By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
For Dowdy, 31, life on the inside seems surreal. An environmental designer who once worked for the Dallas firm Scheirman & Associates, Dowdy now lives in a tiny cell with a woman convicted of murdering her spouse. Each day passes to the bark of an intercom calling "counts" and "movements" of prisoners at this maximum-security prison near Oklahoma City.
Her life can be divided into two segments: before and after The Accident. In between, there's a black hole in Dowdy's memory. In it, a young man died. Dowdy emerged alive but damaged, pulled from her flaming car and strapped onto a backboard, her neck broken.
In that black space, Dowdy was forever transformed from a hardworking college student into a convicted killer, depicted by Oklahoma County prosecutors as an unrepentant party girl who drank, drove and destroyed the life of Ryan Brewer. The 20-year-old son of a police captain, Brewer was caught in the path of Dowdy's car as she barreled the wrong way down an Oklahoma road one dark and drizzly morning in May 1999.
Dowdy, her lawyers and supporters believe that she killed Brewer after being slipped the date-rape drug gamma hydroxybutyrate (GHB) at an OKC dance club, and then fed more alcohol, assaulted and put into the front seat of her car. Dowdy has no memory of what happened for about four hours; amnesia is a side effect of the drug. Though no GHB was found in a blood test, that doesn't mean it wasn't there, since the drug disappears quickly from victims' bodies.
Six years and three trials later, the life Dowdy once dreamed of--career, marriage and children--is over. The jury in Dowdy's third trial in April 2004 convicted her of manslaughter and slammed her with a 40-year sentence, harsh punishment for someone who had never been charged with DWI or any other crime.
Brewer's death was a tragedy, but was justice really done? An investigation by the Dallas Observer reveals that Dowdy has been dragged through a judicial process rife with unethical behavior by members of Oklahoma County's law enforcement "brotherhood" determined to punish a drunken driver.
Prosecutorial misconduct ended Dowdy's first trial; the conviction and 25-year sentence in the second trial were overturned because the judge barred evidence of GHB intoxication. In her third trial, evidence shows the prosecutors manipulated witnesses and evidence, falsely portraying Dowdy as a remorseless party girl who didn't wear panties and continued to drink and drive after the accident. The judge's favoritism toward the district attorney's office was astounding.
"I've never witnessed such misconduct in a courtroom in my life," says Trinka Porrata, a former Los Angeles police officer. Perhaps the foremost authority on GHB addicts and victims in the country, Porrata teaches law enforcement officers about the drug's effects and how to investigate cases involving GHB. She's testified in numerous trials, most often for the prosecution.
"There were so many things that were inappropriate," Porrata says. "The sad thing about the whole case is that it's no longer about a cop's kid. It's now about the incestuous, petty, screwed-up, vindictive, bizarre attorney and judge community in that city."
Says Frosty Troy, editor of the Oklahoma Observer, "The girl you are talking about found herself in the middle of the rottenest criminal justice system in the United States."
The Oklahoma County District Attorney's Office has received scathing criticism in recent years from sources as disparate as former Los Angeles police Detective Mark Furhman and Amnesty International, which condemned its repeated misconduct in death row cases and draconian sentences in other crimes. Last December, a jury sentenced one man to 6,000 years in prison for armed robbery. Amnesty International singled out Dowdy's second trial and sentence of 25 years to illustrate how judges allow highly inflammatory statements from victims' families to influence juries.
Under the 21-year administration of famed District Attorney Bob Macy, the county racked up the highest rate of death penalty convictions in the country, sending 73 people to death row. In his 2003 book Death and Justice, Furhman says that Macy would show up at the scene of terrible crimes and handle opening and closing arguments in death cases; assistant district attorneys did the legwork and prepped him before trial.
Macy had a bag of tricks: misrepresenting facts, hiding exculpatory evidence, using "fire and brimstone" in closing arguments and breaking into tears at just the right moment for maximum jury impact. Macy and his assistants would invent scenarios to explain away evidence that didn't fit their theories. And they often relied on false or unscientific testimony from Macy's favorite forensic chemist, Joyce Gilchrist, of the Oklahoma City Police Department lab.
An African-American, Gilchrist was dubbed "Black Magic" by local lawyers. Police and prosecutors loved her. Defense attorneys feared her. In 2001, two years after Dowdy's accident, Gilchrist came under investigation for her testimony in more than 1,500 criminal cases. Her lab had no quality controls, and evidence handled by Gilchrist was often, in Furhman's words, "twisted, distorted, mishandled, mislabeled, lost and just plain perjured."
Gilchrist was fired, but it had taken years for the Oklahoma County legal community to do anything about her conduct.
In Oklahoma County's relatively small pond, anyone brave enough to stand up to Macy could pay a heavy price. Appellate judges repeatedly condemned Macy's tactics, but The Daily Oklahoman--owned by the ultra-conservative billionaire Ed Gaylord and family and in 1999 named the "worst newspaper in America" by the Columbia Journalism Review--applauded his tough-on-crime stance.
On April 30, 2001, Amnesty International released "Old Habits Die Hard," a searing report on death cases in Oklahoma. Not only were defendants denied fair trials, some were demonstrably innocent. Clifford Henry Bowen spent five years on death row for the 1980 murders of three people. A federal appeals court overturned his sentence, saying that Macy suppressed evidence showing a cop was the killer. Jeffrey Todd Pierce was sentenced to 65 years for a 1985 rape. After 15 years in prison, a DNA test proved his innocence. In May 2001, soon after he was notified of the DNA results in the Pierce case, Macy announced his early retirement.
