[Deathpenalty]death penalty news----OKLA., MASS.
rhalperi at mail.smu.edu
Thu Jul 21 17:04:42 CDT 2005
Oklahoma Railroad----Accused of killing a cop's son, Emily Dowdy learns
the hard way that in Oklahoma City justice isn't blind. It works for the
Emily Dowdy graduated with honors from Hillsboro High School in 1991.
Charlie and Nancy Jackson spent more than $140,000 defending their
daughter; 45 percent came from supporters and fund-raisers, the rest from
loans and their savings.
Oklahoma County prosecutors used testimony about this photo of Dowdy and
Jon Mulac tailgating at the OU Big 12 Championship on December 2, 2000, to
prove she was an unrepentant party girl. The "beer" in Dowdy's hand is
actually a hotdog bun.
Emily Dowdy walks into the small cinder-block room and, using her left arm
to lift her right, shakes hands. At 5 feet 8 inches and 120 pounds, Dowdy
appears skinny and slightly hunched, her blue eyes a bit wary. Her hair is
no longer blond but brown, chopped off and spiky in a way that might be
fashionable if she weren't wearing gray cotton pants and a gray shirt with
the word "inmate" stenciled across her thin back.
For Dowdy, 31, life on the inside seems surreal. An environmental designer
who once worked for the Dallas firm Scheirman & Associates, Dowdy now
lives in a tiny cell with a woman convicted of murdering her spouse. Each
day passes to the bark of an intercom calling "counts" and "movements" of
prisoners at this maximum-security prison near Oklahoma City.
Her life can be divided into two segments: before and after The Accident.
In between, there's a black hole in Dowdy's memory. In it, a young man
died. Dowdy emerged alive but damaged, pulled from her flaming car and
strapped onto a backboard, her neck broken.
In that black space, Dowdy was forever transformed from a hardworking
college student into a convicted killer, depicted by Oklahoma County
prosecutors as an unrepentant party girl who drank, drove and destroyed
the life of Ryan Brewer. The 20-year-old son of a police captain, Brewer
was caught in the path of Dowdy's car as she barreled the wrong way down
an Oklahoma road one dark and drizzly morning in May 1999.
Dowdy, her lawyers and supporters believe that she killed Brewer after
being slipped the date-rape drug gamma hydroxybutyrate (GHB) at an OKC
dance club, and then fed more alcohol, assaulted and put into the front
seat of her car. Dowdy has no memory of what happened for about four
hours; amnesia is a side effect of the drug. Though no GHB was found in a
blood test, that doesn't mean it wasn't there, since the drug disappears
quickly from victims' bodies.
6 years and 3 trials later, the life Dowdy once dreamed of--career,
marriage and children--is over. The jury in Dowdy's 3rd trial in April
2004 convicted her of manslaughter and slammed her with a 40-year
sentence, harsh punishment for someone who had never been charged with DWI
or any other crime.
Brewer's death was a tragedy, but was justice really done? An
investigation by the Dallas Observer reveals that Dowdy has been dragged
through a judicial process rife with unethical behavior by members of
Oklahoma County's law enforcement "brotherhood" determined to punish a
Prosecutorial misconduct ended Dowdy's first trial; the conviction and
25-year sentence in the second trial were overturned because the judge
barred evidence of GHB intoxication. In her third trial, evidence shows
the prosecutors manipulated witnesses and evidence, falsely portraying
Dowdy as a remorseless party girl who didn't wear panties and continued to
drink and drive after the accident. The judge's favoritism toward the
district attorney's office was astounding.
"I've never witnessed such misconduct in a courtroom in my life," says
Trinka Porrata, a former Los Angeles police officer. Perhaps the foremost
authority on GHB addicts and victims in the country, Porrata teaches law
enforcement officers about the drug's effects and how to investigate cases
involving GHB. She's testified in numerous trials, most often for the
"There were so many things that were inappropriate," Porrata says. "The
sad thing about the whole case is that it's no longer about a cop's kid.
It's now about the incestuous, petty, screwed-up, vindictive, bizarre
attorney and judge community in that city."
Says Frosty Troy, editor of the Oklahoma Observer, "The girl you are
talking about found herself in the middle of the rottenest criminal
justice system in the United States."
The Oklahoma County District Attorney's Office has received scathing
criticism in recent years from sources as disparate as former Los Angeles
police Detective Mark Furhman and Amnesty International, which condemned
its repeated misconduct in death row cases and draconian sentences in
other crimes. Last December, a jury sentenced one man to 6,000 years in
prison for armed robbery. Amnesty International singled out Dowdy's second
trial and sentence of 25 years to illustrate how judges allow highly
inflammatory statements from victims' families to influence juries.
Under the 21-year administration of famed District Attorney Bob Macy, the
county racked up the highest rate of death penalty convictions in the
country, sending 73 people to death row. In his 2003 book Death and
Justice, Furhman says that Macy would show up at the scene of terrible
crimes and handle opening and closing arguments in death cases; assistant
district attorneys did the legwork and prepped him before trial.
Macy had a bag of tricks: misrepresenting facts, hiding exculpatory
evidence, using "fire and brimstone" in closing arguments and breaking
into tears at just the right moment for maximum jury impact. Macy and his
assistants would invent scenarios to explain away evidence that didn't fit
their theories. And they often relied on false or unscientific testimony
from Macy's favorite forensic chemist, Joyce Gilchrist, of the Oklahoma
City Police Department lab.
An African-American, Gilchrist was dubbed "Black Magic" by local lawyers.
Police and prosecutors loved her. Defense attorneys feared her. In 2001, 2
years after Dowdy's accident, Gilchrist came under investigation for her
testimony in more than 1,500 criminal cases. Her lab had no quality
controls, and evidence handled by Gilchrist was often, in Furhman's words,
"twisted, distorted, mishandled, mislabeled, lost and just plain
Gilchrist was fired, but it had taken years for the Oklahoma County legal
community to do anything about her conduct.
In Oklahoma County's relatively small pond, anyone brave enough to stand
up to Macy could pay a heavy price. Appellate judges repeatedly condemned
Macy's tactics, but The Daily Oklahoman--owned by the ultra-conservative
billionaire Ed Gaylord and family and in 1999 named the "worst newspaper
in America" by the Columbia Journalism Review--applauded his
On April 30, 2001, Amnesty International released "Old Habits Die Hard," a
searing report on death cases in Oklahoma. Not only were defendants denied
fair trials, some were demonstrably innocent. Clifford Henry Bowen spent 5
years on death row for the 1980 murders of three people. A federal appeals
court overturned his sentence, saying that Macy suppressed evidence
showing a cop was the killer. Jeffrey Todd Pierce was sentenced to 65
years for a 1985 rape. After 15 years in prison, a DNA test proved his
innocence. In May 2001, soon after he was notified of the DNA results in
the Pierce case, Macy announced his early retirement.
