. When Tracy asked what had happened, her husband explained that he'd been fired when he couldn't properly write down the phone-in orders. Having dropped out of school after completing the eighth grade, Brian could barely read and write.
Though too young and feckless to realize it at the time, his life was already spiraling in the wrong direction. Too much Budweiser and Jack Daniel's, too much time spent prowling the streets in a drugged haze and a multitude of ill-conceived schemes to support his wife and newborn son and finance his habits took their toll.
In time, he was arrested again and sentenced to six years in prison for distributing marijuana.
Tracy thought it was time for her and her infant son to move on. In the fall of 1988, she filed for divorce. "Back then," she says, "I can remember seeing Brian cry only two times. The first was when T.J. was born. Those were tears of pure joy. The other was when I told him I was filing for divorce."
Recently, however, she saw tears again. They came when she visited her ex-husband as he awaited his fast-approaching execution date.
Even though their lives have taken drastically different courses, that inexplicable bond, forged as teen-agers, remains. Though married to her third husband and the mother of two, Tracy Tucker makes no secret of her ongoing support of Davis. They've never lost touch, corresponding regularly, talking on the phone and visiting through the Plexiglas on Death Row more times than she can recall. "We've always had a relationship," she says. "It's been that way since that first day we met as kids."
Her current husband, Paul, a heavy equipment mechanic, tries hard to understand, to not allow her feelings for her ex to damage their four-year marriage, but struggles with it at times. He declined the Dallas Observer's request for an interview.
"He, like a lot of people, has told me I need to let go of Brian, to move on and just focus on my life with him and the children," she admits. "I know he's right, but I just can't."
It's impossible for her to explain, she says, but the passage of time and traumatic events--even the horrible crime for which Brian Davis was convicted and sentenced to die--have failed to dim her feelings.
According to a videotaped confession given by Brian Davis, he and Tina Louise McDonald, a woman he'd married just two months earlier, had met the mildly retarded Foster in a Houston nightclub at the end of an evening of drinking and listening to punk-rock music.
Foster, who had suffered brain damage at birth and had no drivers license, routinely took a bus to the city's glittery Montrose area from nearby Humble to visit clubs on the weekends. In the early-morning hours of August 10, 1991, he'd been offered a ride home by Davis and his wife. According to his confession, Davis had accompanied the victim into his apartment, expecting him to pay gas money for the trip. When Foster said he had no cash, the drunken Davis allegedly stabbed him 11 times, then, with a ballpoint pen, drew a swastika and the letters NSSH, the initials of the National Socialist Skin Heads, on his abdomen. Vulgar neo-Nazi messages were also written on the living-room wall near where Foster, who was white, lay.
When the body was found three days later, investigators saw that Foster's nose had also been broken, as if someone had kicked him in the face. The pockets of his trousers were turned inside out. Several personal items, including a red leather jacket he'd been wearing when last seen, were missing.
Even as the Humble police were still in the early stages of their investigation, Davis and his wife were already in the Harris County jail, charged with yet another offense--an aggravated robbery that had occurred just days after the Foster murder. Again, according to Houston police records, the bar-prowling couple had picked up another man, driven him to a motel, then robbed and stabbed him. This time, however, their victim lived. A motel employee, hearing screams, had interrupted the attack. In short order, Davis and McDonald were arrested.
Soon, members of a local skinhead group and the owner of the bar who'd seen Davis and his wife leave with Foster on the night of his death provided authorities with enough information to charge the couple with his murder.
It was in November of 1991 that Brian finally reached an agreement with investigators, who'd questioned him repeatedly about Foster's death. He would confess, he said, but only if his wife, whom he insisted had not participated in the crime, was not charged. Ultimately, it was agreed that Tina McDonald would receive immunity for any involvement she might have had in Foster's death. Davis, unaware that he'd become the target of a death penalty prosecution, assumed he would most likely receive a life sentence that would require him to actually serve no more than 15 years.