But Macy left behind a well-oiled machine "whose ambition seems to have been racking up as many convictions as possible rather than seeing that justice is done," Furhman writes. "He trained a generation of prosecutors who continue this practice." Some Macy-trained prosecutors have become district court judges.
Dowdy wasn't facing execution, but she was prosecuted by Macy's machine. Prosecutors in all three trials dipped into their mentor's bag of tricks. Perhaps the most egregious came at the end of the third trial: manipulating a witness into testifying about seeing a post-accident newspaper photo of Dowdy and her boyfriend at a tailgating party holding beers. Jurors later cited the photo as the ultimate example of Dowdy's lack of remorse.
Prosecutors never produced the actual picture; it revealed the couple holding not beers, but hotdog buns.
Both judges who presided over her trials once served as assistant district attorneys under Macy. Judge Susan Caswell, who handled Dowdy's second and third trials, is married to a police officer. Her campaign literature showed Caswell with Macy and promised she would be an advocate for victims' rights. One Oklahoma appellate judge wrote that Caswell should recuse herself not only from Dowdy's retrial, but all criminal trials.
Caswell refused to step aside, and the transcript of Dowdy's third trial is replete with examples of Caswell's bias toward the prosecution. Dowdy's appellate attorney Mark Henricksen of El Reno, Oklahoma, has filed an appeal citing the hotdog bun picture and numerous examples of prosecutorial misconduct.
"I don't think I've ever seen anything like it in all my years of practice," Henricksen says. "In this case, I think law enforcement didn't do any self-regulation in order to make sure they got both a conviction and a long sentence."
Dowdy's prosecutors manipulated witnesses, misrepresented facts and twisted scientific testimony. Taped interviews with five jurors, obtained by the Observer, showed those tactics distorted their perceptions of the evidence and led to Dowdy's harsh sentence--as did Dowdy's demeanor in the courtroom.
Dowdy's frozen expression seemed unemotional and uncaring. The prosecution painted her as an ice queen who didn't care that she killed Brewer. Dowdy says she was in shock at being on trial for manslaughter. Though able to feel deep sadness for the life she took, Dowdy cannot mentally put herself in that car on that road.
There's substantial circumstantial evidence Dowdy was drugged. If Dowdy was the victim of GHB, not only has the life of a young man been lost, but a young woman will pay for something she is not responsible for.
"She was totally in the wrong, but she had no control over herself," says Dick Frye, who investigated the case for Dowdy's lawyer and first raised the issue of GHB. "She was a victim who was made into a perpetrator."
By the time the two women arrived at the Crosswinds Club a little after 11 p.m. on May 22, 1999, the tiny disco was packed. Tucked into an apartment complex, the Crosswinds was known for playing high-energy tunes, and Dowdy loved to dance.
Dowdy and co-worker Katie Hillin made their way to the crowded bar. Hillin wedged in first and asked Dowdy what she wanted.
"Cape Cod," Dowdy yelled over the noise. Hillin turned with two shot glasses and handed Dowdy one. "What's this?" Dowdy asked.
"Jägermeister," Hillin said and tossed back her shot.
Dowdy hadn't asked for the liqueur, but she gulped and grimaced at the pungent flavor. Hillin turned back to the bartender and got their cocktails. The women took their glasses to the dance floor and joined in.
Dowdy and Hillin weren't good friends. Both attended Oklahoma University in Norman and worked at the Marriott Postal Training Facility, staffing the front desk of the hotel where postal employees came to train. Hillin was new, but Dowdy had worked there 20 to 30 hours a week for almost two years.
Dowdy's parents, Nancy and Charles Jackson, own an insurance business in Hillsboro and raised their four kids in the country. Though the Jacksons made the $150 payment on their daughter's used car, Dowdy paid most of her own college expenses. She hadn't become a full-time college student until age 23 and was focused on getting a degree in architecture.
On the afternoon of May 22, 1999, Dowdy was making plans to move back to Texas, thrilled to get a job as director of a Presbyterian church camp. With her expenses paid, Dowdy could sock away her salary. She was looking forward to a perfect summer.
A group from work had made plans to go out that Saturday night, but by 8 p.m. everyone else had flaked out. Dowdy didn't want to cancel on the new girl. Around 10 p.m. Dowdy picked up Hillin, who answered the door with a gin-and-tonic in her hand, her second of the evening. Dowdy declined Hillin's offer of a drink.
On the Crosswinds dance floor, Dowdy noticed a guy homing in on her. Muscular and tanned, he traded a few words with her, though she couldn't hear much over the music. She wasn't particularly attracted to him, later recalling his "buggy" eyes.
Abruptly, Hillin gestured that she felt sick, and the girls made for the club's restroom. Dowdy helped Hillin cut in line to the toilet where she repeatedly vomited. Mortified, Hillin waved Dowdy out of the room while she cleaned up. When Dowdy checked on her a few minutes later, Hillin insisted she felt better. They returned to the bar, and Hillin tried to order another gin-and-tonic.
Alerted by a female bar-back who had seen Hillin in the bathroom, the bartender refused to serve her. Dowdy ordered another Cape Cod; she'd put down her drink when Hillin got sick and had lost track of it. (Dowdy later told investigator Frye she thought the muscular man brought her the drink, but this was never brought out in court.) A short time later, Hillin's nausea returned. They agreed to leave.
