Cowboy Bob, Black Magic, And The Courtroom Of Death
by ERICA HELLERSTEIN –
“Do you believe in God?” David Aubre, a French filmmaker, asks the former Oklahoma County District Attorney.
“Very much,” Macy drawls.
“Do you think there’s a chance that God is against the death penalty?”
Macy blinks. The camera focuses on his face, and he remains quiet save for a few shallow breaths. More than ten seconds pass. Finally, he concludes, “I don’t know how to answer that question.”
It’s perhaps an unlikely response for Macy, a tough-talking capital punishment enthusiast notorious for his reputation as one of America’s deadliest prosecutors. Over the course of his two-decade career, Macy sent 54 people to death row — including current inmate Richard Glossip — more than any other U.S. prosecutor at the time. At least 20 of them have been executed. He campaigned as a death penalty true believer, characterizing the people he sentenced as ”remorseless killers who would kill again if given the opportunity,” and was reelected five times on a wide margin.
Macy embraced his macho image. The silver-haired prosecutor looked like he jumped off the reel of an old Western film, earning the nickname “Cowboy Bob” for his signature getup: wide-brimmed cowboy hat, black string tie, and slick cowboy boots. Born in 1930 to his mother, Ethel, and his father, Harold, an Indianapolis truck driver dubbed “Red” for his hot temper, Macy grew up poor — during cold spells his family’s only source of heat was a pot belly stove. A former Oklahoma City police officer, Macy roped calves and hung a poster of the popular Western movie Tombstone in his office. According to local lore, he was once dragged from court after pulling out a gun on the jury, full cowboy style.
Macy’s brand of frontier justice quickly stood out to Colin Starger, a law professor at the University of Baltimore and former staff attorney at the Innocence Project. “People have no idea that it was kind of the Wild West,” Starger, who worked on an exoneration case in Oklahoma County, remarked. “It was infamous to me as soon as I got there just how many people had been sentenced to death. And then I started hearing these stories about Bob Macy like he was some kind of golden god down there, like he was just untouchable, completely untouchable.”
Macy’s fall from grace eventually came in 2001. The prosecutor’s lengthy career ended amidst scandal, and he retired early in the wake of a sweeping investigation into the work of a now-discredited police chemist with whom he worked closely. Her testimony helped send 23 people to death row.
Macy passed away in 2011, but he remains a controversial figure with a powerful legacy. Few Oklahoma-based defense attorneys interviewed for this story were willing to talk about the cowboy prosecutor on the record. One defense attorney who handles cases in Oklahoma County declined to comment, explaining that comments about Macy could be construed as attacks against the current District Attorney, David Prater, who worked as an Assistant D.A. in Macy’s office.
Others, however, were able to be more forthcoming.
“Macy would pretty much do whatever it took to win,” said David Autry, an Oklahoma County public defender who worked during the Macy era. “He would routinely withhold exculpatory evidence, he engaged in prosecutorial misconduct routinely during trials and especially during closing argument. And even when the appellate court would slap him down, he would just continue on the same course.”
Curtis McCarty, an Oklahoma death row exoneree who was a Macy conviction, dubbed the cowboy prosecutor a “kill freak” — the kind of person so singularly focused on death that “all they talk about is killing people. And all they do is kill people. And they’re obsessed with it.”
The features that distinguished Macy’s office aren’t unique to Oklahoma County. Most people currently on death row, and those who have been executed over the past several decades, come from a small minority of counties that aggressively seek capital punishment. A mere two percent of U.S. counties are responsible for more than half of the executions carried out since 1976, according to the Death Penalty Information Center. Moreover, just two percent of U.S. counties account for nearly 60 percent of the nation’s current death row population.
Thus, the story of Bob Macy may be the story of a remarkably high percentage of death penalty convictions in the U.S.
