By Nick Braune
Mid-Valley Town Crier
by permission
Released on May 31st, Curtis McCarthy was driven in an Oklahoma County van to meet his family and friends. But at 44, he does not know many people outside of prison, having been incarcerated, mainly on death row, since he was 22. He even has an eight-year-old granddaughter he has never hugged.
He is the third person released from custody in Oklahoma after the revelations about an overzealous (corrupt) civilian employee in the police forensics lab there in the 1980s and ‘90s. Joyce Gilchrist, a forensics expert worked with the police for 20 years and was apparently an extremely convincing and engaging prosecution witness.
The attractive, articulate woman was teasingly referred to in the prosecutor’s office as “Magic” for helping them win convictions. (There was a CBS, “60 Minutes II,” story on her in 2001, and CBS News did some follow-ups on it.) She could, for instance, be a bit over-dramatic in her testimony, implying a greater certainty about hair samples matching each other than there really was, or perhaps she could just lie outright, as she apparently did in McCarthy’s case.
A district judge released McCarthy after deciding that Gilchrist had destroyed evidence. McCarthy’s lawyers claim that she had even switched samples to get a match, and the national Innocence Project took up McCarthy’s case(New York Times, May, 27, 2007).
The Times quoted the district judge: “Frankly all of the evidence that Joyce Gilchrist collected, if she inventoried it, if she stored it, if she analyzed it, I believe is so questionable that it is difficult to determine if it has any evidentiary value.”
I teach ethics and enjoy analyzing these sorts of cases with my students. One response I initially get is the “bad apple” response: There are some bad people in every profession. But I tell the students that it is not adequate ethical thinking to simply point out the bad apples and say everything will be better after we get the bad ones out of the barrel. Look, rather, at the whole criminal justice culture. If we can change the culture, we will get rid of most of the bad apples — not the other way around.
Jocye Gilchrist was a problem — surely. But how does someone like her function smoothly (receiving commendations) for twenty years? Doesn’t that imply a wider problem than just one bad apple in the police crime lab? Was not something wrong with the prosecutors who were so anxious to get their “magic” Gilchrist on the stand to testify, case after case, year after year? (There were plenty of signs her work was too good to be true.) And here is another clue that there is a wider culture problem: True, she was fired, but she was never prosecuted for a crime. Perhaps “overzealousness” like hers was institutionally tolerated, even though it meant someone like McCarthy would spend years on death row.
A book I am re-reading, Police Ethics: The Corruption of Noble Cause, tries to look at the barrel and not each apple separately. The author thinks most police and criminal justice misconduct is not rooted in money scams, but in a strange cultural problem: a strong certitude that police work is a “noble cause.” It is such a noble cause that one can bend the rules, lie, use any means, to serve it. Look at Joyce Gilchrist in the police lab. No one bribed her to fudge evidence. She would never take a bribe from a criminal. But she apparently could lie to put “bad guys” in jail and help the “good guys.” Our side is noble; why fuss about tactics?
This noble cause tradition is handed down to new recruits from older officers and other leaders in the criminal justice world decade after decade, building a sort of culture that second-guesses ethics in order to achieve grand purposes. The values of the whole system start changing, even if the written rules do not.
The book I’m reading makes an excellent point on institutional acceptance of misconduct. It references a study by the Chicago Tribune, “Break rules, be promoted.” (The title reflects the Joyce Gilchrist story well: she was promoted to be head of the lab.) The Tribune examined 381 cases of prosecutor misconduct in homicide cases since 1964.
These were serious cases of misconduct that ended with convictions being overturned. For instance, one prosecutor won convictions against two Afro-Americans and did not tell the defense about one witness who said the perpetrators were white. Another prosecutor knew evidence was planted. But in these 381 cases, not one of the prosecutors was convicted of a crime. And many went on to be district attorneys or judges.
For 22 years Curtis McCarthy was a victim of a culture condoning some misconduct, because it serves the “noble cause.”
Texas Civil Rights Review 