If witness was wrong about killer, could she be wrong in other cases?

Family devastated by expert

Posted: Monday, July 23, 2001

OKLAHOMA CITY -- The sins of Jim Fowler's youngest son were not exceptionally wicked. Joyriding in a stolen Mercedes. Ditching school. Running away. Things certain kids do in sleepy towns waiting for their lives to begin, for something, anything, to happen.

''He was a good kid,'' says his haunted father. ''God dang, he was a lot of fun.''

He was also in a lot of scrapes with juvenile authorities. All of them ''dumb,'' his dad said, like stealing a car. But when he surveys the past looking for signposts to his son's death sentence, he always comes back to this: Mark was never violent.

The miseries of Jim Fowler stretch 16 years. Two sons dead, one by execution. His elderly mother raped and murdered. And his family devastated not once, but twice by the testimony of Joyce Gilchrist, an expert witness for the prosecution.

The tribulations of the Fowlers began with the baby of the family. At age 19, Mark blundered over the line separating crimes that get you jail time and crimes that get you executed. Even now, no one really knows why.

On July 3, 1985, at 3 a.m., Mark and a loser named Billy Ray Fox pulled up to an IGA grocery store.

Mark Fowler barely knew the guy; they'd met only four days earlier. Fox had a plan to make easy money. All he needed was a little help.

So after smoking pot and swallowing pills, they staggered into Fox's pickup and went to the market where Fox had been recently fired.

The former employee had a deal with the night manager. A bag of money, skimmed from the cash registers, would be waiting.

In their drugged stupidity, neither phoned to see if their accomplice was working.

He wasn't. And right there, Mark Fowler crossed the line.

The entire night shift, three men ranging in age from 27 to 44, were ordered face-down in the storage room. Two had their heads blown off with a 16-gauge shotgun. The third was beaten until the shotgun stock cracked, then stabbed to death.

Mark Fowler later said he stood lookout, and when he heard the shots from the back of the store, he went and sat in Fox's truck. Fox came out minutes later and threw the single-action shotgun on Fowler's lap, Mark told his father.

The murder evidence against Mark Fowler was circumstantial, but the jury believed it.

The police department's forensic expert testified that hair found on one victim's shirt and on the murder weapon matched Fowler's. It showed, Gilchrist said, that he had been in the storage room.

Mark Fowler died by injection this past January, two days before Billy Ray Fox.

''They didn't have to kill my boy,'' his father said, sobbing. ''They wanted to kill him.''

Jim Fowler is a tall man with a big laugh. His rough hands reach out to people he's just met, greeting strangers with a bearhug. Sometimes his warm and folksy voice carries stories about Mark without cracking. Sometimes it simply breaks.

''I cannot change what my son did. He went up there to get money dishonestly,'' he says. ''But he told us from day one that he didn't kill anybody.''

Gilchrist painted a different picture. The star witness at Mark Fowler's murder trial has helped put 11 men to death in a state that has more executions per capita than any other, according to a recent survey by Amnesty International.

But her testimony, spanning 13 years and hundreds of cases, is under investigation by the state, an organization of defense lawyers, the police department and the district attorney's office.

Her career began to unravel in May, when Oklahoma was forced to release Jeffery Todd Pierce, who served 15 years of a 65-year sentence for a rape he didn't commit. Recent DNA testing proved Pierce's semen didn't match that found in the victim.

Gilchrist is now on paid leave, pending an administrative hearing. She refused to be interviewed for this story. In earlier statements, she has denied any wrongdoing.

''I feel comfortable with the conclusions I drew,'' she told Time magazine.

It will take years and millions of dollars to sort through her mountain of disorganized files, investigators say.

Underneath is a nagging question: What if innocent people were executed because of Gilchrist's testimony?

This haunts Jim Fowler.

Four months after his son's 1986 conviction, Fowler's 82-year-old mother, Anne Laura Fowler, was raped and murdered in her Oklahoma City home. Gilchrist's testimony helped put Robert Lee Miller Jr. in prison. But 10 years after being sent to death row, Miller was released when a DNA semen analysis proved he didn't attack Mrs. Fowler. (Another man now awaits trial in the case, and defense lawyers are questioning evidence handled by Gilchrist's lab.)

Other questions obsess Jim Fowler.

If Gilchrist was wrong about Miller and Pierce, couldn't she be wrong about Mark? And about others already put to death?

The state says no.

''We have done a review of all of those cases and have preliminarily established that they're not problematic,'' said Gerald Adams, spokesman for the attorney general's office. However, the office has since announced that the prosecutions of three men now on death row would be examined further because of questions about Gilchrist's work.