Hillin edged down the club's narrow staircase, followed by Dowdy, who noticed the man from the dance floor behind her. He trailed as they walked to Dowdy's car.
When Dowdy unlocked the passenger door, Hillin insisted she just needed fresh air and urged Dowdy to return to the club. Until that point Dowdy had felt OK--not even a buzz.
Closing the door was her last memory of the evening.
Hillin and Dowdy had left the club to go to the car between 11:30 p.m. and midnight. For the next few hours, Hillin was passed out, waking up a few times long enough to vomit. About 1:30 a.m. someone apparently called the police to say a woman was puking in the parking lot. Hillin was picked up by Officer Kevin Tucker and booked into detox at 2 a.m., leaving Dowdy's car in the lot.
Tucker later testified that security guards had looked for Dowdy in the club but that she wasn't there. Bartender Michael Szekely confirmed that he had served the two women and later watched to ensure Dowdy didn't give Hillin another drink. Szekely said he didn't see either girl return.
The next sighting of Dowdy was at 3:28 a.m., when a motorist called the highway patrol to report someone speeding westbound in the eastbound lane of Highway 240 near Interstate 35.
Another driver, 22-year-old mechanic Oscar Ramirez, was parked under a railroad trestle of Highway 240, checking his oil when Brewer's eastbound car passed. Moments later, Ramirez heard the explosion of metal slamming head-on into metal.
Seeing flames, Ramirez roused his buddy, passed out after too much to drink. Another car passed them and slammed into the two wrecked vehicles. That motorist pulled to the side of the road with only minor injuries.
The men ran to Dowdy's burning vehicle and pulled her out through the window. As they laid her unconscious on the pavement, Ramirez heard the flooosh of the car being engulfed in flames. "She was gasping for air like a fish on the bank," Ramirez says. "I thought she was going to die." Paramedics would later describe Dowdy as cursing and uncooperative, but Ramirez heard only tortured breathing.
The two buddies tried to help Brewer, but the accident had pinned him inside his car. Moments later, Oklahoma Highway Patrol Trooper David King arrived. He held Brewer's head and neck until paramedics arrived and pronounced the young man dead.
As emergency vehicles and patrol cars arrived, Ramirez noticed a shift in the attitudes of the law enforcement officers. For years he believed that the victim was the son of a highway patrol trooper because their anger was palpable. But the victim's drivers license revealed he was the son of an OKC police officer named David Brewer. One of their own had been killed by a drunk.
Dowdy's first lawyer, Beau Williams, hired private detective Dick Frye to investigate.
Frye believes the initial investigation of the crash was botched: Dowdy's car wasn't processed; her clothes were thrown away at the hospital; and no rape kit was done though a blood clot in her urethra indicated possible sexual assault.
Frye interviewed Dowdy and her neurosurgeon. He put together Hillin's symptoms, Dowdy's abrupt memory loss and the sequence of events. After local narcs told him a nearby health club had just been busted for drugs that included GHB, Frye concluded Dowdy and Hillin had been "poisoned" with the date-rape drug.
An intriguing theory, but Williams had no solid evidence to back up Frye's conclusion. A test of Dowdy's blood drawn at 5:30 a.m. tested negative for GHB.
That isn't surprising. Found in the body in minute amounts, gamma hydroxybutyrate can disappear from blood in as soon as two hours and from urine in six to 12. (No sample of Dowdy's urine had been saved.)
Developed as an anesthetic in France during the '60s, GHB was deemed too unpredictable for surgical use, its range of dose too narrow, its side effects too bizarre. A bottle cap of GHB can trigger euphoria, sexual stimulation, flailing movements of arms and legs, agitation and amnesia. (See "Knocked Out," December 19, 2002.)
Alcohol magnifies its effects.
Its rapid onset and amnesia make GHB a perfect tool for sexual predators: An odorless clear liquid, GHB has a salty taste that's easy to disguise in a cocktail or liqueur, and it's easy to dose a drink with a quick squeeze from a plastic bottle. Victims can appear to interact with their attackers, talk, even drive, but they have no awareness of what they are doing.
At the accident scene, Dowdy's behavior had included gasping for breath, slurred speech and unconsciousness alternating with agitation. Her neurosurgeon would testify that her symptoms were consistent with GHB.
Though GHB now is illegal, it is easy to make using recipes found on the Internet. By the time rape victims figure out what happened--if they do--it's too late to find evidence of the drug, though prosecutors in San Diego and Dallas have managed to convict GHB predators without positive toxicological results.
The drug emerged as a problem in Oklahoma as early as late 1995, when six people overdosed on GHB in the space of a few months. Keith Allen, owner of Brothers, a campus hangout near OU where Dowdy later worked, heard about GHB being used for sexual assaults in the late '90s.
"It was going on here at some bars [during that period]," Allen says. A few bartenders and doormen were using it on college girls in Norman. "I think it happens more than anyone realizes." One of his current waitresses told the Observer she was drugged at an OKC bar last summer. Her friends prevented three guys from hustling her out of the club.
Calls about GHB to Oklahoma County's poison control peaked at 27 in 1999, but virtually no investigators were trained to recognize its symptoms.
Highway patrol Trooper David King knew nothing about the drug when he arrived at the accident and tried to save Brewer's life. King saw a drunk girl and a dead boy and drew the logical conclusion.