As he told his story, Brian Davis--who once described himself to police as "a time bomb waiting to go off"--appeared at times to be confused about critical details, describing a two-edged dagger used to commit the murder when, in fact, the medical examiner's report indicated the fatal wounds had been made by a knife with only one sharp edge. His recollection of the date of the crime was almost two days later than it had actually occurred. A diagram he drew of the victim's apartment was generally accurate except that he'd placed the rooms opposite from where they actually were.
Still, in June 1992, a jury, after viewing his videotaped confession, found Davis guilty of capital murder, and he was sentenced to die. Tina McDonald, meanwhile, pleaded guilty to aggravated robbery in the other crime and began serving a 40-year prison sentence in Gatesville. In accordance with the agreement prosecutors made with her husband, she was never charged in the Foster murder.
Last fall, however, McDonald, now divorced from Davis and no longer in touch with him, gave a detailed written confession in which she admitted that she, in fact, had killed Foster. Davis, she wrote, was not even present at the time of the murder. Before driving to Humble, she said, she had dropped off her intoxicated husband at the Houston motel where they were living at the time. Later, after they'd reached his apartment, Foster began to make sexual advances toward her. That, she said, was what had prompted her to stab him repeatedly.
Though McDonald would later recant her confession, Davis' parents and Tracy Tucker believe there is ample evidence to support her confession. "From the day I first visited him in the Harris County jail soon after he was charged," Jim Davis says, "Brian has insisted that he didn't do it. His story has never changed." Strands of hair found clutched in the victim's hand matched the red-haired McDonald. The victim's jacket and music tapes taken from his apartment were recovered from her car, along with a knife that had only her fingerprints on it. Additionally, her description of the crime scene more closely matched what police initially saw.
In a time before DNA became an investigative tool, there was no physical evidence that directly linked Brian Davis to the crime. Fort Worth attorney Scott Brown has filed motions asking that the courts place Tina McDonald on the stand. "Have both sides question her," he suggests, "then let a judge decide if she's telling the truth or not." His requests have been denied.
"There's no question that Tina McDonald was a violent person, an avowed skinhead with a reputation for always carrying a knife," says investigator Church. "And she was by far the smarter and more aggressive of the two."
Harris County Assistant District Attorney Kelly Siegler, who prosecuted Davis, does not dispute Church's observation but dismisses McDonald's claim that she alone murdered Foster. "She's always flip-flopped," says Siegler, who is convinced both Davis and McDonald participated in the crime. "You couldn't imagine a worse couple hooking up."
But why, if he didn't commit the crime as he now claims, would Brian Davis have confessed to it? "He's always told me that he did it to protect his wife," Tucker says. "He says he would have done the same for me."
The version of events that Davis told his ex-wife closely parallels what McDonald described in her confession. He was too drunk to drive, he told Tucker, and got into the backseat of McDonald's car after leaving the club. Because he woke the following morning unaware of how he got to the motel, he could only assume that she'd dropped him off there before driving Foster on to Humble. McDonald, whom he describes as a "wild woman" who always dressed in fatigues and fervently embraced the skinhead philosophy, had never mentioned what occurred that night.
Brian Davis had become briefly involved with the local skinheads at McDonald's urging. And only when she confessed, Tucker says he'd repeatedly told her, was he aware that she had actually murdered Michael Foster.
"At the time Brian confessed, he had no idea they [prosecutors] would ask for the death penalty," Tucker says. "He was willing to serve a long prison term for something he didn't do, just to protect his wife. But he never expected to be put to death for it."
But what of the second crime, the attempted robbery and stabbing of yet another victim? Davis again explained away his involvement. The real assailant, he told his family, had barged into their motel room, stabbed the visitor and safely fled into the night.
Those family members who believe in him continue to take him at his word.
