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Sympathy for the Devil

The prosecutor called Gary Davis a devil for the brutal murder he had committed. But lawyer VICKI MANDELL-KING discovered that on his long journey toward the death chamber, Gary Davis had profoundly changed. In this gripping story from the Shambhala Sun archives, she talks about the power of forgiveness and a redemption on death row.

Driving down Colorado State Highway 115, that curving road cut between red sandstone cliffs, I did not know what to expect in meeting Gary Davis. Because I knew about his terrible crime, I confess I conjured up a monster's visage. Instead I found a reticent human being, a shy man, one who knew I knew the worst thing he had ever done. He did not know whether I would see that he was far better than that. He did not know I believe that when we trust in the basic goodness of others, we bring it forth.

This is how we began our relationship. As Gary put it, "You used to come in as a lawyer and leave like a lawyer. Later, you came in as a lawyer and would leave as a friend." Throughout the course of his appeal, with each loss, Gary would say, "Well, I didn't give you a lot to work with," referring to the fact that the courts ultimately denied our appeals by relying upon Gary's own self-damning words at his trial.

But for the clemency process, Gary did give us a lot to work with. Although we couldn't point to new evidence or racial distortion of the process, Gary was not the same person who committed the crime for which he received the death penalty. He had rehabilitated and redeemed himself.

Robert Grant, the district attorney who prosecuted this case, was in the habit of calling Gary Davis a "devil." I say Gary Davis was a murderer become mystic. This could sound like naivete or exaggeration, but if you look at Gary's terrible crime you can see how long was the road he traveled.

In 1986, Gary Davis and his third wife, Rebecca Fincham, kidnapped, sexually assaulted and shot Virginia May to death in a field outside Byers, Colorado. The following year, at his separate trial, Davis testified and took full blame for the crimes. In the penalty phase, the jury sentenced him to death. Rebecca Fincham received a life sentence.

In further proceedings in state and federal court, Gary Davis challenged the representation he had received at trial, the Colorado death penalty statute, and related instructions to the jury. His new attorneys, Dennis Hartley and I, presented evidence of equal culpability and mitigation. This evidence was meant not as an excuse, but as something approaching an explanation for this terrible crime.

Comparing background records of Davis and Fincham, experts concluded that Davis' passive personality made it unlikely he was the instigator of the crime. The testimony of family members and experts portrayed Davis as having come from a dysfunctional family and suffering from severe alcoholism. Gentle and hard working when sober, Davis had two ex-wives and children who cared about him. But when drunk, Davis committed increasingly serious crimes.

While incarcerated for a sexual assault conviction, Davis became acquainted with Rebecca Fincham, who wrote and visited him. They were married while Davis was still in jail. Upon his release, Davis realized he had made a mistake in marrying Fincham. They spent nearly the first year of his parole miserable with each other, drinking and delving into sexual perversion. Virginia May was murdered on the last day of Davis' parole.

When our appeals proved unsuccessful, we sought clemency from the Governor of the State of Colorado in the summer of 1997. In wrestling with our clemency petition, Governor Roy Romer acknowledged that Gary had changed, but just not enough to justify mercy.

What did that mean? For those who are judged to have changed, but not yet enough, they simply need a longer life, not an earlier death. Gary appreciated that the governor thought he had changed, and he agreed that his changes did not make up for what he had done-after all, nothing he could do could bring Virginia May back to life. Short of that, Gary's own awareness of how he had changed was enough for him.

During his ten years in prison, Gary Davis had recovered from alcoholism and sexual perversion. He had moved from self-loathing to accepting responsibility for what he had done. He had replaced self-pity with real empathy for the many victims of his crime. Once a danger to society, Gary Davis had become a man capable of serving life imprisonment without parole, as a means of making amends. Once a man who, when drunk, thought he could take a woman's body and her life, Gary Davis would die a man grateful for a four inch patch of sky glimpsed through his cell window.

As Gary described it, it had taken him years to stop thinking like an alcoholic, long after he had stopped drinking like one. Sober, he felt more free than he had on the street, imprisoned by his disease. Along the way, he came to some understanding of how he could have done what he did to Virginia May. Gary did not want to blame his family members for things that had happened in the past-he was glad for their support in the present-but the reality was that the dysfunctional background he could not overcome had twisted Gary's natural personality-thus the follower image and passivity diagnosis. Alcohol released in him the desire to inflict the kind of pain he himself had suffered.

Despite his testimony at trial that he had done the shooting, in subsequent years Gary had been vague about his role in the crime and his memory of it. Last summer Gary admitted that he remembered that he, and not Rebecca Fincham, had done the shooting. He made this admission, trusting that it would make no difference to us, but would make a difference in the peace with which he could face death.

The empathy Gary Davis felt for Virginia May's family was not contrived because of the then-pending clemency request. It was the direct result of the death of his daughter, Janelle, of brain cancer. Gary said that when he heard Janelle's voice on the phone saying, "It hurts, Daddy," it was like a stake through his heart. He could not stop the pain, cradle her head in his arms, or go to her. In that moment, he better understood how the May family must have felt, knowing what had happened to Virginia May in that field in Byers and being unable to protect her or stop it.

Along with insight into himself and the crime, Gary expressed a simple wisdom, a sense of spirit. After I saw the Dalai Lama when he visited Colorado last summer, I told Gary that a friend had expressed mild disappointment that this spiritual leader had not seemed as wise as she had expected. For a relatively uneducated man, Gary had a way of turning a phrase: "Seems to me your friend was listening with her ears instead of her heart."

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