Prosecution Witness Put Under the Microscope

Oklahoma Gazette | March 9, 2005
Since the day an FBI report, describing erroneous science inside the Oklahoma City Police forensic lab, was leaked to the media nearly four years ago, the public has wondered whether this is more than just bad science. A case now pending before the state Court of Criminal Appeals could provide some answers.

The case is Curtis Edward McCarty, convicted and sentenced to death for the 1982 murder of Pamela Kaye Willis.

His first conviction and death sentence from 1986 was overturned. A second death sentence at the retrial in 1989 was thrown out. “Eddie” McCarty eventually was given the death penalty in 1996.

Now the circumstances of the case have turned attention away from the guilty party and redirected it to the person credited with sending McCarty to prison these past 20 years — Joyce Gilchrist.

The former forensic chemist was terminated from her job of 21 years with the Oklahoma City Police Department laboratory in 2001 and publicly disgraced by numerous investigations and court rulings alleging shoddy work. Through her examinations and court testimonies, Gilchrist sent hundreds of people to prison, many to death row, some already executed.

Oklahoma Gazette obtained unsealed documents from the McCarty case, in which investigators allege Gilchrist’s work is more than just shoddy. The findings include:

— allegations Gilchrist may have purposely falsified reports to incriminate McCarty.

— Gilchrist destroyed evidence in violation of state statutes.

— Gilchrist was hired by the Oklahoma County district attorney’s office for casework after she was fired from the police department.

— Gilchrist supervised a staff that routinely poured blood, possibly HIV-infected, down regular sinks.

— Gilchrist may have intentionally lost or destroyed evidence that could dispute her findings.

At her termination hearing before a police department review board in August 2001, Gilchrist was asked when a court of appeals said she was not being fair to the defense whether she thought that was a warning to her. She replied, “Well, no, I don’t, I really don’t.” >>>

It was a mantra that greatly concerned Oklahoma City Police Capt. Byron Boshell during his internal investigation into Gilchrist’s actions.

“We are not the prosecutor’s office,” Boshell testified during Gilchrist’s termination hearing. “And that’s what I have maintained all along, is that the prosecutor’s office was running our lab.”

The case

Pam Willis was a police officer’s 18-year-old daughter involved in drugs, according to reports. Police found her body on the kitchen floor of a house at 427 S.W. 39th, where she was staying with a friend Dec. 10, 1982. A bedsheet was wrapped around her head, tied with a rope. A knife was embedded in her chest. She had been raped and murdered, and in the world of narcotics, the suspects were plenty.

It would take three years for detectives to arrest McCarty and charge him with murder.

McCarty was first interviewed by police in March 1983 and at the time gave hair samples, according to reports. He told detectives he met Willis through other friends the previous spring and saw her the night before she was killed. He claims Willis was trying to score some acid and one of her friends contacted McCarty to help out. McCarty said he and two of his friends drove over to see Willis and delivered the drugs. He mentioned Willis had been accused of stealing drugs from friends and she may have been killed due to drugs or ripping people off.

But the story was different when police interviewed McCarty again two years later. According to a police report, investigators picked up McCarty in February 1985 after receiving new information that focused attention on McCarty for the murder. Police interviewed some of McCarty’s acquaintances, who said he was near Willis at the time of the murder.

By this time, police had learned who McCarty’s drug connection was and that another witness said McCarty told him he had not killed Willis, but his drug connection did.

The drug connection was Rickey Andrew Terry.

McCarty verified what police had learned, that he helped Terry find potential drug buyers. McCarty supplied the users, while Terry supplied the drugs, getting paid either by cash or sex.

McCarty said he drove Terry to Willis’ house, where Terry was to give Willis her drugs and have sex with her. McCarty said he dropped Terry off and when he returned, he saw a body lying on the kitchen floor. Then Terry grabbed McCarty and said, “Let’s go.” McCarty told detectives Terry was mad because “That bitch got in my bag,” referring to a bag McCarty said Terry carried around that contained drugs and cash. After giving the statement, McCarty was placed under arrest as an accomplice to the murder. Terry also was arrested and charged with Willis’ murder, but the charge later was dismissed.

At the time, McCarty was an “uncharged principal” in a 1983 murder case, giving police suspicion for his involvement. Documents show he also pled guilty to raping a 14-year-old Moore girl in 1985.

He also was connected to Willis’ murder by the rope found at the murder scene, which was similar to rope manufactured at the plant where McCarty worked.

According to a detective’s report, McCarty truthfully answered questions to a lie-detector test. Terry did not.

At trial, McCarty’s ex-girlfriend testified McCarty told her he was hired to kill Willis because she had stolen drugs or money. But she admitted she was on acid when McCarty allegedly confessed.

McCarty used an alibi as his defense and had a friend testify he was at a party at the time of the murder.

Enter Joyce Gilchrist.

The young chemist had joined the Oklahoma City Police lab in 1980 shortly before she graduated from college. The McCarty case would make her a star with the police and DA’s office. Upon the death sentence, former District Attorney Bob Macy told The Oklahoman the re-examination of hair evidence was crucial to the decision that McCarty was the suspect.

‘Black Magic’

The Willis murder happened in the dark days before DNA testing could pinpoint suspects. The old world of forensic science testing blood, semen and hairs was not exact, but it could eliminate suspects. It may have eliminated McCarty.

Part of McCarty’s current appeal includes documents he claims show Gilchrist eliminated him as a suspect then deliberately changed her findings to implicate him for the murder. One of the key pieces of evidence in the case was hairs collected from the crime scene. In a lab note dated Nov. 15, 1984, part of the unsealed evidence, the chemist wrote:

“Hair samples from the following people have been eliminated as being consistent with the foreign hairs in this case.”

No. 19 on the list is “E. McCarty.” The next day, Gilchrist typed up her examination report, based on her lab work, listing the same names as being eliminated from her testing. But in the typed report, lines have been drawn through McCarty’s name, appearing to cross him off the list. Gilchrist testified she had not totally eliminated McCarty based on her lab notes from 1983 and 1984.

The question with the lab note from 1984 surrounds the use of ink. Gilchrist’s note mainly is written in blue ink. Next to McCarty’s name, an asterisk has been marked, but in black ink. At the bottom of the note, the asterisk is defined as “must include qualifier,” also in black ink.

In her testimony from the termination hearing, Gilchrist said she simply picked up different-colored ink pens while writing her notes.

During the police department’s internal investigation in 2001, document examiners with the Tulsa Police Department were asked to review Gilchrist’s reports and lab notes. They concluded some of her work had been altered, pointing to the different-colored inks used in the lab notes as signs of tampering.

Attorneys for McCarty allege Gilchrist changed the report the following year because names of other suspects are handwritten on the right side of the report. One of the names is R. Terry.

More questions surface about Gilchrist’s work on the case when reporting the number of hairs examined. The police review board found a November 1983 report indicated two pubic hairs, one consistent with McCarty, and three body hairs were examined as “Item 39” for a total of five hairs. They noted the number “3” seemed to be altered from a “4.”

“It appeared to the board that Gilchrist changed the number of body hairs to three and added the second pubic hair she claims is consistent with McCarty,” the board wrote in its 2001 report.

The number would continue to change.

In notes and a report written three days before the start of the first trial in 1986, Item 39 now consisted of four body hairs, one pubic hair and a scalp hair not mentioned in her 1983 notes. The total now is six hairs.

At the trial, Gilchrist explained about identifying one pubic hair consistent with McCarty that had been “inadvertently deleted” from her report. She goes on to say four body hairs, one pubic hair and the scalp hair were examined and found not consistent with McCarty. But the total of hairs now is seven.

After the 1986 conviction was overturned, Gilchrist filed an amended report three weeks before the second trial in 1989 stating Item 39 was a typographical error, not a deletion. The amended report identifies the item as one pubic hair consistent with McCarty, four body hairs and the scalp hair not consistent. The total number of hairs examined went back to six.

The review board wondered what happened to the second pubic hair not consistent with McCarty from her previous notes and testimony.

Several investigations into the matter concluded Gilchrist did eliminate McCarty and at a later time, possibly years, changed the documents to implicate him. Investigators contend that after the first conviction was overturned, due in large part to Gilchrist’s testimony, the chemist needed to get her story straight.

“In my opinion, she met with somebody who showed her the (court) opinion and they had to change the forensic report to reflect her testimony, which was that one of the pubic hairs was consistent with Mr. McCarty,” said Richard Smith, assistant municipal counselor for Oklahoma City, at an evidentiary hearing last October. Smith conducted the police department investigation into Gilchrist in 2001.

Complicating matters more, Item 39 now is missing.

In early 2000, the state attorney general’s office asked Gilchrist to review evidence in the case. She responded in a memo April 4, 2000, stating all remaining evidence had been examined, including Item 39, and enough existed to conduct DNA testing. The following June, McCarty’s attorneys informed Gilchrist they wanted to view the evidence. On June 13, she wrote out a receipt showing she had picked up the evidence from the district attorney’s office. When defense attorneys arrived at the lab three days later, the hair evidence was gone.

A week later, Gilchrist sent a memo to Boshell saying there were no records to show evidence was ever returned to her from the district attorney’s office since 1998. The police review board ruled Gilchrist was untruthful to Boshell in her memo.

