The Mills of Justice

National Review, Oct 27, 2003 by Jack Dunphy

Death and Justice: An Expose of Oklahoma's Death Row Machine, by Mark Fuhrman (Morrow, 288 pp., $25.95)

First, full disclosure: I knew Mark Fuhrman for many years when he worked for the Los Angeles Police Department. We were neither partners on the job nor close friends away from it, but I never knew him to be anything but a good cop and a good man, one who made the unfortunate mistake of allowing his darkest thoughts to be recorded for posterity. I have never believed for a moment that he tampered with evidence in the O. J. Simpson case. Simpson killed those two people, and anyone who believes otherwise is pathetically deluded. If they can bring themselves to read this book, those who cling to the belief that Fuhrman is some kind of latter-day Bull Connor will find their opinions of the man challenged, for it is an account of how his own opinions of the justice system and the death penalty were challenged and ultimately transformed.

Fuhrman hosts a radio show on KXLY in Spokane, Wash., and one day in October 2001 his on-air guest was Jack Dempsey Pointer, president of the Oklahoma Criminal Defense Lawyers' Association. "It's a mess down here in Oklahoma," Pointer told him. "We're executing people; we don't know if they're innocent or guilty. It's a regular death factory." Fuhrman was skeptical. "If you don't believe me," Pointer said, "then come on down and see for yourself." To his credit Fuhrman did just that, and what he discovered shocked him, as it should shock anyone who believes that only the truly guilty are convicted of murder and sentenced to death.

Fuhrman introduces us to Bob Macy, who in his 21-year career as district attorney for Oklahoma County, Okla., sent 73 men and women to Death Row, more than any other prosecutor in the country. Macy was something of a legend in Oklahoma, a law-and-order man in a law-and- order state. Unlike most district attorneys, who serve as administrators over their offices and leave the trial work to subordinates, he participated in many of these death-penalty cases himself, making tearful, fire-and-brimstone closing arguments before juries made up of people who believed in him and had voted for him. According to Fuhrman, when Macy announced to the public that only the death penalty would properly serve the interests of justice in a murder case, the entire machinery of the local justice system compliantly kicked into gear and brought this desired outcome to fruition. Such a force was Macy in Oklahoma politics that most local judges, subject to reelection as they were, were reluctant to challenge him. And appellate judges in Oklahoma are subject to retention elections as well; though appellate panels often found fault with certain aspects of Macy's death-penalty cases when they came up on automatic appeal, they dismissed these faults as harmless errors-allowing both the convictions and the death sentences to stand.

As those who watched the O. J. Simpson trial remember, Fuhrman was a homicide detective for the LAPD, and he brings the insights gained over the course of his own 20-year career to bear on those Oklahoma detectives who, he believes, came to premature conclusions about some murder suspects, then tailored their investigations so as to exclude any evidence that did not fit their theories of how the crimes had been committed. When such a theory was then challenged by defense attorneys at trial, Bob Macy would come up with some wildly speculative alternative. For example, when the alibi of one murder defendant was supported by twelve witnesses, Macy argued that the defendant must have traveled by private jet to traverse the 300 miles that separated him from the crime scene. Macy offered no evidence that the defendant had actually made such a flight, yet the jury convicted the man and sentenced him to death. The conviction was later overturned by the U.S. Court of Appeals for the Tenth Circuit, but the man served six years on Death Row before being released.

Fuhrman is also harshly critical of another player in the Oklahoma County criminal-justice system, forensic chemist Joyce Gilchrist, formerly of the Oklahoma City Police Department. Because of her ability to get results no other chemist could, one homicide detective nicknamed her "Black Magic." Fuhrman concludes that she came up with results that eluded others only by ignoring evidence that pointed away from anyone and anything that did not handily fit the detectives' preconceived theories. In the days before DNA testing, forensic chemists such as Gilchrist used conventional techniques such as blood typing and hair analysis to identify or eliminate suspects in a given crime, but the results of such tests can be subject to much subjective interpretation.

Gilchrist was only too willing to interpret them in a manner that buttressed the theories put forward by police. Detectives would bring Gilchrist evidence collected from a suspect they wanted to arrest in a given crime, and she would provide them with the forensic evidence they needed to bring the case to Bob Macy's office. Macy, in turn, would argue the case to his faithful jurors, aided of course by the testimony of these same detectives and Joyce Gilchrist. Defense attorneys, uneducated in the science and overmatched by the sheer power of Macy's courtroom persona, watched helplessly as their clients were convicted and sentenced to death. Gilchrist was finally dismissed from the police department after investigations by federal and state authorities revealed her to be incompetent at best and malicious at worst. Fuhrman writes: