'All together, these five prosecutors are responsible for the equivalent of one out of every seven people currently on death row.'
The folks at Harvard didn’t mean it as a compliment when they ranked the late Oklahoma County District Attorney Bob Macy as the nation’s #2 “deadliest prosecutor.”
But Macy would probably wear that moniker as a badge of pride, along with his trademark black string tie.
On his desk, Macy kept a stack of baseball cards showing a photo of him riding a horse and stats on the back, including the “nation’s leading death penalty prosecutor.” A poster of the movie Tombstone adorned his office wall, promising that “Justice is coming.”
Macy served as Oklahoma County’s DA for 21 years, retiring in 2001. He died in 2011.
“‘Cowboy’ Bob Macy sent more people to death row than any other individual district attorney in the United States,” says the new study, “America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty.”
The study was conducted by Harvard Law School’s Fair Punishment Project.
The study coincides with Saturday’s 40th anniversary of the U.S. Supreme Court’s landmark 1976 death penalty case, Gregg v. Georgia. The U.S. Supreme Court ruled in that case that the death penalty did not, on its face, violate the 8th Amendment to the Constitution’s prohibition against cruel and unusual punishment.
Harvard Law Professor Ronald Sullivan said the report “suggests that the ‘win-at-all-costs’ mentality adopted by a small group of prosecutors has led to shockingly high rates of prosecutorial misconduct and wrongful convictions.”
The five prosecutors profiled in the study obtained a combined total of 440 death sentences, approximately 15% of the current U.S. death row population. In Oklahoma, inmates that Macy sent to death row include Richard Glossip, whose case has drawn international attention from supporters who say they believe Glossip is innocent or that his case did not merit the death penalty.
“When four of the five deadliest prosecutors left office (the fifth prosecutor is still in office), death sentencing dramatically declined in these jurisdictions, indicating that it was these individual personalities, not an excessive attachment to the death penalty by local residents, that drove up the rates of death sentencing,” the Fair Punishment Project states in a release.
The study also notes a high rate of misconduct and errors among the three prosecutors, including Macy, who tried their own cases.
The study’s findings include:
- Three of the five deadliest prosecutors — Macy, Joe Freeman Britt of Robeson County, N.c.; and Donald V. Myers of South Carolina’s 11th Judicial District — had rates of misconduct found by courts in 33%, 37%, and 46% of their death penalty cases respectively. (The other two prosecutors oversaw but didn’t try all of the death penalty cases in their counties.)
- The other two prosecutors named in the study — Lynne Abraham of Philadelphia County, Pa; and Johnny Holmes of Harris County, Texas — oversaw offices that obtained over 100 and 200 death sentences respectively during their terms in office.
- All together, these five prosecutors are responsible for the equivalent of one out of every seven people currently on death row.
- Four of the DAs either prosecuted or oversaw prosecution of eight people who were later exonerated and released. Three of the exonerations were from Oklahoma County: Curtis McCarty, Clifford Henry Bowen, and Robert Lee Miller, Jr. (However Oklahoma County District Attorney David Prater disputes that McCarty’s case was an “exoneration.”)
One prosecutor remains in office. When the remaining four left office, cases resulting in death sentences declined dramatically, “indicating that it was these individual personalities, not an excessive attachment to the death penalty by local residents, that drove up the rates of death sentencing,” the study states.
During the past six years, Oklahoma County juries have sentenced just three defendants to death. Macy’s term averaged 2.6 death sentences every year. Though support for the death penalty is declining nationally, the study’s authors assert that decline alone does not account for the dramatic decrease after these prosecutors left office.
Macy: ‘Product of his time’
The study’s author, Robert J. Smith, told The Frontier that even compared to prosecutors who favored the death penalty, Macy was an outlier. Smith is a legal fellow at Harvard Law School and one of the report’s researchers.
“It doesn’t make a lot of sense to say, ‘Well, let’s compare Oklahoma and Maine’ or something but there are a lot of places across the country with big metropolitan areas where people could be perceived as wanting the death penalty … and Bob macy stands out, especially the number he personally tried himself.”
Smith said some of the decline is due to changing attitudes about the death penalty, but added: “You don’t see the same kind of dramatic level of change in other places except where you have other people just sort of dominate the landscape.”
However Prater dismissed the study as “just a regurgitation of decades old information.”
“This is the same stuff that they’ve continued to say about Mr. Macy since he left office 15 years ago.”
Prater said he doesn’t believe it’s fair to view Macy’s record “through today’s lens.”
“If you look at the popularity of Macy during that period of time it sure seems to me that his decisions were reflecting community standards that our county was willing to pursue …. I think Mr. Macy was a product of the times.”
Prater said he favors the death penalty in “the worst of the worst cases.”
“We’ve had a couple years where if we filed any, we only filed one. In the last year I think we filed six or seven. … I believe that Oklahoma County citizens still are in favor of there being a death penalty for the worst of the worst cases.”
Even in those cases, Oklahoma County’s DA can’t always count on a jury to hand out a death sentence. In the recent “Cathouse” murder trial, jurors gave two men life in prison without parole rather the death penalty.
The defendants, Denny Phillips and Russell Hogshooter, were convicted on six counts of first-degree murder in the deaths of an Oklahoma City drug dealer and three women, two who were pregnant.
“The initial vote was 11-1 for death,” Prater said. “It only takes one person on a jury to say, ‘I’m not comfortable.’ “
Prater also took issue with the study’s definition of prosecutorial error and misconduct. The list includes cases in which a court found that Macy made improper statements in closing arguments.
While Macy may have violated edicts by appeals courts to avoid certain inflammatory statements, Prater said such statements often do not have a measurable impact on a death sentence anyway.
But Prater acknowledged that Macy made mistakes in other cases, most notably when he continued to rely on the work of a police chemist, Joyce Gilchrist, even after questions were raised about her competence and honesty. Gilchrist was fired in 2001 and an FBI investigation led to a state review of her cases.
The Innocence Project claims that Gilchrist’s testimony was a key factor in at least 10 cases involving people who were later exonerated.
As a young assistant DA, Prater was asked to review cases for any involvement by Gilchrist but Macy later recused the office. The review was completed by Attorney General Drew Edmondson’s office.
“What was concerning was that you had a lot of criticism of Joyce Gilchrist during that time and yet our office continued to use her,” Prater said.
Data supplied to The Frontier by the Fair Punishment Project shows that of the 54 death sentences handed out in cases Macy prosecuted, courts reversed nearly half of those cases at some point.
Macy’s son, Brett Macy, is a member of the state Pardon and Parole Board and a former Oklahoma City police lieutenant.
“I’ve seen these types of studies and these types of reports my dad’s entire career,” he told The Frontier. “I don’t give them a lot of credibility or credence.”
Macy said he is likely the most conservative member of the board, but added: “I don’t know if I’ve ever been as adamantly supportive of (the death penalty) as he was.”
“He dealt with the victims on a daily basis and I know that’s what drove him.”
Macy said he’s aware that the death penalty is declining in popularity, even in Oklahoma.
“The winds of change are blowing.”
‘Astounding’ level of chaos
Smith said the study highlights the fact that defendants face a far higher chance of receiving the death penalty in just a few jurisdictions. Justice Ruth Bader Ginsburg called this phenomenon “the luck of the draw.”
“I think geography tends to show that it’s very isolated,” Smith said. “Out of the absolute number they are really concentrated in just a few places.”
Oklahoma’s error-prone execution process just compounds the injustice of current trends, Smith said. In addition to the botched execution of Clayton Lockett in 2014, the state was forced to stay Glossip’s execution when officials discovered they had received a drug not listed on the state’s protocol.
A lengthy grand jury investigation found that the Department of Corrections had already used the wrong drug to execute Charles Warner in 2015 and that Gov. Mary Fallin’s attorney, Steve Mullins, wanted to use the same drug again in Glossip’s execution.
During the investigation, three key officials involved in those executions stepped down or retired early: Oklahoma State Penitentiary Warden Anita Trammell; DOC Director Robert Patton; and Mullins, Fallin’s general counsel.
“The state of Oklahoma can’t figure out to execute somebody with the right drug and avoid painfully botched executions. I think we’ve gotten to the point where there’s no real remedy other than the Supreme Court holding that the death penalty is unconstitutional,” Smith said.
“The level of chaos not just in Oklahoma but in places across the country is just so astounding.”
Executions in Oklahoma remain on hold while DOC makes changes to its execution protocol recommended by the grand jury report.
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