King got to the ER at 7 a.m. Dowdy reeked of alcohol. He had already ordered a blood test. Without telling Dowdy she was under investigation for a fatality accident, King asked where she had been and how much she had had to drink. Dowdy answered in a murmur: She'd been with Katie Hillin. They went to the Crosswinds. She drank two Cape Cods. Hillin got sick. She didn't remember what happened after that.
He read Dowdy her rights and then repeated the questions. Dowdy waived her rights, King said, and gave the same answers. (The prosecutor would later make a big deal out of this severely injured, mentally incapacitated woman simply answering King's questions instead of volunteering information, insinuating that was a sign of guilt.)
King handed an arrest warrant to Dowdy's housemate Cari Harris. Notified by the hospital, Harris had called Dowdy's boss Dan Gallant; both had arrived before King, and neither believes she had the ability to understand what was going on.
Dowdy doesn't remember speaking to King, Harris or Gallant in the ER. Her first memory was waking up on her back with her head immobilized in a "halo" device and in excruciating pain. She had what's known as a "hangman's fracture" of the neck; her neurosurgeon wasn't sure Dowdy would survive the operation.
For days Dowdy didn't know that someone had been killed in the collision. On May 30, Dowdy's mother told her about Brewer's death. She had to call the nurse for medication to calm down her distraught daughter.
After rehabilitation, Dowdy returned that fall to OU and her job at the postal training center. She was determined to graduate, but her right arm was damaged, making drawing and lifting painful. At work, Gallant says, "she was not the same girl."
Prohibited from drinking or driving, Dowdy had to rely on friends to get to work. After a few months, she took the job at Brothers so she could walk to her classes and apartment; she didn't tell her boss about the case or her disability. Allen found out about it when King came into Brothers and saw her. Dowdy's work "deteriorated," Allen says, and she left to take another restaurant job.
In March 2000, Dowdy was working a second job in the school gym when she met Jon Mulac, a former OU football player pursuing a graduate degree. She told Mulac everything.
"Emily was beautiful, very intelligent, very quick-witted, very goal-oriented," Mulac says. They both graduated from OU in June 2000. "I thought she'd be worth sticking by her side. She was scared, but she was always confident that the facts would come out on this GHB thing and that the jury would see that."
District Judge Ray Elliott was furious. "You caused this," he said, pointing to prosecutor Steve Deutch.
Dowdy's first trial for manslaughter began August 28, 2000, and ended two days later. After learning a police officer had talked to the judge about the case outside the courtroom, Dowdy's attorney Beau Williams moved for a mistrial. Elliott accused Deutch of sending the man to talk to him, but he had no choice but to grant Williams' request.
Williams may have felt relief. Elliott had told her that "if you had an expert that said this crash was caused due to a flash of light from a UFO, that would be more admissible" than her proposed defense: involuntary intoxication as the result of GHB.
A year later, when Dowdy's second trial began, Deutch was gone, and two women had taken over: Christy Miller and Connie Smotherman. And on the bench: Susan Caswell, arguably the worst judge in the Oklahoma County district courthouse.
In a building where judges are known for high-handed, arrogant and unethical behavior--based on opinions issued by judges on the Oklahoma Court of Criminal Appeals--that's saying something.
In 2002, Judge Elliott referred a racketeering case to a higher court, saying that if the allegations against Susan Caswell and another judge were true, "it would position a very dark cloud over this courthouse...These allegations attack the very foundation which supports this profession."
They were true. The dark cloud was Judge Caswell, and the details reveal the cozy relationship between the district attorney's office, Caswell and a few of her cronies on the bench.
It began as a 26-count indictment with nine defendants. As the trial was about to begin, the district attorney's office asked Special Judge Charles Hill for a continuance. All of the defense attorneys opposed the motion. Hill denied the state's request.
Prosecutors did an end run to Caswell and another judge who--without jurisdiction or notice to defense attorneys--yanked the case from Hill's court. They assigned it to another judge, who promptly declared a 152-day continuance.
Caswell had no authority over the case. The defense filed a motion alleging the judges' actions presented "a systemic and systematic, fundamental and apparently continuing pattern of rule-breaking, judge shopping and general prosecutorial and judicial misconduct so pervasive as to taint the Oklahoma County judicial system."
Appellate judges ruled in favor of the defense; the racketeering case was ultimately dismissed as a result.
Even before Caswell took the bench in January 1999, her ability to be a neutral, unbiased judge was in doubt. The wife of an Oklahoma City police officer and a prosecutor under Macy for 13 years, Caswell ran for election with a promise that she would "continue to 'fight' for victims' rights." That troubled criminal defense attorneys whose clients are innocent until proven guilty.
In the intervening years, she has acquired a reputation as a "prosecutor in a black robe." Notorious for rolling her eyes and grimacing as defense attorneys speak, Caswell makes her feelings plain.
In July 2000, the Oklahoma Court of Criminal Appeals ruled 4-0 that Caswell should recuse herself from a child abuse trial because her campaign literature made her appear biased. Judge Charles S. Chapel went further, saying she should remove herself from all criminal trials.
A few months later, Caswell was disqualified from a high-profile murder case. At the request of the district attorney's office, she had ordered the draining of a lake to find a murder weapon and gave repeated orders with no notice to the defense, delaying the trial for months.
Mickey Homsey, the defense lawyer in that case, said in his motion to remove the judge that walking into Caswell's courtroom was like entering the "district attorney's annex."
"I agree," concurred Judge Chapel. "In these proceedings, Judge Caswell turned her office into an investigative arm for the district attorney...Indeed, there are many serious and scary problems in this record, but the most serious difficulty is that in her zeal to assist the prosecution, this judge unilaterally and illegally denied the defendant in this case the benefits of our adversarial system."