The counties that disproportionately seek the death penalty are also responsible for a disproportionate share of mistakes, misconduct, and exonerations. In Oklahoma, for instance, at least three of the state’s ten exonerations were Macy convictions. In fact, Macy’s fingerprint is currently on a high-profile death penalty case that has many worried that an innocent man may be put to death.
Macy made the initial decision to seek the death penalty for Richard Glossip, the Oklahoma death row inmate whose controversial and high-profile scheduled execution became national news as questions of his innocence mounted. Glossip, who was convicted of ordering the grisly 1997 murder of hotel owner Bobby Van Treese, has always maintained his innocence. The case against Glossip rests on the word of a man named Justin Sneed, a handyman at Van Treese’s hotel. Sneed cut a deal with prosecutors to testify that Glossip, his manager, pressured him to beat the hotel owner to death. In exchange for his testimony, Sneed avoided a death sentence and was sentenced to life in prison. Brady Henderson, legal director of the ACLU of Oklahoma, says that arrangement can be traced back to Cowboy Bob.
“It was very much a Macy-style decision to offer [Sneed] the opportunity to avoid the death penalty so that they could go after Richard Glossip,” Henderson explained. “That’s really the key decision in the whole case. The state basically made that evidence happen by persuading Sneed that he should implicate Richard Glossip, and ultimately promising him a big reward — his life — for doing so. For whatever reason, they were the ones who seemed to have the idea before Sneed ever gave it to them, that Richard Glossip needed to take the main rap for the murder Sneed had just committed.”
Glossip’s execution was put on hold mid-October when the Oklahoma County Attorney General put a temporary stay on all executions until 2016 to investigate why the state used the wrong drug in a botched execution last year. But as Glossip’s execution looms somewhere after 2016, it’s worth revisiting the man who first sought death for Glossip — and his office’s troubled past.
Curtis McCarty was in the Oklahoma State Penitentiary in the spring of 2001 when he received a small envelope from his mother. Inside, he found a tiny clipping from a local newspaper article, explaining that the Oklahoma City Police Department crime lab was under investigation by the FBI due to allegations of criminal misconduct. It might not have meant much to the newspaper’s average reader, but to McCarty, it was a revelation.
“I knew as soon as I saw that little piece of paper that I was gonna live,” McCarty recalled. “My dad told me later that [my mom] was crying and freaking out. She tried to write me a letter but her hands were shaking too bad.”
By 2001, McCarty had already spent more than a decade on death row for the murder of 18-year-old Pamela Kaye Willis — a crime he swore he never committed. McCarty had watched as friends he believed were innocent walked to the execution chamber and never returned, and he had lost hope that he would ever be released.
Willis, the daughter of a local police officer, was found murdered in an Oklahoma City home in December 1982. She was naked and had been stabbed and strangled. Because McCarty was an acquaintance of Willis’ (she knew his girlfriend), he became a suspect in the case. A few months after the murder, he was taken in for police questioning and submitted DNA samples for testing. Over the next few years, police interviewed McCarty several times but did not arrest and charge him until May 1985, two-and-a-half years after Willis’ murder.
Colin Starger, who worked on McCarty’s case with the Innocence Project, said McCarty’s past made him a “great setup.”
“When he was very young he was into a lot of drugs and into a lot of trouble,” Starger explained. “When the daughter of the police officer was killed and for two years they couldn’t solve this thing, eventually they circled back around to Curtis and put it on him.”
At McCarty’s trial in March 1986, the prosecution relied on the testimony of a now-disgraced Oklahoma City forensic chemist named Joyce Gilchrist. The chemist, who earned the moniker“Black Magic” because of her uncanny ability to produce DNA matches where other scientists came up short, said that the hairs found at the crime scene could have been McCarty’s and that his blood type matched the type of the sperm found on Willis’ body. When McCarty heard Gilchrist testify at his trial, he knew that his fate was sealed.
“When she was done I knew I was going to prison,” McCarty said. “I had no idea that they would go to such lengths to do what they did. To sit there in a court of law and lie like that… It made the rest of the trial that much more unbearable. Knowing that there was absolutely nothing that I could do to stop it.”
