Prosecutorial Misconduct: Justice as Red Meat

By Nick Braune
Special to the Texas Civil Rights Review

Back in mid-July, I wrote a column on a poor Oklahoman, Curtis McCarty, who was released from 20 years of incarceration (mostly on death row) because a crime lab supervisor, forensic expert Joyce Gilchrist, was too eager to help prosecutors. She slam- dunked evidence against McCarty. She originally wrote in her notes that his hair samples did not match evidence found at the crime scene; after McCarty was charged with murder, she changed those original notes and insisted it was a “match.” Although she eagerly wanted to nail bad guys and be on the good guys’ team, she finally was fired in disgrace in 2001.

Prosecutors, I pointed out, were said to love having Gilchrist testify: she had some showmanship and style that swayed jurors. The prosecutors called her “Magic.” In my column I mentioned that the prosecutors who kept calling on her to work her magic had to be blamed too, but I did not have any specifics to base it on.

I recently found an excellent quote on this, however, when I was recently combing the Innocence Project (I.P.) web site. (I.P. is a group of legal experts, with supporting chapters in 30 law schools, who have shown over 12 years that over 200 convictions were false, using the newest DNA technology. Curtis McCarty was in touch with them from prison.) On I.P.’s site, I found the following paragraph linking Gilchrist and the prosecutor, confirming my view that she alone was not the problem.

“By itself, Gilchrist’s misconduct would have derailed justice, but it practically guaranteed a wrongful conviction when paired with the outrageous conduct of District Attorney Robert Macy, who exaggerated the evidence against McCarty and misled the jury. Over two decades, Gilchrist and Macy together sent hundreds of people to prison and two dozen, including McCarty, to death row. Macy has said publicly that executing an innocent person is a risk worth taking. It’s a risk that he and Gilchrist took when their misconduct sent McCarty to death row, but DNA testing in 2002 and 2007 proved McCarty did not commit the crime.” (Website: The Innocence Project in Print; Summer/Fall, 2007)

(In my mid-July column I reported a study by the Chicago Tribune a few years ago that analyzed 381 cases of prosecutor misconduct ranging back to 1964, where the misconduct was serious enough to overturn a conviction, but not one prosecutor was convicted of a crime. And some moved up the ladder to be top district attorneys or judges. And to my knowledge, neither Prosecutor Macy nor forensic expert Gilchrist have been given jail time for what they did to McCarty.)

Keeping in mind how lab problems and prosecutor problems were connected in the unethical Oklahoma City situation, let’s shift to Texas. Now, this summer the results came in from a two-year study of Houston’s crime lab. (This is very important because Houston’s Harris County is the only county in America to have sent more people to death row than Oklahoma County, where Gilchrist and Macy operated.)

In Houston, the Chronicle (June, 17, 2007) ran an article speaking of “troubling” cases: “Investigations in the four and a half years since the HPD’s crime lab woes first arose have highlighted…years of incompetence and uncovered hundreds of unidentified cases with potential problems.” HPD’s DNA lab was closed after 2003 because of allegations of flaws in the data collected, misinterpretations of data, evidence being improperly stored, etc. Later a [two-year] study was commissioned and its results are in: about 600 cases handled by the HPD “deserve further scrutiny.” Houston’s forensic lab has a muddied name now.

Here is an interesting case mentioned in the Chronicle…note that the muddied lab isn’t too far from a mud-splattered prosecutor. Listen to what the prosecutor will tell Ronald Cantrell who was in custody. Cantrell was accused of a shocking sexual assault on an eight-year-old girl. With an “indecency” incident on his previous record, he was terrified when the prosecutor told him that the HPD crime lab had matched his DNA to the crime scene and that he had better confess to avoid a massive sentence.

Cantrell confessed, plea bargaining down to six years in prison. But during the recent investigations of the lab, a private lab redoing the tests did not get the same results; there were no conclusive lab results about Cantrell one way or the other. The prosecutor was mistaken, or was lying. Some foolish people might say it doesn’t matter if Cantrell was confused about how much evidence the government had against him…he did confess to the crime and we nailed the perpetrator. But it matters if we think rights matter. And what if this Cantrell story is part of a pattern? Then it is either a pattern of lab and prosecutor mistakes or a criminal modus operandi on the part of prosecutors.

The Chronicle had another story in the same article, but notice the same pattern in this case: A man is arrested and told there is conclusive forensic evidence against him; the man confesses and is given a lighter sentence; later, the evidence was found not to be so conclusive. But by that time the man had confessed. Leroy Lewis, an 18-year-old high school student in 1991, accused of slaying a bank teller, was told by the prosecutor that a HPD analyst reported that forensic evidence linked Lewis to the crime scene. “Facing a capital murder charge and a possible death sentence, the young man pleaded guilty,” said the Chronicle. A decade later retests show no forensic evidence connection. (Well, he confessed, so he probably did it; so what does it matter?)

I.P., which has overturned 29 convictions in Texas in 12 years through DNA, knows this reveals only the tip of the iceberg, because physical evidence that can be subjected to DNA testing only exists in 5 or 10% of all cases. Nationally, there have been “decades of overzealous prosecution and forensic science negligence and misconduct,” according to I.P.’s newsletter, so more work needs to be done.

A beginning: Thanks to I.P., Texas now has a Forensic Science Commission to investigate state labs, and the legislature this last session gave it some funds to work with. This is good; but we will also need now some legislative action checking the power of “red meat” prosecutors. They do not check themselves and the judiciary doesn’t seem to do it.

If readers are eager to find out more about overzealous prosecutors, there is an excellent story in the current (September, 2007) Texas Monthly about Dallas, which had the same prosecutor (of the “red meat” variety) from the 1950’s, where blacks did not have a chance at all in Dallas, all the way to 1986, where things had improved somewhat. The name of the article is “Craig’s List,” and it tells the story of a new prosecutor, Craig Watkins, who is black and is trying to undo some of the decades-long prosecutorial misconduct, like keeping blacks of juries and treating defense lawyers as enemies.

Craig Watkins is not perfect — he still supports the death penalty, for instance — but he is moving in a good direction on some matters. He is now allowing the I.P to review hundreds of Dallas county cases dating back to 1970. Dallas has had 13 exonerations from DNA, and I suspect there will be many more people found to be wrongfully incarcerated in Dallas because of “overzealous” prosecutors and the various technicians propitiating them.

Note: This is an expanded version of an article first appearing tin the Mid-Valley Town Crier.

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