This appellate bitch slap didn't faze Caswell. She learned how trial judges behave under Macy.
In October 2000, Dowdy petitioned the court for permission to move to Kansas City. She wanted to get a job and live with Mulac until the trial. The court agreed as long as Dowdy didn't drive and was on a device called a Sobrietor. When it blared three times a day--at 7 a.m., 9 p.m. and 11 p.m. --Dowdy had to speak and blow into it. If the device detected alcohol, it notified officials through a phone line. Dowdy never failed a test.
But that's not how it would appear to the jury in Dowdy's second trial, which began January 8, 2001.
The transcript reveals that Caswell at every turn favored the prosecution. At times, the assistant district attorneys didn't even have to object. The judge did it for them, once going on for 10 pages presenting the state's arguments on the admissibility of evidence without prosecutors ever saying a word. At times, Caswell's rulings were contradictory, always to the benefit of prosecutors.
Dallas-area toxicologist Gary Wimbish testified outside the presence of the jury that Dowdy's blood alcohol wasn't high enough to account for someone driving the wrong way on the interstate for two miles.
Wimbish believed Dowdy had been slipped GHB sometime before midnight, "had lost her will" and was given more to drink. At the time of the accident, Dowdy was functioning "robotically" because of the double whammy of alcohol and GHB. As for evidence of the GHB, Wimbish pointed to:
··· Dowdy's "pristine" memory loss, inconsistent with alcohol blackout or head trauma--Dowdy described it like the loss of memory she'd had when previously given surgical anesthetic
··· Dowdy's disappearance from the bar between midnight and the accident
··· Hillin's dramatic symptoms, which were consistent with GHB, not the quantity of alcohol she had consumed
The prosecutors countered with the fact that Hillin got violently sick well before Dowdy's memory loss, but GHB is notorious for affecting people in different ways. Alcohol exacerbates symptoms, and Hillin had consumed two gin-and-tonics by the time they reached the club. Dowdy had no alcohol in her system.
And it was impossible to say which drinks were dosed, the cocktails or the shots. (Jägermeister and Goldschlager are notorious for being used by GHB rapists because the strong taste disguises the drug.) Did each woman drink the same amount of their cocktails? Did each drink get the same dose? Caswell would allow none of it, repeatedly admonishing defense attorney Williams to present only facts that could be proven, not "speculation" of how GHB might have affected Dowdy.
But when it came to the prosecution, Caswell allowed Miller and Smotherman to elicit testimony from witnesses that it is "common" for drunken drivers to say they had only two drinks, that criminal defendants lie and that Dowdy's memory loss could have been caused by anything from alcoholic blackout to head trauma. All rank speculation.
Caswell barred any testimony about involuntary intoxication because "there has been no evidence presented by this defendant that proves beyond a reasonable doubt that this defendant had GHB in her system."
Caswell's conduct at times was surreal. At one point, the judge refused to let Williams recall a witness "just because you forgot to ask them a question." Williams hadn't forgotten; the judge had barred her from doing so. Williams flailed about, stymied by the judge, prosecutors and her inexperience in criminal trials. Damaging evidence was admitted; mitigating evidence was excluded.
Inexplicably, Williams had called off investigator Frye. (Williams couldn't be reached for comment.) No one interviewed the Crosswinds' doorman, the bar's security guards, the other bartender or the female bar-back. And Williams had interviewed few of the witnesses. But Miller and Smotherman had contacted key people and prepped them for the witness stand.
Dan Gallant, Dowdy's former supervisor, thought he was going to be subpoenaed by the defense. "I thought Emily was a great girl," Gallant says. "She had a great personality, was friendly, very upbeat. She was going to college and did the normal college things."
But he was contacted by Miller, who told him Dowdy was claiming she was a teetotaler. Gallant knew that wasn't true, so he agreed to testify. (Miller was on vacation and couldn't be reached for comment.)
Miller also contacted Scott Perry, a self-described "fair-weather friend" who had gone on a ski trip with Dowdy and seven others, to ask about Dowdy's finances. "They [the prosecutors] were really trying to imply that she was easy," Perry later told Frye, "that she'd gotten her money in unscrupulous ways and...they were really trying to tear her down."
Perry had his own opinions about Dowdy. Though he hadn't seen her in a year, in his opinion, Dowdy didn't seem contrite. And she'd invited Perry to meet her socially at Brothers. He thought Dowdy's working there was "inappropriate" because it served alcohol.
Both Gallant and Perry would give damaging testimony, but the most important witness was Hillin.
Down for the Count
Katie Hillin, 28, now works for an event planner. But in 1999, she worked at the postal training center. Hillin didn't care for most of her co-workers, but she liked Dowdy. Everybody liked Dowdy, who was upbeat, outgoing, friendly and nonjudgmental.
Hillin's memory of the evening tracks closely with Dowdy's until she got sick. Neither woman has a good sense of timing for events that night. After they went to the dance floor with their cocktails--"it could have been an hour; it could have been 15 minutes"--Hillin felt suddenly hot, then very nauseated.
"I felt really, really drunk," Hillin says. "I've been intoxicated, but not like that. I couldn't even stand up. Emily came into the bathroom with me, and I couldn't get off the floor. I was throwing up. I thought, 'I can't believe I'm this drunk and I've only had three drinks and a shot.'"