But Macy left behind a well-oiled machine "whose ambition seems to have
been racking up as many convictions as possible rather than seeing that
justice is done," Furhman writes. "He trained a generation of prosecutors
who continue this practice." Some Macy-trained prosecutors have become
district court judges.
Dowdy wasn't facing execution, but she was prosecuted by Macy's machine.
Prosecutors in all 3 trials dipped into their mentor's bag of tricks.
Perhaps the most egregious came at the end of the 3rd trial: manipulating
a witness into testifying about seeing a post-accident newspaper photo of
Dowdy and her boyfriend at a tailgating party holding beers. Jurors later
cited the photo as the ultimate example of Dowdy's lack of remorse.
Prosecutors never produced the actual picture; it revealed the couple
holding not beers, but hotdog buns.
Both judges who presided over her trials once served as assistant district
attorneys under Macy. Judge Susan Caswell, who handled Dowdy's second and
third trials, is married to a police officer. Her campaign literature
showed Caswell with Macy and promised she would be an advocate for
victims' rights. One Oklahoma appellate judge wrote that Caswell should
recuse herself not only from Dowdy's retrial, but all criminal trials.
Caswell refused to step aside, and the transcript of Dowdy's 3rd trial is
replete with examples of Caswell's bias toward the prosecution. Dowdy's
appellate attorney Mark Henricksen of El Reno, Oklahoma, has filed an
appeal citing the hotdog bun picture and numerous examples of
"I don't think I've ever seen anything like it in all my years of
practice," Henricksen says. "In this case, I think law enforcement didn't
do any self-regulation in order to make sure they got both a conviction
and a long sentence."
Dowdy's prosecutors manipulated witnesses, misrepresented facts and
twisted scientific testimony. Taped interviews with five jurors, obtained
by the Observer, showed those tactics distorted their perceptions of the
evidence and led to Dowdy's harsh sentence--as did Dowdy's demeanor in the
Dowdy's frozen expression seemed unemotional and uncaring. The prosecution
painted her as an ice queen who didn't care that she killed Brewer. Dowdy
says she was in shock at being on trial for manslaughter. Though able to
feel deep sadness for the life she took, Dowdy cannot mentally put herself
in that car on that road.
There's substantial circumstantial evidence Dowdy was drugged. If Dowdy
was the victim of GHB, not only has the life of a young man been lost, but
a young woman will pay for something she is not responsible for.
"She was totally in the wrong, but she had no control over herself," says
Dick Frye, who investigated the case for Dowdy's lawyer and first raised
the issue of GHB. "She was a victim who was made into a perpetrator."
By the time the 2 women arrived at the Crosswinds Club a little after 11
p.m. on May 22, 1999, the tiny disco was packed. Tucked into an apartment
complex, the Crosswinds was known for playing high-energy tunes, and Dowdy
loved to dance.
Dowdy and co-worker Katie Hillin made their way to the crowded bar. Hillin
wedged in first and asked Dowdy what she wanted.
"Cape Cod," Dowdy yelled over the noise. Hillin turned with two shot
glasses and handed Dowdy one. "What's this?" Dowdy asked.
"Jgermeister," Hillin said and tossed back her shot.
Dowdy hadn't asked for the liqueur, but she gulped and grimaced at the
pungent flavor. Hillin turned back to the bartender and got their
cocktails. The women took their glasses to the dance floor and joined in.
Dowdy and Hillin weren't good friends. Both attended Oklahoma University
in Norman and worked at the Marriott Postal Training Facility, staffing
the front desk of the hotel where postal employees came to train. Hillin
was new, but Dowdy had worked there 20 to 30 hours a week for almost 2
Dowdy's parents, Nancy and Charles Jackson, own an insurance business in
Hillsboro and raised their four kids in the country. Though the Jacksons
made the $150 payment on their daughter's used car, Dowdy paid most of her
own college expenses. She hadn't become a full-time college student until
age 23 and was focused on getting a degree in architecture.
On the afternoon of May 22, 1999, Dowdy was making plans to move back to
Texas, thrilled to get a job as director of a Presbyterian church camp.
With her expenses paid, Dowdy could sock away her salary. She was looking
forward to a perfect summer.
A group from work had made plans to go out that Saturday night, but by 8
p.m. everyone else had flaked out. Dowdy didn't want to cancel on the new
girl. Around 10 p.m. Dowdy picked up Hillin, who answered the door with a
gin-and-tonic in her hand, her 2nd of the evening. Dowdy declined Hillin's
offer of a drink.
On the Crosswinds dance floor, Dowdy noticed a guy homing in on her.
Muscular and tanned, he traded a few words with her, though she couldn't
hear much over the music. She wasn't particularly attracted to him, later
recalling his "buggy" eyes.
Abruptly, Hillin gestured that she felt sick, and the girls made for the
club's restroom. Dowdy helped Hillin cut in line to the toilet where she
repeatedly vomited. Mortified, Hillin waved Dowdy out of the room while
she cleaned up. When Dowdy checked on her a few minutes later, Hillin
insisted she felt better. They returned to the bar, and Hillin tried to
order another gin-and-tonic.
Alerted by a female bar-back who had seen Hillin in the bathroom, the
bartender refused to serve her. Dowdy ordered another Cape Cod; she'd put
down her drink when Hillin got sick and had lost track of it. (Dowdy later
told investigator Frye she thought the muscular man brought her the drink,
but this was never brought out in court.) A short time later, Hillin's
nausea returned. They agreed to leave.
Hillin edged down the club's narrow staircase, followed by Dowdy, who
noticed the man from the dance floor behind her. He trailed as they walked
to Dowdy's car.
When Dowdy unlocked the passenger door, Hillin insisted she just needed
fresh air and urged Dowdy to return to the club. Until that point Dowdy
had felt OK--not even a buzz.
Closing the door was her last memory of the evening.
Hillin and Dowdy had left the club to go to the car between 11:30 p.m. and
midnight. For the next few hours, Hillin was passed out, waking up a few
times long enough to vomit. About 1:30 a.m. someone apparently called the
police to say a woman was puking in the parking lot. Hillin was picked up
by Officer Kevin Tucker and booked into detox at 2 a.m., leaving Dowdy's
car in the lot.
Tucker later testified that security guards had looked for Dowdy in the
club but that she wasn't there. Bartender Michael Szekely confirmed that
he had served the 2 women and later watched to ensure Dowdy didn't give
Hillin another drink. Szekely said he didn't see either girl return.
The next sighting of Dowdy was at 3:28 a.m., when a motorist called the
highway patrol to report someone speeding westbound in the eastbound lane
of Highway 240 near Interstate 35.
Another driver, 22-year-old mechanic Oscar Ramirez, was parked under a
railroad trestle of Highway 240, checking his oil when Brewer's eastbound
car passed. Moments later, Ramirez heard the explosion of metal slamming
head-on into metal.
Seeing flames, Ramirez roused his buddy, passed out after too much to
drink. Another car passed them and slammed into the two wrecked vehicles.