In their consideration of McCarty’s petition, the state Court of Criminal Appeals asked Oklahoma County District Judge Twyla Mason Gray to investigate 16 questions the court wanted to consider. Gray ruled “yes” to the question of whether critical evidence had been lost or destroyed and that Gilchrist was the last person to possess the evidence.

In her testimony during the termination hearing, submitted to Gray, Gilchrist’s explanation was she looked only at photocopies of the evidence, not the actual evidence itself.

But Gray wasn’t buying it.

“If she relied only on copies of the lab slides to base her opinion that the samples were sufficient for DNA testing, she is grossly incompetent,” Gray wrote in her findings to the appeals court. “If she relied on the slides themselves, she lied.

“This court finds that she most likely did destroy or intentionally lose the evidence, acting in bad faith.”

Gray further noted Gilchrist had strong motivation to get rid of the evidence since attorneys were pushing for DNA testing. The hair samples were considered the coup de grace in convicting McCarty.

Whether she had the right number of hairs or whether she doctored her reports and notes, criticism would persist.

In her hair examinations, Gilchrist compared hairs taken from McCarty at the time of his arrest in 1985 with hairs taken from the crime scene three years earlier. Chemists testified at the termination hearing and before Gray that results are unreliable when hair comparisons are more than a year apart.

In 2002, DNA testing was done in this case and may bolster McCarty’s claim of innocence. Semen recovered from Willis’ body was tested, revealing no DNA evidence linked to McCarty. While Gray ruled this erodes the prosecution’s theory McCarty killed Willis because he raped her, the judge was not convinced it cleared him of murder.

In Gray’s final analysis, she ruled McCarty did not receive a fair trial.

When asked whether tests were done to see whether semen matched Terry’s DNA, McCarty’s attorneys said they had yet to locate Terry.

Gilchrist’s body of work, nearly 1,600 cases, has been reviewed by numerous agencies, including the FBI, Oklahoma State Bureau of Investigation (OSBI), state attorney general’s office, Tulsa Police Department, private laboratories and her former employer.

In one critical report, the OSBI examined her testimony in the McCarty case and compared it with her reports. If they had reports to compare with. Examiners said there is no documentation to support Gilchrist testifying she examined a saliva sample from McCarty, or that she found a red substance, like nail polish, on the rope.

Examiners were dumbfounded by a Gilchrist statement during trial that an entire strand of hair is needed for analysis because it must be examined from root to tip, never the reverse. The investigators responded, “WHAT IN THE WORLD IS SHE TALKING ABOUT?” OSBI’s Doug Perkins testified during a hearing before Gray that it doesn’t matter where on the hair analysis starts.

At her termination hearing, Gilchrist told the review board her nickname in the department is “Black Magic.” She said it started after a defense attorney referred to her in closing statements as a


‘That wasn’t my fault’

Gilchrist has spoken very little in public about her work and criticisms.

In the unsealed documents, Gilchrist’s defense of her work is detailed in the transcript testimony of her termination hearing in August 2001. Her attorney, Melvin Hall, who declined comment for this story, pointed out during the hearing numerous awards and citations for exemplary work, several from the district attorney’s office. One letter states:

“The detectives and prosecutors have made it known that your professional demeanor and poise on the witness stand, as well as your reputation as a scientist, helped provide the justification for the jury to convict McCarty.”

She received a letter of appreciation from former District Attorney Bob Macy regarding the Jeffrey Todd Pierce case. Pierce was released from prison after 15 years because of DNA testing that proved he did not commit rape. Gilchrist said Pierce should not have been released until further DNA testing had been done on hair samples.

Gilchrist, as well as forensic chemists under her supervision, admitted to destroying rape evidence after two years from the crime, although the statute of limitations is seven years. According to her testimony, Gilchrist said it was department policy and she never did it without authorization. She also claimed she didn’t know about the statute of limitations.

A major reason for her termination was mismanagement of the lab, particularly the storage of evidence. Several examples of evidence misplaced, improperly stored or discarded were brought up during the termination hearing.

Gilchrist said the district attorney’s office typically would not take care of evidence and return it in a mess. She testified it was not her responsibility to store evidence because the department had an evidence officer.

Testimony was given that chemists in the lab routinely poured biological fluids like blood and urine down a regular sink drain. Some of the blood probably was HIV-infected, according to Boshell. Gilchrist testified she had no idea they were doing that and would have put a stop to it if she had seen it.

In October 2000, the lab freezer that stored evidence malfunctioned and corrupted several items inside. Boshell testified the freezer had been worked on in 1999 and the repairman warned Gilchrist it needed to be defrosted, which was the cause of the malfunction. She responded to the blame by pointing at a sergeant who stacked evidence improperly “and as a result of that, ice developed on some evidence.” She said she told the sergeant to take care of it, but he never did.