McCarty’s early prediction proved prescient. In 1986, he was convicted and sentenced to death. Only after the Gilchrist scandal erupted was it discovered that the chemist went back and revised her original handwritten notes to implicate McCarty — and that the hairs she had used for testing had mysteriously disappeared. Gilchrist’s misconduct in the laboratory eventually led to her demise, but she would spend two decades working in the police department before her work was seriously scrutinized. By the time Black Magic’s fraudulence was finally exposed, she had left an indelible mark on Oklahoma County.
Gilchrist’s knack for securing forensic matches made her extremely valuable to Macy’s office. “She could seem to provide a conclusive match where somebody else looking at the same stuff later would say, ‘this is inconclusive, I can’t figure it out,’” explained Henderson. “And that’s why her nickname was literally ‘Black Magic’ in the office. If it was magic, that means it wasn’t science… And that should have been the first red flag.”
Gilchrist didn’t just work inside the laboratory. Her job responsibilities also included testifying at criminal trials. On the stand, she proved to be an articulate and formidable witness and prosecutors, especially Macy, grew to rely on her testimony. Over the course of Gilchrist’s career with the Oklahoma police lab, she worked on thousands of cases and her testimony helped send 23 people to death row.
In 2011, looking back on his career, Macy remarked that “[Gilchrist] was so… good. The reason the defense attorneys didn’t like her was because she was better prepared than they were. She would make a better presentation to a jury. She probably did win more than her share of the arguments because she was prepared.”
Among her peers, Gilchrist’s stunning success earned her glowing praise and accolades. In 1985, the Oklahoma City Police Department named her its “Employee of the Year.”
But even then, Gilchrist was not immune from scrutiny. Critics were questioning the chemist’s work for more than a decade before she was fired.
“[Gilchrist] should never have been hired over there,” Autry, the Oklahoma County Public Defender, remarked. “She was totally incompetent, she was ill-trained, and in way over her head. But they knew that they could use her and they did use her and she was more than happy to be used for whatever end they had in mind… Macy really groomed her and thought the world of her and of course she was full of shit,” Autry said.
In 1987, a Missouri-based chemist lodged a scathing complaint against Gilchrist, claiming that she rendered “scientific opinions from the witness stand which in effect positively identify the defendant based on the slightest bit of circumstantial evidence.” Two years later, the Oklahoma Criminal Court of Appeals ordered a new trial for a man convicted of raping and killing a woman,saying that Gilchrist provided “improper” testimony. And in 1999, a federal judge ruled that Gilchrist had given testimony in a case that was “terribly misleading, if not false.” In 2000, the Association for Crime Scene Reconstruction expelled her for giving testimony that misrepresented the evidence.
Although Gilchrist survived for many years, she was ultimately brought down by a sweeping laboratory misconduct investigation that found her work to be deeply flawed. In 2001, Jeffrey Pierce, who spent 15 years in prison for rape, was released after DNA tests revealed that the sperm and hair found at the crime scene did not belong to Pierce. Gilchrist, whose testimony was critical in Pierce’s conviction, said that the hairs collected at the scene matched his. After Pierce’s attorneys requested the DNA testing, chemists reviewed Gilchrist’s evidence and determined that her testimony didn’t match the facts. The FBI was commissioned to review Pierce’s case as well as several others, and produced a harsh report, which concluded that Gilchrist “made statements that went beyond the acceptable limits of science.”
The report found that Gilchrist made DNA matches that other chemists considered unmatchable and recommended that the state re-examine all the cases she had participated in. Moreover, an internal police investigation into Gilchrist’s work revealed major flaws, including missing evidence in major cases and three years worth of blood analysis files nowhere to be found. In May 2001, then-Governor Frank Keating ordered a review of thousands of Gilchrist’s felony cases, and in September 2001, she was fired. In 2009, Gilchrist agreed to pay $16.5 million in damages after being sued by a former inmate, but she never faced criminal charges.