That motorist pulled to the side of the road with only minor injuries.
The men ran to Dowdy's burning vehicle and pulled her out through the
window. As they laid her unconscious on the pavement, Ramirez heard the
flooosh of the car being engulfed in flames. "She was gasping for air like
a fish on the bank," Ramirez says. "I thought she was going to die."
Paramedics would later describe Dowdy as cursing and uncooperative, but
Ramirez heard only tortured breathing.
The two buddies tried to help Brewer, but the accident had pinned him
inside his car. Moments later, Oklahoma Highway Patrol Trooper David King
arrived. He held Brewer's head and neck until paramedics arrived and
pronounced the young man dead.
As emergency vehicles and patrol cars arrived, Ramirez noticed a shift in
the attitudes of the law enforcement officers. For years he believed that
the victim was the son of a highway patrol trooper because their anger was
palpable. But the victim's drivers license revealed he was the son of an
OKC police officer named David Brewer. One of their own had been killed by
Dowdy's 1st lawyer, Beau Williams, hired private detective Dick Frye to
Frye believes the initial investigation of the crash was botched: Dowdy's
car wasn't processed; her clothes were thrown away at the hospital; and no
rape kit was done though a blood clot in her urethra indicated possible
Frye interviewed Dowdy and her neurosurgeon. He put together Hillin's
symptoms, Dowdy's abrupt memory loss and the sequence of events. After
local narcs told him a nearby health club had just been busted for drugs
that included GHB, Frye concluded Dowdy and Hillin had been "poisoned"
with the date-rape drug.
An intriguing theory, but Williams had no solid evidence to back up Frye's
conclusion. A test of Dowdy's blood drawn at 5:30 a.m. tested negative for
That isn't surprising. Found in the body in minute amounts, gamma
hydroxybutyrate can disappear from blood in as soon as 2 hours and from
urine in six to 12. (No sample of Dowdy's urine had been saved.)
Developed as an anesthetic in France during the '60s, GHB was deemed too
unpredictable for surgical use, its range of dose too narrow, its side
effects too bizarre. A bottle cap of GHB can trigger euphoria, sexual
stimulation, flailing movements of arms and legs, agitation and amnesia.
(See "Knocked Out," December 19, 2002.)
Alcohol magnifies its effects.
Its rapid onset and amnesia make GHB a perfect tool for sexual predators:
An odorless clear liquid, GHB has a salty taste that's easy to disguise in
a cocktail or liqueur, and it's easy to dose a drink with a quick squeeze
from a plastic bottle. Victims can appear to interact with their
attackers, talk, even drive, but they have no awareness of what they are
At the accident scene, Dowdy's behavior had included gasping for breath,
slurred speech and unconsciousness alternating with agitation. Her
neurosurgeon would testify that her symptoms were consistent with GHB.
Though GHB now is illegal, it is easy to make using recipes found on the
Internet. By the time rape victims figure out what happened--if they
do--it's too late to find evidence of the drug, though prosecutors in San
Diego and Dallas have managed to convict GHB predators without positive
The drug emerged as a problem in Oklahoma as early as late 1995, when six
people overdosed on GHB in the space of a few months. Keith Allen, owner
of Brothers, a campus hangout near OU where Dowdy later worked, heard
about GHB being used for sexual assaults in the late '90s.
"It was going on here at some bars [during that period]," Allen says. A
few bartenders and doormen were using it on college girls in Norman. "I
think it happens more than anyone realizes." One of his current waitresses
told the Observer she was drugged at an OKC bar last summer. Her friends
prevented three guys from hustling her out of the club.
Calls about GHB to Oklahoma County's poison control peaked at 27 in 1999,
but virtually no investigators were trained to recognize its symptoms.
Highway patrol Trooper David King knew nothing about the drug when he
arrived at the accident and tried to save Brewer's life. King saw a drunk
girl and a dead boy and drew the logical conclusion.
King got to the ER at 7 a.m. Dowdy reeked of alcohol. He had already
ordered a blood test. Without telling Dowdy she was under investigation
for a fatality accident, King asked where she had been and how much she
had had to drink. Dowdy answered in a murmur: She'd been with Katie
Hillin. They went to the Crosswinds. She drank 2 Cape Cods. Hillin got
sick. She didn't remember what happened after that.
He read Dowdy her rights and then repeated the questions. Dowdy waived her
rights, King said, and gave the same answers. (The prosecutor would later
make a big deal out of this severely injured, mentally incapacitated woman
simply answering King's questions instead of volunteering information,
insinuating that was a sign of guilt.)
King handed an arrest warrant to Dowdy's housemate Cari Harris. Notified
by the hospital, Harris had called Dowdy's boss Dan Gallant; both had
arrived before King, and neither believes she had the ability to
understand what was going on.
Dowdy doesn't remember speaking to King, Harris or Gallant in the ER. Her
first memory was waking up on her back with her head immobilized in a
"halo" device and in excruciating pain. She had what's known as a
"hangman's fracture" of the neck; her neurosurgeon wasn't sure Dowdy would
survive the operation.
For days Dowdy didn't know that someone had been killed in the collision.
On May 30, Dowdy's mother told her about Brewer's death. She had to call
the nurse for medication to calm down her distraught daughter.
After rehabilitation, Dowdy returned that fall to OU and her job at the
postal training center. She was determined to graduate, but her right arm
was damaged, making drawing and lifting painful. At work, Gallant says,
"she was not the same girl."
Prohibited from drinking or driving, Dowdy had to rely on friends to get
to work. After a few months, she took the job at Brothers so she could
walk to her classes and apartment; she didn't tell her boss about the case
or her disability. Allen found out about it when King came into Brothers
and saw her. Dowdy's work "deteriorated," Allen says, and she left to take
another restaurant job.
In March 2000, Dowdy was working a second job in the school gym when she
met Jon Mulac, a former OU football player pursuing a graduate degree. She
told Mulac everything.
"Emily was beautiful, very intelligent, very quick-witted, very
goal-oriented," Mulac says. They both graduated from OU in June 2000. "I
thought she'd be worth sticking by her side. She was scared, but she was
always confident that the facts would come out on this GHB thing and that
the jury would see that."
District Judge Ray Elliott was furious. "You caused this," he said,
pointing to prosecutor Steve Deutch.
Dowdy's first trial for manslaughter began August 28, 2000, and ended two
days later. After learning a police officer had talked to the judge about
the case outside the courtroom, Dowdy's attorney Beau Williams moved for a
mistrial. Elliott accused Deutch of sending the man to talk to him, but he
had no choice but to grant Williams' request.
Williams may have felt relief. Elliott had told her that "if you had an
expert that said this crash was caused due to a flash of light from a UFO,
that would be more admissible" than her proposed defense: involuntary
intoxication as the result of GHB.
