Sympathy for the Devil

Gary Davis was called a devil for the brutal murder he had committed, but on his long journey toward the death chamber, Gary Davis had profoundly changed.

Vicki Mandell-King
1 September 1998

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.”

At the start of another visit, Gary was bursting to tell me something he had experienced. He had been looking out the window when suddenly it seemed as though the sky, the mountains, the trees, the sound of jack hammers in the road, the clang of the door cell, the bug climbing on the wall—all were one, all somehow connected.

One day Gary was watching a golf match on his cell television. During the silence as the golfer concentrated on his shot, a meadowlark began to sing. Gary had not heard its song in years. Rather than wish to hear more or yearn to be in the fields free, Gary said the song was “mighty pretty,” and it made him happy to hear that song again before he died.

What could work these profound changes in Gary Davis, this healing of a human being? It was solitude; stripped of everything, Gary had nowhere to turn but inward. It was lawyer Dennis Hartley, whom Gary knew he could trust as being direct, honest and real. It was love and support from his family and friends, with whom Gary had become reunited through the investigation of this case. Most of all, the sincere belief in a compassionate God gave Gary Davis the courage to face himself and to face his death.

As the execution date drew near, I asked Gary whether he was being his typical passive self in going along with the execution, in not wanting to fight. Gary was adamant that he did not want us to do anything merely for delay, or even for the sake of establishing a positive precedent. Without hesitation, he replied, “No, for the first time I feel in control of my life, and I can control how I face my death.” During his last weeks, Gary probably had more visits, more human companionship, than he’d had in the entire ten years of his imprisonment. Prison officials granted Gary’s request for contact visits with Rita, his pen-friend from Ireland, and with family members—one of his ex-wives, his two surviving daughters, and two of his three sons. At the end of long days with us, Gary seemed alternately drained and invigorated by the effort of reassuring his family and keeping up a brave front. I worried about the disruption of his solitude, for it was in solitude that he found not just sobriety but his strength. He would need all his strength in his final hours.

I saw Gary on the morning of the execution. He knew what he had come to mean to me. As he said, “Now you come as a friend and you leave as a friend.” As I started to go, Gary stood, leaning over, his hands on the ledge in his familiar pose, and said, “See ya’ later.” I turned, and using a phrase of his that has become part of my own lexicon, smiled and said, “That’s for sure.”

The night of the execution, prison officials came to the hotel to transport Dennis and me to the prison. It was all quite cloak- and-dagger, very high security. As we walked through the gate, I wondered what I could say to the May family. I had written them a few years before and received only a bitter response, one that of course I understood, but that made me feel so sorry for their pain. Although prosecutor Robert Grant had angered me often over the years, this night he graciously introduced us to Virginia May’s father and brother.

Once inside, we milled about waiting for the execution to begin. The media representatives were in one area, the prosecution and victim’s family in another. Those in blue shirts, the guards, came to talk with Dennis and me. One told us how honored he was to have sat with Gary the night before, how brave and kind Gary had been. Another voiced his opposition to the death penalty.
As the witnesses began to line up—I was designated to be first—another officer squeezed my hand and whispered, “Be strong.”

When we walked into the witness room, the curtains were closed. I was directed to the second, higher, row of seats, and to the seat closest to the wall. I was praying for strength and grace for Gary and myself. When the curtains parted, I could see that my seat was parallel to Gary’s head. All he had to do was turn his head to the right to find me. Doing so, he nodded lightly, closed his eyes, and slowly turned away.

I had thought Gary would say a few last words, but later I learned he had decided not to—he had said all he needed to already.
Waiting, at first I did not realize that the poisons had begun to flow into his arms, traveling to his lungs, finally reaching and stopping his heart. But as his face changed color I knew. With this execution, the state of Colorado had resumed, after a thirty year hiatus, killing those it judges to be the worst among its citizens.

People ask, “Do you think Gary Davis suffered?” I know he suffered for his crime. It pained him to know that many people thought he was so terrible that they wanted him to be killed. He was naturally apprehensive about the method and hoped the poisons would work swiftly and surely.

The sterile, antiseptic, hospital-like scene of Gary Davis’ execution was horrifying in its blur of healing and harmful images. How else would we have it? An execution would be less ambiguous if death came by firing squad or public hanging—easier to tell the good from the bad—but it was Gary lying there strapped to the table, and 1 would not have had him endure more fear and pain, just to teach proponents of the death penalty about its inhumanity. Instead, it was the way Gary Davis faced his death that demonstrated the senselessness of such a punishment.

The day after the execution, the warden and 1 talked. She told me that, up to the very end, Gary was reassuring her and the staff that they should not feel badly for what they were doing. Gary had hoped his knees would not betray him walking into the execution chamber. They did not—the warden said he was strong and calm.

Short of saying, “I cannot and will not do this,” prison staff defined their duty as treating Gary with kindness, respect and dignity.

I am grateful for this. On one level Gary made the process easy for them—no unseemly outbursts or last minute appeals—yet the way Gary conducted himself may have made it harder for many of the staff. Some of them had come to care.

The family of Virginia May could not forgive Gary Davis. He understood and accepted that they could not do so. He hoped that his death would give them the closure they sought, though he doubted it would serve that purpose. How can we judge? They are justified in their rage, grief and bitterness. After all, what would we do were we to lose a loved one?

Yet there are family members of victims, like members of Murder Victims Families for Reconciliation nationwide, who have found another way. They have asked, “What would my loved one want?” After listening, they have taken the stand, “Not in my loved one’s name.” These courageous people feel challenged to heal through forgiveness, and to celebrate their loved ones in acts of compassion. I don’t know if I could do this. While I hope I could, mostly I hope that I am never so terribly tested.

There is a way in which the phrase “death penalty” is an oxymoron. Death is part of life, a release, a gateway to another life. But death is a penalty, whatever our private way of dealing with it, when it is imposed with the intention of punishing. To use death for such a purpose is wrong. Its purpose is far holier than that.

Death is a teacher. If we accept that change is constant and death undeniable, if we see death’s hand weaving a pattern of shadow and light in our lives, if we allow the certainty of loss to enrich rather than detract from our experiences—then in facing death, we learn how to truly live. We come to believe that our task is not to judge ourselves and others but to practice forgiveness.

Many have suggested that, if it is true that Gary had changed, that change occurred because he was facing his execution. For them, Gary’s rehabilitation becomes a justification for the death penalty. It may be that as death approaches there is a quickening, a clarity. But the changes in Gary Davis began long before this summer and had their origins not in fear of death, but in the forgiveness he found in his conception of God, in the eyes of others, and within himself. At the same time, the pending execution motivated people to show concern and support in a way they had not done before.

At present a majority in our society supports the death penalty. It does so for a variety of reasons—the right to retribution, the perceived inadequacy of protection without this penalty, and the biblical, legal and economic references. Common to all these reasons is lack of faith in the power of forgiveness and compassion. The belief that a God could forgive him is what enabled Gary Davis to start down the long road of admitting responsibility, feeling remorse, gaining insight, suffering consequences, and making amends.

I believe compassion can change the perpetrators, and it can help to heal those who have been harmed. I believe forgiveness can overcome fear, and that compassion breeds courage—but then I have held the hand of a murderer. Doing so, I am better able to embrace myself and others. Thank you, friend. ♦

Vicki Mandell-King

Vicki Mandell-King works at the Federal Public Defenders Office for Colorado and lives in Boulder County with her family.