The prosecution portrayed this sudden onset as the result of too much booze and too little food, but Hillin says it was something she'd never felt before or since. She now believes she was drugged.
After getting to the car, Hillin urged Dowdy to go back to the club, saying she just needed some air. Then Hillin passed out.
At about 1:30 a.m., someone supposedly called the police. A cop arrived and saw Hillin vomiting. After the officer took her to detox, the feelings abruptly vanished, another hallmark of GHB. Snapping her fingers, Hillin says, "Everything cleared up just like that."
Hillin left detox the following afternoon and called the office trying to find Dowdy. "We had agreed that we wouldn't stay out late because she had to work in the morning," Hillin says. She learned then about the wreck. That night, Hillin got a visit from Trooper King and related what she could remember of the evening.
Days later, Hillin visited the hospital to see Dowdy, who still hadn't been told about Brewer's death.
"She was kinda in and out of it," Hillin says. "I got really upset and started crying. She took my hand and told me it was OK. She was really strong." Hillin asked what had happened. "I don't remember," Dowdy said.
From the moment she first spoke to King, Harris, Gallant, Hillin and others in the hospital, Dowdy has maintained she remembers nothing after putting Hillin in the car. King testified that he didn't think Dowdy was "hedging," but Smotherman repeatedly portrayed Dowdy's memory loss as a lie to get out of paying for her crime.
When Dowdy returned to work in September 2000, they never talked about that night. "She was strange; I was strange; my co-workers were strange," Hillin says. She left that job a month later.
Hillin got a visit from prosecutor Miller. Polished and gung-ho, Miller was to the point. "You could tell she's trying to make a name for herself," Hillin says. "She just thought Emily was a drunk driver and someone has to pay. GHB was not a factor for her."
Beau Williams antagonized Hillin on the stand by suggesting that in the dark, crowded Crosswinds, anyone--the bartender, a stranger, even Hillin--could have put GHB in Dowdy's drink. Williams was grasping at straws, but the suggestion infuriated an important witness.
Events before the accident were used to portray Dowdy as a heavy drinker. Perry testified that Dowdy drank on the ski trip. That Dowdy had a keg party. Friends said they'd seen her drink more than two or three drinks in the past. (No one said when, where or over what period of time.)
Hillin's testimony that Dowdy came to work after the accident smelling of alcohol was refuted by their supervisor, but the impression built.
In her closing argument, Smotherman described Brewer's terrible last moments and--like her mentor Macy--shed a few tears.
Painted as a lying rich bitch party girl with no remorse, needing to be "locked up for the protection of society," Dowdy was convicted, given 25 years in prison and hauled off in handcuffs.
After lunch on May 31, 2002, an inmate found Dowdy and told her to report immediately to her case manager on the honor dorm. Stone-faced, the manager handed her the phone and said, "You need to call your lawyer."
After her second trial, Dowdy had been in prison 16 months. Caswell had denied her request for a sentence reduction. Nothing Dowdy had done--"speak-outs" for high school students, becoming a peer educator on women's health, attending a faith-based course called "Alcohol Narcotics Victorious"--was viewed in her favor. In fact, prosecutors used it against her.
Dowdy wasn't comfortable with the speak-outs, in which inmates told their stories. "The whole point is to keep kids from coming to prison," Dowdy says. "I can't go tell them about the date-rape drug and what I think really happened to me." She kept her talks general.
The prosecutors interviewed one of Brewer's relatives who had heard Dowdy at a speak-out. "Basically, they said that I didn't act like I cared, that I got up and left early," Dowdy says. "There were a couple of times I had to leave after I gave my talk, because I had a job and my boss wasn't crazy about me doing it. They take something positive you do and hit you over the head with it." The prosecutors suggested the "ANV" course was Dowdy's admission that she was an alcoholic.
For her appeal after the second trial, Dowdy's parents hired defense attorney John W. Coyle III, a flamboyant, often-married lawyer whose ego and booming voice match the size of his portrait in his waiting room. With a transcript littered with judicial and prosecutorial misconduct, Coyle assured them Dowdy would get a new trial.
In her case manager's office, Dowdy picked up the phone. "We won!" Coyle said. The Oklahoma Court of Criminal Appeals had overturned her conviction because Caswell had improperly barred the involuntary intoxication defense. Dowdy burst into tears. She had a third shot at freedom.
When Trinka Porrata and Dr. Deborah Zvocek arrived in Oklahoma City in March 2004 to testify for Dowdy as expert witnesses on GHB, they were alarmed. Two of the most prominent experts on GHB in the country, Porrata and Zvocek believe Dowdy and Hillin were drugged. "It's frightening," Porrata says, "because it can happen to anybody."
But the trial was a week away and Coyle didn't understand the science of GHB, nor had he interviewed and prepared important witnesses.
The experts had been impressed with Coyle's appellate brief. But in person, Porrata says, Coyle seemed like a "burned-out old fart." They found out a female associate had written the appeal but was no longer on the case.
A former Los Angeles narcotics officer, Porrata gained her expertise from 10 years of interviewing GHB addicts and rape victims. She has trained hundreds of law enforcement officers on recognizing and investigating GHB cases. Retired, she now is on the board and president of Project GHB, an effort to educate users and law enforcement about the symptoms and dangers of the drug.
From Minneapolis, Zvocek and her husband, Dr. Steven Smith, have published and testified extensively about GHB; their papers have appeared in prestigious publications such as The New England Journal of Medicine. A medical anthropologist, Zvocek focuses on research; Smith, an emergency room physician, comes at it from a clinical point of view.