A year later, when Dowdy's 2nd trial began, Deutch was gone, and two women
had taken over: Christy Miller and Connie Smotherman. And on the bench:
Susan Caswell, arguably the worst judge in the Oklahoma County district
In a building where judges are known for high-handed, arrogant and
unethical behavior--based on opinions issued by judges on the Oklahoma
Court of Criminal Appeals--that's saying something.
In 2002, Judge Elliott referred a racketeering case to a higher court,
saying that if the allegations against Susan Caswell and another judge
were true, "it would position a very dark cloud over this
courthouse...These allegations attack the very foundation which supports
this profession." They were true. The dark cloud was Judge Caswell, and
the details reveal the cozy relationship between the district attorney's
office, Caswell and a few of her cronies on the bench.
It began as a 26-count indictment with 9 defendants. As the trial was
about to begin, the district attorney's office asked Special Judge Charles
Hill for a continuance. All of the defense attorneys opposed the motion.
Hill denied the state's request.
Prosecutors did an end run to Caswell and another judge who--without
jurisdiction or notice to defense attorneys--yanked the case from Hill's
court. They assigned it to another judge, who promptly declared a 152-day
Caswell had no authority over the case. The defense filed a motion
alleging the judges' actions presented "a systemic and systematic,
fundamental and apparently continuing pattern of rule-breaking, judge
shopping and general prosecutorial and judicial misconduct so pervasive as
to taint the Oklahoma County judicial system."
Appellate judges ruled in favor of the defense; the racketeering case was
ultimately dismissed as a result.
Even before Caswell took the bench in January 1999, her ability to be a
neutral, unbiased judge was in doubt. The wife of an Oklahoma City police
officer and a prosecutor under Macy for 13 years, Caswell ran for election
with a promise that she would "continue to 'fight' for victims' rights."
That troubled criminal defense attorneys whose clients are innocent until
In the intervening years, she has acquired a reputation as a "prosecutor
in a black robe." Notorious for rolling her eyes and grimacing as defense
attorneys speak, Caswell makes her feelings plain.
In July 2000, the Oklahoma Court of Criminal Appeals ruled 4-0 that
Caswell should recuse herself from a child abuse trial because her
campaign literature made her appear biased. Judge Charles S. Chapel went
further, saying she should remove herself from all criminal trials.
A few months later, Caswell was disqualified from a high-profile murder
case. At the request of the district attorney's office, she had ordered
the draining of a lake to find a murder weapon and gave repeated orders
with no notice to the defense, delaying the trial for months.
Mickey Homsey, the defense lawyer in that case, said in his motion to
remove the judge that walking into Caswell's courtroom was like entering
the "district attorney's annex."
"I agree," concurred Judge Chapel. "In these proceedings, Judge Caswell
turned her office into an investigative arm for the district attorney
...Indeed, there are many serious and scary problems in this record, but
the most serious difficulty is that in her zeal to assist the prosecution,
this judge unilaterally and illegally denied the defendant in this case
the benefits of our adversarial system."
This appellate bitch slap didn't faze Caswell. She learned how trial
judges behave under Macy.
In October 2000, Dowdy petitioned the court for permission to move to
Kansas City. She wanted to get a job and live with Mulac until the trial.
The court agreed as long as Dowdy didn't drive and was on a device called
a Sobrietor. When it blared three times a day--at 7 a.m., 9 p.m. and 11
p.m. --Dowdy had to speak and blow into it. If the device detected
alcohol, it notified officials through a phone line. Dowdy never failed a
But that's not how it would appear to the jury in Dowdy's 2nd trial, which
began January 8, 2001.
The transcript reveals that Caswell at every turn favored the prosecution.
At times, the assistant district attorneys didn't even have to object. The
judge did it for them, once going on for 10 pages presenting the state's
arguments on the admissibility of evidence without prosecutors ever saying
a word. At times, Caswell's rulings were contradictory, always to the
benefit of prosecutors.
Dallas-area toxicologist Gary Wimbish testified outside the presence of
the jury that Dowdy's blood alcohol wasn't high enough to account for
someone driving the wrong way on the interstate for 2 miles.
Wimbish believed Dowdy had been slipped GHB sometime before midnight, "had
lost her will" and was given more to drink. At the time of the accident,
Dowdy was functioning "robotically" because of the double whammy of
alcohol and GHB. As for evidence of the GHB, Wimbish pointed to:
Dowdy's "pristine" memory loss, inconsistent with alcohol blackout or
head trauma--Dowdy described it like the loss of memory she'd had when
previously given surgical anesthetic
Dowdy's disappearance from the bar between midnight and the accident
Hillin's dramatic symptoms, which were consistent with GHB, not the
quantity of alcohol she had consumed
The prosecutors countered with the fact that Hillin got violently sick
well before Dowdy's memory loss, but GHB is notorious for affecting people
in different ways. Alcohol exacerbates symptoms, and Hillin had consumed
two gin-and-tonics by the time they reached the club. Dowdy had no alcohol
in her system.
And it was impossible to say which drinks were dosed, the cocktails or the
shots. (Jgermeister and Goldschlager are notorious for being used by GHB
rapists because the strong taste disguises the drug.) Did each woman drink
the same amount of their cocktails? Did each drink get the same dose?
Caswell would allow none of it, repeatedly admonishing defense attorney
Williams to present only facts that could be proven, not "speculation" of
how GHB might have affected Dowdy.
But when it came to the prosecution, Caswell allowed Miller and Smotherman
to elicit testimony from witnesses that it is "common" for drunken drivers
to say they had only two drinks, that criminal defendants lie and that
Dowdy's memory loss could have been caused by anything from alcoholic
blackout to head trauma. All rank speculation.
Caswell barred any testimony about involuntary intoxication because "there
has been no evidence presented by this defendant that proves beyond a
reasonable doubt that this defendant had GHB in her system."
Caswell's conduct at times was surreal. At one point, the judge refused to
let Williams recall a witness "just because you forgot to ask them a
question." Williams hadn't forgotten; the judge had barred her from doing
so. Williams flailed about, stymied by the judge, prosecutors and her
inexperience in criminal trials. Damaging evidence was admitted;
mitigating evidence was excluded.
Inexplicably, Williams had called off investigator Frye. (Williams
couldn't be reached for comment.) No one interviewed the Crosswinds'
doorman, the bar's security guards, the other bartender or the female
bar-back. And Williams had interviewed few of the witnesses. But Miller
and Smotherman had contacted key people and prepped them for the witness
Dan Gallant, Dowdy's former supervisor, thought he was going to be
subpoenaed by the defense. "I thought Emily was a great girl," Gallant
says. "She had a great personality, was friendly, very upbeat. She was
going to college and did the normal college things."
But he was contacted by Miller, who told him Dowdy was claiming she was a
teetotaler. Gallant knew that wasn't true, so he agreed to testify.
(Miller was on vacation and couldn't be reached for comment.)