Disgraced and jobless, Gilchrist packed her bags and settled into a low-profile life in Texas. A local news station later tracked her down in Houston, where she spent her days working at a candle-making factory.
McCarty was among those whose conviction was strongly influenced by Gilchrist’s testimony. By the time he caught wind of the FBI investigation, he had already lost hope that his innocence would release him from death row. His first conviction was overturned by the Oklahoma Court of Criminal Appeals due to prosecutorial misconduct, but he was retried in 1989, with Gilchrist again testifying for the state. She said that the hairs found at the crime scene could have belonged to McCarty, and he was convicted and sentenced to death again. Macy led both of the prosecutions against McCarty. An appellate court upheld the conviction in 1995 but reversed the death sentence. In 1996, a new jury heard four days of testimony and sentenced McCarty to death for the third time.
McCarty’s past didn’t endear him to the courts. “The courts had seen the misconduct from Gilchrist and Macy, but they resisted it so strongly,” Starger said. “And they resisted it both because of the institutional cover yourself stuff, but also because Curtis at one point had been a bad guy. And there’s this very good and evil way of seeing things that blinded everybody to the reality that he was innocent.”
As McCarty languished on death row, the constant, looming presence of death wore on him. So did the executions of people he grew to call friends. A few months before getting his mom’s letter, McCarty’s closest friend, Billy Ray Fox, was executed. Billy’s death hit him in the gut. “I was heartbroken. I was furious,” he said. Billy wasn’t the only one. Several people he’d become close to, a “good portion” of whom he believes were innocent, were killed during his time on death row.
“I had to see them all executed,” he said. “Nobody made it. I was the only one.”
After a decade on death row, McCarty stopped making friends. He knew how the story would end. “You sit there and watch them come out of the cell one day with the chains on and you never see them again.”
By 2001, McCarty had concluded that he wasn’t going to make it out alive. But his entire perspective changed when he saw the article in his mom’s letter. “I just knew that somehow they would find out about me,” he explained. “And they did.”
DNA tests conducted in 2001 excluded McCarty as the source of semen found on Willis’ body, and in 2003, the Innocence Project became involved in McCarty’s case. In 2005, citing government misconduct and new DNA evidence revealing that the semen was not McCarty’s, the Court of Criminal Appeals overturned McCarty’s conviction. Further DNA testing in 2007 revealed that scrapings under Willis’ fingernails and a bloody footprint found on her body did not come from McCarty.
In 2007, McCarty was released from prison after a judge dismissed an indictment against him that would have resulted in a new trial. He was the third person in Oklahoma to have a conviction overturned by DNA evidence after serving on death row. In a statement released after McCarty’s exoneration, the Innocence Project called it “one of the worst cases of law enforcement misconduct in the history of the American criminal justice system.” The organization zeroed in on the practices of Cowboy Bob: “Macy has said that executing an innocent person is a risk worth taking — and he came very close to doing just that with Curtis McCarty.”
In 1989, when McCarty’s first conviction was overturned, the Court of Criminal Appeals blastedMacy for his behavior, calling his conduct “improper” and “unprofessional.” As mentioned earlier, it was determined that Gilchrist, who testified in both of McCarty’s trials, revised her original notes and hid or destroyed evidence to secure McCarty’s conviction.
Macy and Gilchrist irrevocably changed the course of McCarty’s life, and while he was ultimately released, he lost 16 years to a death row prison cell. Unlike McCarty, nearly half of the 23 people Gilchrist’s testimony helped send to death row were executed before their cases could be reviewed. In 2007, the Innocence Project found that 20 people convicted under Macy were executed, but a ThinkProgress review of Oklahoma’s execution statistics suggests that number may be as high as 38.
One thing is clear: Macy sent 54 people to death row during his tenure as District Attorney.
“The problem is, nobody really knows how many of those people are actually guilty,” said Brady Henderson, legal director of the ACLU of Oklahoma.