Gilchrist was accused of wasting public money when she authorized the purchase of thousands of dollars in equipment that never was used. She testified that at the time when the department was building a new lab, some of the purchases were recommended by OSBI and that by the time the lab was open, technology had changed, so the equipment wasn’t needed.

“That wasn’t my fault,” she told the review board.

In his closing remarks to the review board, Richard Smith called Gilchrist’s excuses smoke and mirrors.

“It’s always somebody else’s fault,” he said.

Acting alone?

For years, even before the Gilchrist controversy erupted in the media, defense attorneys screamed the chemist was not acting alone. They blamed the district attorney’s office for guiding Gilchrist in her questionable work to obtain convictions.

It seemed like usual complaining coming from the team that frequently was on the losing side to the likes of Bob Macy. But the McCarty case may give some weight to the belief.

The office of current Oklahoma County District Attorney Wes Lane declined comment.

Boshell maintained Macy and his team were running the forensic lab. Gilchrist’s work through the years helped the DA’s office win many convictions. Her star power was such she became a protected commodity, even in the face of court challenges concerning her tarnished credibility.

“Mr. Macy and his staff ... feel confident that she can be prepared by them to minimize challenges to her credibility and character,” according to a memo written by Boshell after a conversation he had with Macy.

Boshell believes this power protected Gilchrist from internal conflicts with co-workers who questioned her work and management style while in the lab but were afraid to file grievances.

“Ms. Gilchrist had amassed a lot of political clout inside the police department, was friends with people and they (other chemists) feared even to do that,” Boshell testified as to why grievances never were filed, including from himself when he was Gilchrist’s supervisor. “Did I fear that? Did I fear her political power? Absolutely.”

At the evidentiary hearing before Judge Gray, prosecutors pointed out there is no evidence from any trial implicating their office of the accusations. In fact, one of McCarty’s former attorneys vouched for a member of the DA’s staff.

David Autry represented McCarty during his second trial in 1989. At last October’s evidentiary hearing, Autry gave high praise for one of the men who prosecuted McCarty, Barry Albert.

“I like Barry Albert very, very much, both as a prosecutor and as a defense lawyer,” Autry said. “I don’t think this was anything he did. I think it was something that Ms. Gilchrist, for whatever motives, did on her own.”

One development that shocked Richard Smith when he testified at the hearing was that Gilchrist had gone to work for the DA’s office.

“When Ms. Gilchrist was suspended by the department, she came over here in the DA’s office and was working on the Lott-Miller case,” Smith said. “After she was fired, she was still over in the DA’s office working on the Lott-Miller case.”

Gilchrist had examined hairs in the case and implicated Robert Lee Miller as the killer of Anna Laura Fowler and Zelma Cutler in 1986 and 1987. A jury convicted Miller and he was sentenced to death in 1987. Eight years later, DNA testing exonerated Miller and pinpointed Ronald Clinton Lott as the murderer. Miller was released from prison in 1998. Lott was convicted of the murders in December 2001.

The Court of Criminal Appeals specifically asked Gray whether prosecutors hid or suppressed some of Gilchrist’s work in the McCarty case from the defendant. Gray ruled “no.”

In her report to the appeals court, Gray cleared prosecutors from any misconduct. Along with no findings of suppressing Gilchrist’s work, Gray found no evidence the state knowingly presented false testimony or hid evidence relating to Gilchrist’s testing or its chain of custody.

In its briefs to the appeals court, the state tries to put some distance between itself and Gilchrist but firmly believes McCarty is guilty of the crime. The state points out that McCarty and his attorneys discredited Gilchrist during the second trial in 1989, yet a jury found him guilty and that conviction has been upheld.

“This fact alone supports an inference that (McCarty) received a fair trial,” Assistant Attorney General Seth Branham wrote.

The state also claims although DNA testing proved the semen did not come from McCarty, its theory has been McCarty and another person killed Willis.

While the appeals court has gone through retirements, resignations and new appointments since Gray submitted her findings, a verdict still is expected in the coming weeks. McCarty is seeking a full dismissal and release from McAlester’s death row or, at the very least, a new trial, which would be the fourth in 20 years.

But after all the investigations by the FBI, OSBI, attorney general’s office and the police department, Gilchrist has yet to be charged with anything. Smith told Gray the FBI was too concerned about the statute of limitations on perjury to pursue a case.

Should McCarty be granted another trial, it will be interesting to see what evidence is used against him. Even more importantly, will Joyce Gilchrist take the stand?

Oklahoma Gazette

In its inaugural issue of Oct. 15, 1979, Oklahoma Gazette, at that time an upstart, bimonthly publication with a mere 2,000 circulation, featured a page-one story about the Oklahoma City Council’s recent passage of an urban conservation district. Hardly sexy...
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