Miller also contacted Scott Perry, a self-described "fair-weather friend"
who had gone on a ski trip with Dowdy and seven others, to ask about
Dowdy's finances. "They [the prosecutors] were really trying to imply that
she was easy," Perry later told Frye, "that she'd gotten her money in
unscrupulous ways and...they were really trying to tear her down."
Perry had his own opinions about Dowdy. Though he hadn't seen her in a
year, in his opinion, Dowdy didn't seem contrite. And she'd invited Perry
to meet her socially at Brothers. He thought Dowdy's working there was
"inappropriate" because it served alcohol.
Both Gallant and Perry would give damaging testimony, but the most
important witness was Hillin.
Down for the Count
Katie Hillin, 28, now works for an event planner. But in 1999, she worked
at the postal training center. Hillin didn't care for most of her
co-workers, but she liked Dowdy. Everybody liked Dowdy, who was upbeat,
outgoing, friendly and nonjudgmental.
Hillin's memory of the evening tracks closely with Dowdy's until she got
sick. Neither woman has a good sense of timing for events that night.
After they went to the dance floor with their cocktails--"it could have
been an hour; it could have been 15 minutes"--Hillin felt suddenly hot,
then very nauseated.
"I felt really, really drunk," Hillin says. "I've been intoxicated, but
not like that. I couldn't even stand up. Emily came into the bathroom with
me, and I couldn't get off the floor. I was throwing up. I thought, 'I
can't believe I'm this drunk and I've only had three drinks and a shot.'"
The prosecution portrayed this sudden onset as the result of too much
booze and too little food, but Hillin says it was something she'd never
felt before or since. She now believes she was drugged.
After getting to the car, Hillin urged Dowdy to go back to the club,
saying she just needed some air. Then Hillin passed out.
At about 1:30 a.m., someone supposedly called the police. A cop arrived
and saw Hillin vomiting. After the officer took her to detox, the feelings
abruptly vanished, another hallmark of GHB. Snapping her fingers, Hillin
says, "Everything cleared up just like that."
Hillin left detox the following afternoon and called the office trying to
find Dowdy. "We had agreed that we wouldn't stay out late because she had
to work in the morning," Hillin says. She learned then about the wreck.
That night, Hillin got a visit from Trooper King and related what she
could remember of the evening.
Days later, Hillin visited the hospital to see Dowdy, who still hadn't
been told about Brewer's death.
"She was kinda in and out of it," Hillin says. "I got really upset and
started crying. She took my hand and told me it was OK. She was really
strong." Hillin asked what had happened. "I don't remember," Dowdy said.
>From the moment she first spoke to King, Harris, Gallant, Hillin and
others in the hospital, Dowdy has maintained she remembers nothing after
putting Hillin in the car. King testified that he didn't think Dowdy was
"hedging," but Smotherman repeatedly portrayed Dowdy's memory loss as a
lie to get out of paying for her crime.
When Dowdy returned to work in September 2000, they never talked about
that night. "She was strange; I was strange; my co-workers were strange,"
Hillin says. She left that job a month later.
Hillin got a visit from prosecutor Miller. Polished and gung-ho, Miller
was to the point. "You could tell she's trying to make a name for
herself," Hillin says. "She just thought Emily was a drunk driver and
someone has to pay. GHB was not a factor for her."
Beau Williams antagonized Hillin on the stand by suggesting that in the
dark, crowded Crosswinds, anyone--the bartender, a stranger, even
Hillin--could have put GHB in Dowdy's drink. Williams was grasping at
straws, but the suggestion infuriated an important witness.
Events before the accident were used to portray Dowdy as a heavy drinker.
Perry testified that Dowdy drank on the ski trip. That Dowdy had a keg
party. Friends said they'd seen her drink more than 2 or 3 drinks in the
past. (No one said when, where or over what period of time.)
Hillin's testimony that Dowdy came to work after the accident smelling of
alcohol was refuted by their supervisor, but the impression built.
In her closing argument, Smotherman described Brewer's terrible last
moments and--like her mentor Macy--shed a few tears.
Painted as a lying rich bitch party girl with no remorse, needing to be
"locked up for the protection of society," Dowdy was convicted, given 25
years in prison and hauled off in handcuffs.
After lunch on May 31, 2002, an inmate found Dowdy and told her to report
immediately to her case manager on the honor dorm. Stone-faced, the
manager handed her the phone and said, "You need to call your lawyer."
After her 2nd trial, Dowdy had been in prison 16 months. Caswell had
denied her request for a sentence reduction. Nothing Dowdy had
done--"speak-outs" for high school students, becoming a peer educator on
women's health, attending a faith-based course called "Alcohol Narcotics
Victorious"--was viewed in her favor. In fact, prosecutors used it against
Dowdy wasn't comfortable with the speak-outs, in which inmates told their
stories. "The whole point is to keep kids from coming to prison," Dowdy
says. "I can't go tell them about the date-rape drug and what I think
really happened to me." She kept her talks general.
The prosecutors interviewed one of Brewer's relatives who had heard Dowdy
at a speak-out. "Basically, they said that I didn't act like I cared, that
I got up and left early," Dowdy says. "There were a couple of times I had
to leave after I gave my talk, because I had a job and my boss wasn't
crazy about me doing it. They take something positive you do and hit you
over the head with it." The prosecutors suggested the "ANV" course was
Dowdy's admission that she was an alcoholic.
For her appeal after the second trial, Dowdy's parents hired defense
attorney John W. Coyle III, a flamboyant, often-married lawyer whose ego
and booming voice match the size of his portrait in his waiting room. With
a transcript littered with judicial and prosecutorial misconduct, Coyle
assured them Dowdy would get a new trial.
In her case manager's office, Dowdy picked up the phone. "We won!" Coyle
said. The Oklahoma Court of Criminal Appeals had overturned her conviction
because Caswell had improperly barred the involuntary intoxication
defense. Dowdy burst into tears. She had a 3rd shot at freedom.
When Trinka Porrata and Dr. Deborah Zvocek arrived in Oklahoma City in
March 2004 to testify for Dowdy as expert witnesses on GHB, they were
alarmed. 2 of the most prominent experts on GHB in the country, Porrata
and Zvocek believe Dowdy and Hillin were drugged. "It's frightening,"
Porrata says, "because it can happen to anybody."
But the trial was a week away and Coyle didn't understand the science of
GHB, nor had he interviewed and prepared important witnesses.
The experts had been impressed with Coyle's appellate brief. But in
person, Porrata says, Coyle seemed like a "burned-out old fart." They
found out a female associate had written the appeal but was no longer on
A former Los Angeles narcotics officer, Porrata gained her expertise from
10 years of interviewing GHB addicts and rape victims. She has trained
hundreds of law enforcement officers on recognizing and investigating GHB
cases. Retired, she now is on the board and president of Project GHB, an
effort to educate users and law enforcement about the symptoms and dangers
of the drug.