Macy and Gilchrist are no longer around to answer lingering questions about their work. Cowboy Bob passed away in 2011; Black Magic in June of this year. Opinion does not appear settled on which of the two was more to blame, however. “When I look back on Bob Macy, I see more of a rabid monster than a role model,” said Henderson. “Macy probably did some good in his time, there’s no doubt of that, but at a really terrible price. He really didn’t seem to have any sympathy or empathy about the idea of sentencing people to their deaths, even those who may never have been guilty. That’s really the definition of somebody being psychopathic or sociopathic.” Public defender David Autry described Macy as “extremely self-righteous” and said that his office used “junk science from Joyce Gilchrist.”
In 1999, The Chicago Tribune singled out the cowboy prosecutor’s behavior: “Macy has cheated. He has lied. He has bullied. Even when a man’s life is at stake, Macy has spurned the rules of a fair trial, concealing evidence, misrepresenting evidence, or launching into abusive, improper arguments that had nothing to do with the evidence, according to appellate rulings condemning his tactics.”
Another Oklahoma County Public Defender, Bob Ravitz, said he thought Macy “was an honest man” and even attended the former D.A.’s funeral. “Do I think he told Joyce Gilchrist to lie?” Ravitz wondered. “No I don’t. Do I think he knew that she was lying? No I don’t. I personally don’t think Macy was a corrupt individual. I don’t like the stance he took in the courtroom… But I don’t believe that he was a dishonest person.”
Ravitz, meanwhile, was not so forgiving with Gilchrist. “She was a fraud from the day she was hired in the police department,” he said. “She had the ability to sit there and make something out of nothing… Nobody cared because she was doing what law enforcement at that time wanted. And that was putting away bad guys.” He believes that Gilchrist was motivated by the desire to be liked and praised — to be the best chemist — and as an employee of the police department, that meant securing convictions. “Joyce Gilchrist did not care whether she convicted an innocent person or a guilty person,” Ravitz said. “She just cared about closing a case.”
Others view the chemist’s actions in a more nuanced light. Constance Johnson, chair of the Oklahoma Coalition to Abolish the Death Penalty and a former state senator, believes that Gilchrist’s motivations were inextricably linked to race and racism. After all, “Black Magic” was black.
“Everything I deal with here has its basis in race,” Johnson remarked. “People are now trying to place all responsibility on her. If anything, she was trying to pass as a black woman in a white man’s world.” By doing whatever she could to gain her superiors’ favor, Gilchrist, simply “ended up being a pawn in the game,” Johnson concluded.
McCarty was also more sparing in his evaluation. “If Joyce Gilchrist had been arrested and prosecuted, I would have sat behind her at trial, as one of her supporters. Because she was a scapegoat. She didn’t have the means or the authority to affect all of these false prosecutions. That was Robert Macy and the homicide detectives… She was just a cog in the machine, nothing more.”
What is indisputably clear is that Macy, with the assistance of Gilchrist, had a profound impact on Oklahoma County. And his legacy is still playing out today, with the direst of consequences. As Robert Dunham, the executive director of the Death Penalty Information center, pointed out, “When you look at Richard Glossip’s case and you try to assess the reliability of the evidence and the credibility of the state’s witnesses and the truthfulness of the prosecution’s representations, all of that has to be understood in the context that this was an office that was over-seeking death, overproducing death, and engaging in misconduct at an alarming rate.”
In April 1998, Richard Glossip was first sentenced to death under then-D.A. Macy. In 2001, an Oklahoma appeals court overturned the first conviction, finding that Glossip’s lawyer’s “conduct was so ineffective that we have no confidence that a reliable adversarial proceeding took place.” Glossip was sentenced again in 2004. That time, he was convicted under a new Oklahoma County District Attorney, Wes Lane, who was appointed in 2001 after Macy retired. Before taking the position of D.A., Lane worked as an Oklahoma County prosecutor. Lane’s office was essentially viewed as a continuation of Macy’s, Henderson of the ACLU explained. “Generally his image was very pro-death penalty. The one difference is he did not try to be [the] colorful public persona that Bob Macy did. But in terms of the running of the office, I think there were very few personnel differences, very few things that really changed in terms of how the office was run.”