Her other goal is to one day see her first husband set free. It is an obsession that has made counseling and the use of anti-depressant medication necessary at times over the years. She stays in touch with Davis' attorneys, investigator Church and Davis' parents. And she looks forward to her ex-husband's rambling letters, filled with inaccurate spelling and poor punctuation, which always end with his promise to "love you for every."
"During his trial," she recalls, "he telephoned me from the courthouse every day." And when Brian Davis learned that an execution date had been set, it was Tracy with whom he first shared the news. At the time, she was married to her second husband and pregnant with her daughter.
In the years Davis has resided on Death Row, Tucker has visited him at least once a month, sometimes even more often. At times she's made the trip alone, sometimes in the company of her son and Davis' family. She has an album of smiling photographs, each with the white jumpsuit-clad Davis standing behind glass while his visitors pose in the cramped cubicle in front of him. In some you can see the swastikas tattooed on his chest and arm, a reminder of his early prison days when he was a member of a white supremacist prison gang.
Occasionally her husband will drive her to the prison, remaining in the parking lot during the two-hour visits. On Davis' first execution date, her parents took her to Huntsville. For a time she went weekly with the Arlington mother of another condemned inmate before he was executed. Recently, she made the trip with Dallas' Patricia Springer, the author of several true crime books, who occasionally visits one of Davis' fellow prisoners.
"Tracy's an unusual woman," Springer says. "I think over the years she has convinced herself that if she'd not divorced Brian, if she'd stayed with him, none of this would have happened. She feels a lot of guilt, convinced that she's at least partially responsible for the situation he's now in."
Guilt, justified or imagined, is a common thread that binds Brian Davis' supporters. "He was never physically abused or anything like that as a child," Jim Davis says, "but I regret that he had so little continuity in his life as he was growing up." The elder Davis points to his nomadic 20-year career in the Marines, with stops in Alaska, Virginia, North Carolina, Washington and Vietnam, and the fact that he and Brian's mother married and divorced each other four times.
Nor does he argue against the claims that his son meets the legal definition of mental retardation. "He was loving and caring as a child, but he didn't always use good judgment and had great difficulty in school," Davis recalls. Brian, he says, was never able to read well, and when he did attend school he fared poorly, even in special education classes. He was 16 when his I.Q. was tested at 74.
The Davises, Tucker and T.J., Springer says, are examples of the victimization she's often seen during the research she's done over the years. "The public has yet to understand that criminal acts create victims on both sides," she says. "The justice system and society rightfully show concern for those whose loved one was wronged, while condemning the families and friends of the perpetrator. They're routinely given little consideration by prison officials when they go to visit. Over and over I've seen them treated shamelessly. It happens all the time."
Jim Davis puts it more bluntly: "You're treated like you're a criminal."
Still, while the Davises and Tucker and her son agonize over the state-ordered fate that awaits Brian, the family of victim Michael Foster sees things far differently. "I can't wait until this guy is fried," Foster's older sister, Pat Kupritz, told the Houston Chronicle shortly before Davis' execution was postponed in May.
And though she adamantly opposes the death penalty, Tucker can understand the lingering anger of Foster's loved ones. She's been there. It was in 1985, in Carterville, Georgia, that her older brother, a truck driver with three small children, was shot in the back of the head and killed during a robbery. "I was 15 at the time," she remembers, "and I had a difficult time accepting the fact that someone had done that to my brother, to me, to our family." The suspect later turned himself in, pleaded guilty and served only a brief sentence.
"I was angry about that for a long time," she admits. Today, however, she finds comfort in the fact that the family of her brother's killer was spared the deathwatch she's lived with for a decade, and the nightmares that still occasionally wake her.
The stay of execution, however, only bought Brian Davis and his family a brief reprieve.
Three months later, as the second execution date approached, T.J. stood in the kitchen one evening as his mother prepared dinner. "Do you think it is really going to happen this time?" he asked.
"I didn't know what to tell him," Tracy Tucker recalls.
And so the ordeal continues. Too soon, Tucker fears, the day will come when her son will ask the question again.