>From Minneapolis, Zvocek and her husband, Dr. Steven Smith, have published
and testified extensively about GHB; their papers have appeared in
prestigious publications such as The New England Journal of Medicine. A
medical anthropologist, Zvocek focuses on research; Smith, an emergency
room physician, comes at it from a clinical point of view.
Dowdy struck Zvocek as direct and straightforward. "She said what she
remembered, what she knew," Zvocek says. "It seemed very clear and honest.
It would be easy for people in that situation to learn about it and try to
come up with symptoms."
But Zvocek was shocked when she asked Coyle what witnesses were going to
say and he suggested she find and interview them.
Worried that an innocent person was being railroaded, Porrata and Zvocek
began talking to witnesses, crafting questions for Coyle to ask,
identifying weak areas in the prosecution's case. Coyle seemed
"indifferent," Zvocek says.
Zvocek encouraged Coyle to hire the toxicologist who had tested Dowdy's
blood to testify about his research, which included a test showing that in
75 percent of samples, GHB was gone within three to four hours. Coyle said
he cost too much, so he wanted Zvocek to testify about that, though it
wasn't her area of expertise. The prosecution hired him, Zvocek says, and
distorted his research results.
Then a bombshell dropped. A few days before Dowdy's third trial began on
March 29, 2004, an Oklahoma City defense attorney contacted Coyle to tell
him about two female lawyers who claimed they had been drugged and
sexually assaulted at the Crosswinds in late 1999.
This was explosive information. Prosecutors and the bartender had
maintained that the club had no problems with GHB.
Porrata called one of the women and found her story believable. The woman
claimed that both had been drugged at the Crosswinds on December 31, 1998,
five months before Dowdy's accident. They'd awoken in separate rooms in a
stranger's house. Both had been raped but never reported the attacks to
police. One woman obtained a picture of her assailant, who bore a
resemblance to a sketch of the man Dowdy remembered, drawn by a police
artist several years earlier.
Coyle spoke to one woman for only 4 minutes and brushed her off as
"flaky." Porrata was furious. (Dowdy didn't find this out until a year
later. Coyle did not return repeated phone calls.)
If Coyle was casual and unprepared, prosecutors Smotherman and Miller were
focused and aggressive, prepping their witnesses to testify.
The 3rd Trial
Porrata remembers the collective gasp in the courtroom as former police
officer Kevin Tucker, who had taken Hillin to detox, testified.
Coyle asked Tucker what Hillin had told him about Dowdy that night.
"She said she left with a man," Tucker said.
For the first time, a witness had corroborated what Dowdy had contended
all along. But Smotherman leaped up and shrieked, "Objection!" When Coyle
tried to pursue it, Caswell cut him off and forced him to move on.
For the first time, Oscar Ramirez appeared in court. He had talked to the
prosecutors earlier but was disturbed by their attitude. "To me, they were
like, 'This is an officer's son; we're going to prosecute her
regardless,'" Ramirez says. "They said they didn't believe her story about
Ramirez testified that Dowdy was wearing no panties when he pulled her
from the wreck. Coyle tried to use the absence of Dowdy's underwear plus
details pulled from Dowdy's medical records to show she was sexually
The prosecution countered with a nurse who said she'd looked at Dowdy's
private parts while Dowdy was strapped on a backboard and saw no evidence
of rape, a talent that would surprise experienced sexual-assault nurses.
Then began the panty war: Two prosecution witnesses, a paramedic and Barry
Ragsdale, an undercover narcotics officer with the Dallas Police
Department, testified that these "party girls" often go out without
Absurd and rank speculation, but Caswell allowed it. Though Dowdy later
testified she was wearing panties that night and usually did so, by then
the prosecutor had repeatedly "predicted" she would say so--implying Dowdy
was covering up her panty-wearing habits.
It was a massacre. The defense put on Porrata and Zvocek, head and
shoulders above the prosecution's witnesses in terms of expertise on GHB.
But testifying in a criminal trial requires focus and firmness. Coyle
hadn't prepped them, and they came off poorly to the jury.
Ragsdale's main qualification as a GHB expert was busting dealers and
using the drug when it was legal. "His expertise compared to mine is
minute," Porrata says. "He has no credibility of any kind." But Ragsdale's
testimony was interpreted by jurors as authoritative. Guided by the
prosecution, Ragsdale opined that the GHB claim seemed like an "after the
Ragsdale says he was surprised Coyle didn't try to go after him on the
stand and admits that he had seen little of the evidence.
Crosswinds bartender Michael Szekely remembered serving Hillin and Dowdy
cocktails, but not the Jgermeister. Coyle countered his testimony with
lawyer Marco Palumbo. Szekely had confided in him that Crosswinds had a
problem with GHB in 1999. He had come forward after learning Szekely
testified under oath that it didn't.
Smotherman lit into Palumbo, shrieking, "You don't like me, do you?" Since
Palumbo had nothing to gain by testifying, this was silly, but Smotherman
succeeded in shifting attention from his testimony to his motives.
A GHB-rape victim from Tulsa testified, but her anguish had the effect of
highlighting Dowdy's ice queen demeanor. The prosecution piled on the
witnesses, saving Dowdy's friends to pound the final nails into her
Her former supervisor Gallant didn't want to testify again. Things he'd
heard about the case bothered him. "Emily's not the kind of person to
leave Katie in the parking lot," Gallant says. "It doesn't make sense to
But he again testified about Dowdy drinking on the ski trip, at a keg
party and crashing on his couch after going out with Gallant and another
friend. (Jurors interviewed later believed, because of deft questioning
from the prosecution and a meltdown by the defense, that he was testifying
about things that happened after the accident.)
Nobody asked Gallant what he believed were important questions.
"Nobody ever asked me if I saw her drinking and driving," Gallant says. "I
never did. Was she drinking and driving on the ski trip? No. Was she
drinking and driving at the house party? No. I thought they would want to
know that she always drank responsibly."
The most damaging witness was Dowdy's former friend Scott Perry. He
testified about being with Dowdy when she did a U-turn over the median
after missing an exit on an expressway and that he saw a picture taken
after the accident showing Dowdy and her boyfriend Mulac at a tailgate
party holding beers.
The driving incident happened before the accident and didn't involve
alcohol, just a missed exit. And the picture?
It was taken on December 2, 2000. Dowdy had petitioned the board that
monitored her Sobrietor for permission to go with Mulac to the Big 12
football championship game in Norman. They agreed, adjusting Dowdy's
schedule for her Sobrietor tests, which she passed later that day.
The picture ran in the Oklahoman. Prosecutors called the monitor to
complain that Dowdy was at the game, so they saw it. Judge Caswell saw it.
Coyle had seen it. But he didn't demand that the prosecution produce the
picture, nor did he put Dowdy or Mulac on the witness stand to refute
Perry's testimony. If he had, the jury would have seen they were holding
hotdog buns, not beers.
After an incendiary closing argument--and more tears--by Smotherman, the
jury took almost no time to convict Dowdy. Because of "evidence" that
Dowdy had continued to drink and drive and, as one juror later put it, her
"total lack of humanity," they slammed her.