Miller is now represented by Garvin Isaacs, a criminal defense attorney who fills a room simply by entering it. In a thick Oklahoma drawl, Isaacs doesn't talk, he thunders. Arms outstretched, palms up, he frets that the scales of justice will forever be unbalanced by one of the worst scandals in Oklahoma's legal history.

''We're in deep trouble,'' he says, seated at a gleaming table in his office conference room. ''The saddest part to me is that all these innocent people have gone to prison. I think there's a high degree of possibility that some of those people who were executed were innocent.''

Gilchrist, he contends, ''was not inept. She was mean. She deliberately convicted innocent people.''

During a ''60 Minutes II'' interview, Gilchrist said, ''I've never intentionally done anything wrong in a case.''

Jim Fowler thinks like Isaacs. Few things are inconceivable to him now.

Fowler lost his second son in 1994, while Mark was on death row. ''Jimbo'' Fowler was killed in a motorcycle accident on his way to work. The way Fowler's mother died makes the door to his mind slam shut.

''I don't have the words,'' he says. He weeps, then coughs, then apologizes.

Mark and Jimbo were adopted separately, each at 2 weeks old, from Catholic Charities. They were not blood brothers, but Fowler and his first wife, Carolyn, raised them to be. Jimbo was older and ''Mark liked to do whatever big brother did,'' their father said.

He holds up a photo of Carolyn and the boys, dated April 1968. Mark is a little boy with jug ears and a crew cut, staring at the camera. Dressed in a brown suit coat, he leans against his mother's knees, his right hand in her lap. Jimbo leans in from the other side. In the middle, a pretty woman in coral pumps smiles beneath a hat band sprouting pink flowers.

Mark was 15 when Carolyn died of cancer. ''He knew his biological mother had abandoned him. Then the only mother he knew died,'' says his father. ''I've always wondered if that had anything to do with it.''

''It'' being Mark's downfall.

He was arrested a few days after the murders, after Fox went home and told his roommates, ''I've done something terrible tonight. I killed some men.'' His roommates turned him in. Fox told detectives he hadn't gone to the market alone.

He and Mark Fowler were tried together, on the same charges.

District Attorney Bob Macy told jurors there was no way one man could kill three people with a single-action shotgun.

Gilchrist testified that hair consistent with Mark Fowler's was found on the shotgun and indicated ''close violent contact.'' The defense put on a forensic expert who said the strands indicated no such thing, and were just as consistent with Fox's hair as they were to Mark Fowler's.

The jury believed Gilchrist.

''She answers questions in a way that makes it clear she damn well knows what she's talking about,'' said Jim Fowler. ''And when (she's) talking to a jury, some of them were awestruck by this woman. This was gospel.''

After Mark's conviction, Jim and his second wife, Ann, whom he married in 1980, could not bring themselves to visit the state penitentiary.

''We were so angry at him,'' the father said. ''What the hell is my boy doing in prison? This is not the way I raised him.''

But over time reality sets in, he said, ''And then you get over it.''

During jailhouse visits, Fowler reconnected with his son. ''He said to me, 'Pop, I did a damn stupid thing. I went down to get this easy money.''

In those conversations, ''nothing was left unsaid. There must have 20,000 'I love you's,''' the father said. Fellow Roman Catholics from bishops on down begged in vain for Gov. Frank Keating to grant clemency.

Early on the day of Mark's execution, Fowler called his son.

''I told him that there might be as many as 200 people outside holding a candlelight vigil for him. He said, 'Dad, if that happens put your hand on your head when they pull back the curtain so I'll know.''

So Ann and Jim Fowler went to the execution, accompanied by bishops, priests and their son's appeals attorney. They sat down shaking. ''And the curtain went up and there was Mark on the gurney,'' said his father.

All of the family witnesses put a hand atop their heads. The guards glared. ''Mark looked back, and he saw that, and he settled down,'' said Jim Fowler.

Next came the question. Did the prisoner have any last words?

Mark began to recite the Hail Mary.

His six witnesses joined him.

''Hail Mary, full of grace, the Lord is with thee, blessed art thou amongst women ...''

And then it was over. ''We got up and waltzed out,'' said Jim Fowler, ''went back to the hotel, had a few drinks and went to bed. And that was how that went.''

Since then, the Fowlers spend most of their time fighting the death penalty. They are thankful Miller was not executed for the murder of Jim's mother.

Sometimes, Jim Fowler wishes only that Gilchrist and prosecutor Macy, the two he holds responsible for his son's death, be found guilty of sending innocent people to prison. In other moments, when pain and anger well up, he fantasizes punishments he'd rather not articulate.

His wife, Ann, has her own brand in mind. ''If she's guilty, let her spend a few years in prison -- and Macy, too. Let them serve some of the punishment they've dealt out.''

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