Dowdy struck Zvocek as direct and straightforward. "She said what she remembered, what she knew," Zvocek says. "It seemed very clear and honest. It would be easy for people in that situation to learn about it and try to come up with symptoms."
But Zvocek was shocked when she asked Coyle what witnesses were going to say and he suggested she find and interview them.
Worried that an innocent person was being railroaded, Porrata and Zvocek began talking to witnesses, crafting questions for Coyle to ask, identifying weak areas in the prosecution's case. Coyle seemed "indifferent," Zvocek says.
Zvocek encouraged Coyle to hire the toxicologist who had tested Dowdy's blood to testify about his research, which included a test showing that in 75 percent of samples, GHB was gone within three to four hours. Coyle said he cost too much, so he wanted Zvocek to testify about that, though it wasn't her area of expertise. The prosecution hired him, Zvocek says, and distorted his research results.
Then a bombshell dropped. A few days before Dowdy's third trial began on March 29, 2004, an Oklahoma City defense attorney contacted Coyle to tell him about two female lawyers who claimed they had been drugged and sexually assaulted at the Crosswinds in late 1999.
This was explosive information. Prosecutors and the bartender had maintained that the club had no problems with GHB.
Porrata called one of the women and found her story believable. The woman claimed that both had been drugged at the Crosswinds on December 31, 1998, five months before Dowdy's accident. They'd awoken in separate rooms in a stranger's house. Both had been raped but never reported the attacks to police. One woman obtained a picture of her assailant, who bore a resemblance to a sketch of the man Dowdy remembered, drawn by a police artist several years earlier.
Coyle spoke to one woman for only four minutes and brushed her off as "flaky." Porrata was furious. (Dowdy didn't find this out until a year later. Coyle did not return repeated phone calls.)
If Coyle was casual and unprepared, prosecutors Smotherman and Miller were focused and aggressive, prepping their witnesses to testify.
The Third Trial
Porrata remembers the collective gasp in the courtroom as former police officer Kevin Tucker, who had taken Hillin to detox, testified.
Coyle asked Tucker what Hillin had told him about Dowdy that night.
"She said she left with a man," Tucker said.
For the first time, a witness had corroborated what Dowdy had contended all along. But Smotherman leaped up and shrieked, "Objection!" When Coyle tried to pursue it, Caswell cut him off and forced him to move on.
For the first time, Oscar Ramirez appeared in court. He had talked to the prosecutors earlier but was disturbed by their attitude. "To me, they were like, 'This is an officer's son; we're going to prosecute her regardless,'" Ramirez says. "They said they didn't believe her story about being drugged."
Ramirez testified that Dowdy was wearing no panties when he pulled her from the wreck. Coyle tried to use the absence of Dowdy's underwear plus details pulled from Dowdy's medical records to show she was sexually assaulted.
The prosecution countered with a nurse who said she'd looked at Dowdy's private parts while Dowdy was strapped on a backboard and saw no evidence of rape, a talent that would surprise experienced sexual-assault nurses.
Then began the panty war: Two prosecution witnesses, a paramedic and Barry Ragsdale, an undercover narcotics officer with the Dallas Police Department, testified that these "party girls" often go out without panties.
Absurd and rank speculation, but Caswell allowed it. Though Dowdy later testified she was wearing panties that night and usually did so, by then the prosecutor had repeatedly "predicted" she would say so--implying Dowdy was covering up her panty-wearing habits.
It was a massacre. The defense put on Porrata and Zvocek, head and shoulders above the prosecution's witnesses in terms of expertise on GHB. But testifying in a criminal trial requires focus and firmness. Coyle hadn't prepped them, and they came off poorly to the jury.
Ragsdale's main qualification as a GHB expert was busting dealers and using the drug when it was legal. "His expertise compared to mine is minute," Porrata says. "He has no credibility of any kind." But Ragsdale's testimony was interpreted by jurors as authoritative. Guided by the prosecution, Ragsdale opined that the GHB claim seemed like an "after the fact defense."
Ragsdale says he was surprised Coyle didn't try to go after him on the stand and admits that he had seen little of the evidence.
Crosswinds bartender Michael Szekely remembered serving Hillin and Dowdy cocktails, but not the Jägermeister. Coyle countered his testimony with lawyer Marco Palumbo. Szekely had confided in him that Crosswinds had a problem with GHB in 1999. He had come forward after learning Szekely testified under oath that it didn't.
Smotherman lit into Palumbo, shrieking, "You don't like me, do you?" Since Palumbo had nothing to gain by testifying, this was silly, but Smotherman succeeded in shifting attention from his testimony to his motives.
A GHB-rape victim from Tulsa testified, but her anguish had the effect of highlighting Dowdy's ice queen demeanor. The prosecution piled on the witnesses, saving Dowdy's friends to pound the final nails into her coffin.
Her former supervisor Gallant didn't want to testify again. Things he'd heard about the case bothered him. "Emily's not the kind of person to leave Katie in the parking lot," Gallant says. "It doesn't make sense to me."
But he again testified about Dowdy drinking on the ski trip, at a keg party and crashing on his couch after going out with Gallant and another friend. (Jurors interviewed later believed, because of deft questioning from the prosecution and a meltdown by the defense, that he was testifying about things that happened after the accident.)
Nobody asked Gallant what he believed were important questions.