When the judge read the sentence of 40 years, Mulac stood up in the
courtroom and wailed, "Noooo!"
Smotherman repeatedly portrayed Dowdy as displaying "absolutely no
remorse," one of Macy's favorite lines. After her first conviction, the
Brewers complained Dowdy never told them she was sorry. Dowdy's demeanor
in court even bothered Robin Turner, her former supervisor.
But Dowdy's stern faade hid a frightened woman barely holding it together.
As for remorse, there was plenty. Just not the kind the prosecution
The Daily Oklahoman wrote that after her first conviction, Dowdy burst
into sobs and addressed the Brewers, who had given lengthy and emotional
victim impact statements. "I'm so sorry," she said. "I can't even put into
words the shock I've been in." The paper contended she hadn't spoken
loudly enough for the family to hear. Maybe so, but others in the
courtroom heard her.
A few months later, Dowdy wrote the Brewers from prison: "Your tragic loss
weighs heavy on my heart and mind each and every day. I was so frightened
and scared during the trial that I appeared uncaring...I cannot even begin
to imagine the grief you have experienced and the pain that you must
endure on a daily basis. I am so very sorry..."
On February 3, 2002, Dowdy wrote another letter to the Brewers. "On May
22, 1999, I made choices. Poor choices which led to tragedy--leaving many
different lives in ruin and despair, but namely, an innocent life
lost--the precious life of Ryan."
It's a powerful letter, but Dowdy doesn't admit guilt or change her story.
Only one line was ever admitted into the record: her admission that on a
few occasions before her first trial she had consumed alcohol in violation
of her bond.
Though Dowdy asked to meet with the Brewers while waiting on the jury in
the third trial, she was barred by Smotherman. She wrote them again on
April 13, 2004; Dowdy has had no reply.
Broke, the Jacksons have created an Emily Dowdy Legal Justice Fund (P.O.
Box 432, Hillsboro, TX 76645). One of the women who came forward about
being drugged at the Crosswinds has filed an affidavit on Dowdy's behalf.
Coyle filed an affidavit saying that "the atmosphere of intimidation and
hatred that Judge Caswell created and showed toward Emily Dowdy" caused
him not to put Dowdy on the stand to testify about the hotdog bun picture.
Perry submitted an affidavit regarding his testimony on the photo, saying
that prosecutor Miller had told him the picture wasn't available for him
to see, but "the photo was a key point and that she wanted him to
emphasize the photo to the jury." After the furious Nancy Jackson sent him
the picture, Perry called the district attorney's office and told them he
had been wrong.
Smotherman doesn't remember the picture as "a big deal," but she and
Miller used Perry's "memory" of the photo and their own repeated
references to Dowdy's other "criminal" acts to prove she was a continuing
danger to society who deserved a long sentence.
But Smotherman admitted to the Dallas Observer that she could think of no
evidence "at this time" that Dowdy ever drank and drove after the
As for Dowdy's other "criminal" acts? Smotherman acknowledged that Dowdy
drinking alcohol in violation of her bond wasn't "necessarily" a crime,
but she couldn't come up with any others. Pressed, Smotherman went into a
tirade that "24 jurors" in two trials found Dowdy guilty.
But 24 Oklahoma County jurors also convicted Jeffrey Todd Pierce (65
years) and Clifford Henry Bowen (death) for crimes they didn't commit.
Smotherman has left the district attorney's office. She now works at OU's
law school as "director of competitions," teaching trial technique. The
Oklahoma Attorney General's Office filed a brief with the Oklahoma Court
of Criminal Appeals calling the photo testimony a mistake but "harmless
error." Even if other allegations about prosecutorial misconduct were
true, the attorney general contends, they were all "harmless error," and
thus not grounds for a new trial. A ruling is expected later this year.
Taped interviews by Frye of five jurors make it clear myriad "harmless
errors" led directly to Dowdy's conviction and harsh sentence.
One juror said Caswell told her after sentencing that Dowdy probably would
serve only 4 years, another lie unless the judge expects the appellate
court to reverse her again. If it does, will Judge Caswell recuse herself?
Anything can happen in Oklahoma County.
What happened to Ryan Brewer and his family was a tragedy. But what
happened to Dowdy--the night of the accident and in the court system--is
also tragic. And Oklahoma justice continues to pile on.
(source: Dallas Observer)
The sudden death of Romneys dream----What once seemed like a clever ploy
has become a political and policy disaster for the governor
It seemed like a good idea at the time.
When Mitt Romney 1st announced his desire for a "gold standard" death
penalty almost 2 years ago, it looked like a reasonable bet - both as
politics and as policy. Previous death-penalty bills had lost by close
margins in the state, suggesting that a better plan - and a popular
governor - might swing the vote. The 11 members he assembled on his
Governors Council on Capital Punishment, including respected figures like
forensic scientist Dr. Henry Lee, Indiana University law professor Joseph
Hoffman, and Brigham and Womens pathologist Dr. Fred Bieber, impressed
even the most skeptical. By demanding extra assurances of guilt, Romneys
plan would presumably assuage the concerns raised by reports of innocent
death-row inmates, which have stalled public support for capital
punishment. He could force potential gubernatorial opponents - like
Attorney General Thomas Reilly, a death-penalty supporter - to either back
his bill or take an unpopular position opposing it. And even if the
measure failed here in Massachusetts, it would look good to Republicans
nationally for his potential 2008 presidential run.
But by last Thursday, when Romney finally presented the plan to the state
legislatures Joint Committee on the Judiciary, his gamble had crapped out.
Democrats in the State House say the bill has no chance of passing, a
reality Romney himself seemed to concede. "I dont pretend there will be a
dramatic shift in response to my testimony," he said.
The Massachusetts citizenry apparently doesn't care about the measure:
although polls show a majority favoring the bill, legislators and their
aides say they are receiving no calls about it. Romneys bill has been
denounced by both the Boston Globe and the Boston Herald, providing
sufficient cover for Reilly and other Democrats to oppose it while still
supporting capital punishment. State Senator Marc Pacheco (D-Taunton),
normally a slam-dunk vote for any death-penalty proposal, tells the
Phoenix that he is "increasingly getting frustrated with this piece of
legislation being used for purely political purposes." Even assuming
Pacheco and other pro-death-penalty Democrats ultimately vote for the
bill, it will lose by roughly 40 votes in the House and 15 in the Senate,
according to anti-death-penalty lobbyists. If Pacheco and others like him
vote no, the loss could end up as a massacre.
Nationally, it looks just as bad. The New York Times Magazine mocked
Romney in its most recent "Year in Ideas" issue, calling his "foolproof
death penalty" "the 1st effort to write a purely symbolic criminal
statute." No prominent Republicans from out of state have spoken up for
And the best example of how sad and lonely this bill is? The Romney team
cant even provide the de rigueur prop for a piece of tough-on-crime
legislation: a victims teary-eyed family member. A few showed up to
testify against the bill, and the governors office has yet to find anyone
in favor who will even stand alongside Romney for photo ops.