So where does Oklahoma County’s current District Attorney, David Prater, stand? Prater, who reviewed Glossip’s case and concluded that he did not find any new evidence, has dismissed last-minute appeals and claims of new evidence filed by Glossip’s attorneys as a “bullshit PR campaign.” Glossip’s attorneys, meanwhile, have also accused Prater of bullying and intimidating defense witnesses.
From 1993 to 2001, Prater worked under Macy as an Assistant D.A. He was elected in 2006 on a platform of reform, and for the first few years of his term, there was a significant reduction in the number of people sent to death row. But Henderson of the ACLU said that Prater’s office has reversed course. “Prater’s office is seeking the death penalty more and death penalty cases in Oklahoma County are on the rise to levels unseen since the Macy days. For those of us who see Macy’s tenure as a dark time for Oklahoma justice, that rise is disturbing,” he said. In 2015,according to the Oklahoma County Department of Corrections monthly death row roster, two Oklahoma County convictions were added to death row.
Bob Ravitz, the Oklahoma County public defender, said he thinks “they’re still pursuing the death penalty way too much. There were five or six years, probably from 2007 to 2012, when the death penalty was used very sparingly in Oklahoma County. I’m not sure I would agree with that anymore.”
Prater’s office did not respond to numerous ThinkProgress inquiries about death penalty sentencing data in Oklahoma County over the past several years.
This is not just the story of one rogue prosecutor and his protégés, however. What Macy represented may well be true for an astonishingly high fraction of death penalty convictions and executions in the U.S. Capital punishment is a system reliant on geography, not justice. Whether a person will get the death penalty often depends not on the heinousness of the crime one commits, but the county in which he or she resides.
In Caddo Parish, Louisiana, prosecutor Dale Cox has publicly proclaimed that the state should “kill more people.” Since 2010, Cox has secured nearly half of the state’s death sentences. But the culture of death extends beyond Caddo Parish. According to a 2003 New York Times article, the district attorney in East Baton Rouge, Louisiana, celebrated death sentences with parties “replete with steak and Jim Beam.”
In Florida, Duval County prosecutor Bernie de la Rionda has secured 10 death sentences since 2008; three of those cases were reversed by the Florida Supreme Court. And in Arizona, Maricopa County ranked fourth (as of January 2013) among U.S. counties in the number of inmates on death row. In 2010, the Maricopa County District Attorney, Andrew Thomas, was disbarred for prosecutorial misconduct.
In high-use counties, prosecutors like Bob Macy have made the death penalty a high priority — and, with some of the highest reversal rate and mistake rates, many of them have also been responsible for deep miscarriages of justice.
It may be easy to lose sight of the human impact of this system. But Curtis McCarty is a product of it: When he was finally released from death row in 2007 — the Friday before Mother’s Day — McCarty didn’t feel like there was anything to celebrate. He called it a “terrible day… One second I’m on this side of the door wearing chains like an animal, and just a mere seconds later, I was standing on the other side of that door. And that’s the only thing that changed.”
“They ruined me,” he continued, his voice rising. “They didn’t just destroy my name, they destroyed my mind. I had to sit and witness the most horrific situations imaginable — just day after day of misery locked in that box. Twenty-four hours a day, locked in this tiny little box.”
McCarty now travels throughout the country and the world, giving lectures about his experience. But it doesn’t take much to bring him back to that tiny little box. It happened to him just a few weeks ago after hearing that Richard Glossip’s execution was stayed.
“It just freaked me out. It does every time,” McCarty said. ”I could see that room, I could see those gray walls, I could hear the slamming of those steel doors, the handcuffs clicking, and shackles, and the smell of that visitor’s room where you gotta go visit your family.” He paused. “Never forget.”