Train Kept on Rollin'
The attorney for Emily Dowdy, a former Oklahoma University student now serving 40 years in an Oklahoma prison, testified in court last month that he had failed to present an adequate defense because he had been "intimidated" by the hostile environment created by Oklahoma City prosecutors and District Judge Susan Caswell during trial.
Accused of killing a police officer's son in a 1999 car accident while under the influence of alcohol, Dowdy was convicted in 2004 of vehicular manslaughter after her third trial. Dowdy maintains that she was slipped the drug GHB at an OKC nightclub and the effects of that drugging, not alcohol, caused the crash. Two of the most prominent GHB experts in the country have testified on her behalf.
J. W. Coyle, her OKC defense attorney, was on the stand four hours in an evidentiary hearing ordered by the state Court of Criminal Appeals in Dowdy's effort to get yet another trial. All the testimony fell under the broad category of ineffective counsel. In other words, Coyle screwed up, and Dowdy got screwed.
Coyle testified that he was so convinced the judge was hostile to him that he didn't call as a witness OKC attorney Holly Barrett Autry, who had contacted his office to say that she and a friend had been drugged and sexually assaulted at the same club. Autry testified that Coyle had spoken to her only a few minutes instead of interviewing her at length to determine if her account would have helped Dowdy's case.
"Coyle admitted he should have had a personal meeting and established a level of trust to determine if she was a reliable witness," says Mark Henricksen, Dowdy's appellate attorney.
But Dowdy's appeal may be an uphill battle. The judge in charge of the evidentiary hearing was the same judge who so "intimidated" Coyle: Susan Caswell, who refused to remove herself from the case despite Henricksen's motion arguing that it was inappropriate for her to preside over a hearing in which her own conduct was at issue.
So it seems Dowdy will get more Oklahoma justice from a judge who local defense attorneys have called "a prosecutor in a black robe." (See "Oklahoma Railroad," by Glenna Whitley, July 21.)
A former assistant district attorney who is married to a police officer, Caswell has a long history of improper courtroom behavior, including rolling her eyes, shaking her head and emitting heavy sighs during presentations by defense attorneys. In one case, an appellate judge said that Caswell had turned her office into "an investigative arm for the district attorney in...her zeal to assist the prosecution." In 2000, the Oklahoma Court of Criminal Appeals ruled 4-0 that Judge Caswell should remove herself from a child abuse trial, saying that her campaign literature, which showed Caswell posing with the district attorney and pledging "to protect victims' rights," made her appear biased. One judge went further, saying Caswell should remove herself from all criminal trials.
"Obviously, I thought the hearing shouldn't have been [in front of Caswell]," says Henricksen. "But I was overruled. I filed a lengthy pleading regarding that issue, and I attached, among other things, your article."
The Observer's cover story on Dowdy gave numerous examples of how Caswell had favored the prosecution in Dowdy's third trial. The two assistant district attorneys, Connie Smotherman and Christy Reid-Miller, have left the district attorney's office but were appointed special prosecutors for the evidentiary hearing and were back to defend themselves against accusations of manipulating witness testimony.
One of their prime witnesses had been David Scott Perry, who had dealt a devastating blow to Dowdy's defense when he testified that he had seen a newspaper photo of his former friend at an OU tailgate party holding a beer. Prosecutors portrayed that photograph--taken while she was awaiting trial--as a prime example of Dowdy's utter lack of remorse, a factor that jurors later said played a huge role in their assessment of a heavy sentence.
The photo actually shows Dowdy holding a hot dog bun. Prosecutors had seen the picture but didn't produce it. Coyle did nothing to rebut Perry's testimony, such as demand the prosecution show the actual photo to the jury, because he thought the judge was "hostile" to him and wouldn't let it in anyway.
"I put on Scott Perry, who substantially repudiated his testimony at trial," says Henricksen. "He said the photo of Emily eating a hot dog was the only tailgating party he'd seen a photo of, and he was in error."
The prosecutors never presented the photograph at trial, which Perry said he'd seen in the Tulsa World. Their response to Perry's recantation in the evidentiary hearing was to contend that, oh, well, the picture must have appeared in The Daily Oklahoman.
"I thought that was outrageous," says Henricksen. "You can do a computer search and there is no such photo. I argued that, in the two years this has been an issue, they would have produced it if they could have."
Prosecutors used other misleading testimony by Perry to portray Dowdy as continuing to drink and drive after the wreck, but Smotherman later admitted to the Observer that she had no evidence of that.
Instead of attacking the prosecutors' lack of evidence, Coyle did nothing. He collapsed under Caswell's "hostile" gaze and let the prosecutors walk their high heels all over him. Coyle's performance in the Dowdy trial was a bizarre fall from grace for a defense attorney once regarded as one of the best in OKC.
Each side will now use transcripts from the hearing to file briefs with Caswell, who will write her own opinion and forward it to the appeals court. The defense and prosecution will write briefs in response to her ruling. The appeals court could then rule or order oral arguments.
But those same appellate judges still have not ruled on Henricksen's motion for Caswell to remove herself. Dowdy is in the awkward position of asking Caswell to be impartial about her own courtroom conduct while simultaneously trying to get her removed from the case.