Romneys plan can best be described as a right-wing parody of a liberals
perfect death-penalty bill: an expensive and complicated new bureaucracy
that would execute nobody. The bill calls for layers and layers of new
processes and legal requirements, while restricting death-penalty
eligibility so narrowly that its hard to find any real case to which it
would ever apply. Whether this was bad work by Romney's staff or the
inevitable result of a quixotic endeavor, it's not likely to appeal to
many people on either side of the debate.
Under Romneys plan, the death penalty would be applied to murders
committed as an act of terrorism; assassination of law-enforcement
officers, prosecutors, corrections officers, and other state
criminal-justice officials; killings committed during incarceration;
multiple murders; and killings involving prolonged torture. Those are rare
enough. But each case would also have to involve forensic evidence.
Further, eligible convicted killers would face a second trial to determine
punishment, with a separate jury tasked with finding guilt beyond any
doubt, rather than just beyond a reasonable doubt. Suffolk County sheriff
Andrea Cabral, testifying against the bill, questioned whether that is
even possible - the state judiciarys own language for explaining
"reasonable doubt" to jurors, she pointed out, says that "beyond all
doubt" is not a feasible standard.
Romney himself cites 2 murders in the Commonwealth in the past 10 years
that he claims might have been deterred by this legislation: the killings
of Assistant Attorney General Paul McLaughlin in 1995, and incarcerated
former priest/molester John Geoghan in 2003. He also points to the London
bombings and the multiple murders allegedly committed by Joseph Duncan in
Idaho as the types of crimes that would be eligible for death.
Perhaps the governor really believes that, had his proposed statute been
in place, Jeffrey Bly and Joseph Druce would have refrained from killing,
respectively, McLaughlin and Geoghan - a view not shared by death-penalty
opponents, who insist that capital punishment is not a deterrent. But even
Romney doesn't think that terrorism cases would be prosecuted by the
state. At the hearing, Lieutenant Governor Kerry Healey conceded that the
federal courts, which can impose the death penalty, would handle such
cases, but asserted that making terrorism murders punishable by death in
state law is nevertheless "important as a statement of principle." Sounds
like the Times Magazine had it nailed - this is symbolic crime-fighting.
Mitt gets bizarre
With the actual likelihood of execution under this legislation virtually
nil, last Thursday Romney and Healey made like George W. after finding no
weapons of mass destruction: they retroactively unveiled a new
justification for their plan.
They now claim that the threat of execution would prompt many killers to
plea bargain and accept a 1st-degree-murder conviction in exchange for a
death-penalty waiver. In fact, Romney testified that this would happen so
frequently, the savings from those trials might outweigh the potential
cost of the new death-penalty system.
This is a rotten argument for several reasons, but mostly because the
threat would work just as well on innocent people as on guilty ones. In
fact, as Norfolk County DA Bill Keating pointed out in his testimony, the
Supreme Judicial Court has noted that the death penalty could be
unconstitutional because it unduly pressures defendants to accept life in
prison rather than face the possibility of death. "And now they highlight
it as a reason for passing the bill," Keating said with palpable contempt.
This newly discovered rationale for the bill was just one of several
head-scratchers that Romney and Healey let fly at the hearing. How to pay
for the representation of defendants facing the death penalty was another.
When asked about the added cost to the state of providing the indigent
with specially qualified defense attorneys to work the enormous hours this
kind of case would require, Romney said that he would consider additional
funding if necessary - but claimed that it probably wouldnt cost anything
at all. "When there's a rare capital-punishment case, it brings defense
attorneys from all over the country who are happy to take the case without
pay," he said. He didn't explain the basis for this statement. It
certainly did not come from recent and ongoing death-penalty cases in
Massachusetts federal court, which have been defended at great expense to
the taxpayers, Middlesex County DA Martha Coakley points out.
An even bigger whopper came when State Senator Steven Baddour (D-Methuen)
asked about the historic injustice that African-Americans receive the
death penalty in vastly disproportionate numbers. Romney bizarrely claimed
that not only did his plan safeguard against that concern, but that the
death penalty would apply specifically to crimes that minorities dont
commit. "I cant think of a case involving an African-American where this
provision might apply," he said, apparently forgetting Jeffrey Bly, the
man convicted of killing prosecutor McLaughlin. In fact, he opined, all
cases of mass murder he could think of were perpetrated by people "of the
majority race" - an interesting new theory of terrorism, not to mention
the DC sniper killings.
Romney may have been confusing perpetrators with victims. Although racial
minorities make up a disproportionately high percentage of homicide
victims in Massachusetts, McLaughlin and Geoghan, as well as the victims
in Idaho and most of those in the London bombings, were white.
Perhaps the most disconcerting moment of the hearing came when
Representative Michael Costello (D-Newburyport) questioned Lieutenant
Governor Healey, who said she was unfamiliar with the case of Stephan
Cowans is the young black man who did 6 years for the non-fatal shooting
of a Boston police officer - a crime he did not commit - based in large
part on fingerprint evidence later found to be faulty. Had the officer
died, Costello said, Cowans would have been eligible for the death
penalty, and might well have been executed despite the "foolproof" system,
or would have pled to 1st-degree murder to avoid the possibility of a
Cowans is just one of a stream of wrongfully convicted people set free in
the 22 months since Romney launched this death-penalty initiative, which
is probably one of the major reasons why the bill has failed to gain
momentum. Nobody paying attention to criminal-justice issues around here
believes we are close to a foolproof system - as State Senator Dianne
Wilkerson (D-Boston) put it, "its not a system that works, but a system
that allows us to fix mistakes." Of all the cases, Cowans's has sent the
biggest shock waves of concern through the system - leading to grand-jury
proceedings and the shutdown of the Boston Police Department's fingerprint
lab - which makes it all the more stunning that Healey wasn't prepped on
Even Coakley, the DA of the state's largest county, testified that the
realities of police and FBI misconduct render moot all hopes of a
Instead of a symbolic death penalty, what Coakley wants is some real
crime-fighting capability. Her office can't get DNA tested because of
backlogs at the state lab, she testified. Judges are grossly underpaid,
while lack of funding has made defense counsel literally unavailable (see
"Criminal Justice," This Just In, July 8).
This was the overarching theme of the hearing, and a sign of how this
death-penalty bill is backfiring on Romney. It has become a focal point
for discussion of what his administration has not done to improve public
safety and criminal prosecution. Why not add police, increase
prosecutorial budgets, improve crime labs, raise pay for court-appointed
defense attorneys? "Why is this the best way to spend money?" asks State
Senator Cynthia Creem (D-Newton), a member of the judiciary committee.
"There was no answer to that."
(source: David Bernstein, The Boston Phoenix)
More information about the DeathPenalty