"Nobody ever asked me if I saw her drinking and driving," Gallant says. "I never did. Was she drinking and driving on the ski trip? No. Was she drinking and driving at the house party? No. I thought they would want to know that she always drank responsibly."
The most damaging witness was Dowdy's former friend Scott Perry. He testified about being with Dowdy when she did a U-turn over the median after missing an exit on an expressway and that he saw a picture taken after the accident showing Dowdy and her boyfriend Mulac at a tailgate party holding beers.
The driving incident happened before the accident and didn't involve alcohol, just a missed exit. And the picture?
It was taken on December 2, 2000. Dowdy had petitioned the board that monitored her Sobrietor for permission to go with Mulac to the Big 12 football championship game in Norman. They agreed, adjusting Dowdy's schedule for her Sobrietor tests, which she passed later that day.
The picture ran in the Oklahoman. Prosecutors called the monitor to complain that Dowdy was at the game, so they saw it. Judge Caswell saw it. Coyle had seen it. But he didn't demand that the prosecution produce the picture, nor did he put Dowdy or Mulac on the witness stand to refute Perry's testimony. If he had, the jury would have seen they were holding hotdog buns, not beers.
After an incendiary closing argument--and more tears--by Smotherman, the jury took almost no time to convict Dowdy. Because of "evidence" that Dowdy had continued to drink and drive and, as one juror later put it, her "total lack of humanity," they slammed her.
When the judge read the sentence of 40 years, Mulac stood up in the courtroom and wailed, "Noooo!"
Smotherman repeatedly portrayed Dowdy as displaying "absolutely no remorse," one of Macy's favorite lines. After her first conviction, the Brewers complained Dowdy never told them she was sorry. Dowdy's demeanor in court even bothered Robin Turner, her former supervisor.
But Dowdy's stern façade hid a frightened woman barely holding it together. As for remorse, there was plenty. Just not the kind the prosecution wanted.
The Daily Oklahoman wrote that after her first conviction, Dowdy burst into sobs and addressed the Brewers, who had given lengthy and emotional victim impact statements. "I'm so sorry," she said. "I can't even put into words the shock I've been in." The paper contended she hadn't spoken loudly enough for the family to hear. Maybe so, but others in the courtroom heard her.
A few months later, Dowdy wrote the Brewers from prison: "Your tragic loss weighs heavy on my heart and mind each and every day. I was so frightened and scared during the trial that I appeared uncaring...I cannot even begin to imagine the grief you have experienced and the pain that you must endure on a daily basis. I am so very sorry..."
On February 3, 2002, Dowdy wrote another letter to the Brewers. "On May 22, 1999, I made choices. Poor choices which led to tragedy--leaving many different lives in ruin and despair, but namely, an innocent life lost--the precious life of Ryan."
It's a powerful letter, but Dowdy doesn't admit guilt or change her story. Only one line was ever admitted into the record: her admission that on a few occasions before her first trial she had consumed alcohol in violation of her bond.
Though Dowdy asked to meet with the Brewers while waiting on the jury in the third trial, she was barred by Smotherman. She wrote them again on April 13, 2004; Dowdy has had no reply.
Broke, the Jacksons have created an Emily Dowdy Legal Justice Fund (P.O. Box 432, Hillsboro, TX 76645). One of the women who came forward about being drugged at the Crosswinds has filed an affidavit on Dowdy's behalf. Coyle filed an affidavit saying that "the atmosphere of intimidation and hatred that Judge Caswell created and showed toward Emily Dowdy" caused him not to put Dowdy on the stand to testify about the hotdog bun picture.
Perry submitted an affidavit regarding his testimony on the photo, saying that prosecutor Miller had told him the picture wasn't available for him to see, but "the photo was a key point and that she wanted him to emphasize the photo to the jury." After the furious Nancy Jackson sent him the picture, Perry called the district attorney's office and told them he had been wrong.
Smotherman doesn't remember the picture as "a big deal," but she and Miller used Perry's "memory" of the photo and their own repeated references to Dowdy's other "criminal" acts to prove she was a continuing danger to society who deserved a long sentence.
But Smotherman admitted to the Dallas Observer that she could think of no evidence "at this time" that Dowdy ever drank and drove after the accident.
As for Dowdy's other "criminal" acts? Smotherman acknowledged that Dowdy drinking alcohol in violation of her bond wasn't "necessarily" a crime, but she couldn't come up with any others. Pressed, Smotherman went into a tirade that "24 jurors" in two trials found Dowdy guilty.
But 24 Oklahoma County jurors also convicted Jeffrey Todd Pierce (65 years) and Clifford Henry Bowen (death) for crimes they didn't commit.
Smotherman has left the district attorney's office. She now works at OU's law school as "director of competitions," teaching trial technique. The Oklahoma Attorney General's Office filed a brief with the Oklahoma Court of Criminal Appeals calling the photo testimony a mistake but "harmless error." Even if other allegations about prosecutorial misconduct were true, the attorney general contends, they were all "harmless error," and thus not grounds for a new trial. A ruling is expected later this year.
Taped interviews by Frye of five jurors make it clear myriad "harmless errors" led directly to Dowdy's conviction and harsh sentence.
One juror said Caswell told her after sentencing that Dowdy probably would serve only four years, another lie unless the judge expects the appellate court to reverse her again. If it does, will Judge Caswell recuse herself? Anything can happen in Oklahoma County.
What happened to Ryan Brewer and his family was a tragedy. But what happened to Dowdy--the night of the accident and in the court system--is also tragic. And Oklahoma justice continues to pile on.