The Dreams of Ada (58 page)

One hope of Death Row inmates throughout the country was the case pending before the U.S. Supreme Court concerning the exclusion from juries of persons opposed to the death penalty. If the court ruled that such exclusions in capital cases were unconstitutional, hundreds of death sentences might well be commuted to life. The attorneys for Ward and Fontenot had that possibility in mind, because of the single gray-haired lady in the Ada courtroom who had been dismissed for that reason. But on May 5, 1986, the Supreme Court ruled, by a 6–3 vote, that such exclusions were permissible. The convictions, the sentences, would stand.

In the spring, the attorneys finally received their copies of the medical examiner’s report on Denice Haraway. The probable cause of death was listed as a gunshot wound to the head. It described “an entry gunshot wound to the left occiput and an exit gunshot wound to the right temporal region.” There was no reference anywhere in the report to stab wounds. There was also no reference to the expert finding, “to a 98 percent degree of certainty,” that there were no stab wounds evident. The attorneys remained uninformed of that finding.

Asked why the D.A.’s office had told the press Denice Haraway had been stabbed and shot, Chris Ross said the rib bones found had scratches on them “that would be consistent with being stabbed—that could have been stab wounds.” He conceded that the marks could also have been made by the teeth of dogs, coons, or other animals. He, too, did not mention the “98 percent” finding that they were animal marks.

The absence of any reference to stabbing in the official document was not reported in the media.

If there was any photographic evidence of the lavender blouse—as Dennis Smith had heard, but not seen—it was not included in the medical report.

In late spring, Karl Fontenot voluntarily roomed with Hank—one of the men who wanted to kill Tommy Ward. Those few people on the outside who had befriended Karl, including his new attorney, became concerned. They began to wonder, should he ever be cleared and released, what kind of life he would lead on the outside, after his time in McAlester.

Tommy Ward remained alone in his isolation cell, reading his Bible, writing letters and poems. One poem he called “Loneliness.”

In a letter, Tommy wrote:

I’ve seen with my owne eyes 3 deaths. One my dad and I seen a boy named Earney Horner at school get hit by a cemi truck. And seen a guy wreck on a motorcycle…That is the most frightning moments of my life, when I seen those 3 deaths.

In another letter, he wrote about his father:

After dad retired from the glass plant in Ada we picked up beer cans and sold them. We use to go out every pretty day and pick up beer cans on the side of the highways. There propely isn’t a highway in Oklahoma that we didn’t pick up cans on.

After we colected the cans for a wile we would smash them and put them in toe sacks and take them to the beer company in Shawnee. Back then the cans was 10 cents a pound. When we would take the cans and sell them we would get quiet a bit of money for them because we had so many pounds of cans. We didn’t half to pick up the cans because we needed the money. We picked them up so dad would get walking exercise. Since dad enjoyed walking he decided to pick up cans wile he did it. At first we would walk around near our house in Ada. Then as time went by we started going out on the highways all over the place. At that time I believe all of us kids were home besides Jimmy. Dad went into the hospitle of a heart atac. After that when he got out we quit picking up cans. I went out a few times around the house picking up cans for a wile. The summer of 83 I picked up cans because I didn’t have a job. I also picked pecans and sold them at the place they bie them in Ada. But getting back to the story. After dad had the heart atac we quit picking up cans. We didn’t go fishing as much eather. Then dad went into the hospitle again with gaulstones. After dad got out a cuple of years later he went back in the hospitle because the tube they put in him grew back wrong or was pinched some way. But they took tests on him and figgered that was what was wrong with him. When they operated on him they found surosis of the liver. The doctors sowed him back up and told the famaly. We all were at the hospitle when the doctor called mom and Joel (I believe) into the office. We all knew that something had must be wrong. Then mom and Joel came back to the waiting room crying and they told us about dad. The doctor told mom that he had only 6 months or so to live. Dad only lived 3 months.

Dad stayed in the hospitle a couple of weeks then came home. Dad was a pretty good size man. In the 3 months time he lived he lost a lot of weight. The first month he was home he got around pretty well on his own. The second month he got to were he stayed in bed the most of the time. He slep a lot also. He would be siting in his chair and fall to sleep with a lit cigarett in his hand and birn holes in his chair. We kept pretty well watch on him wile we were home from school and wile we were at school mom kept pretty well watch on him. Then in the third month he lived dad got real bad. Me or Melvin or Joel would half to help him up and down. The time was drawing nearer and nearer to his death and we knew it. I cry every time I think about how bad he got. I would half to hold him up wile he used the bathroom. And hold him so he wouldn’t pee all over the place. I had to help him to the bathroom the most of the time because Melvin would start crying and run outside. Joel was working at Don Hays Osmobeal and Caddlac and would come home around 5 or 6 oclock in the afternoon.

It was a hurrafying experance seeing dad get weeker and weeker. Then one day the teacher came in the classroom and told me that my sister was on her way to pick us kids up that our dad was about to die. I left the classroom crying and went outside. Me and Kay was the only ones in school at that time.

Mom came picked us up at school and took us home. It was on a Friday that she picked us up from school. Dad was in bed bearly breathing with his eyes closed. We stayed in his bedroom for 3 days watching his breaths get smaller and smaller. That Saturday night dad stoped breathing. My sister Trisha screamed No Daddy and grabed him he all of the sudden started breathing again. We all cryed for a long time after he started breathing again. Then the next morning (Sunday) about 9:00 dad took his last breath and died. I ran out of his room to the living room and cryed. I could hear Trisha crying and screaming no daddy no. I got up and went outside. Thadd Sellers was outside and I told him about dad and he came over. We didn’t have a phone so Thadd called the fuenarl home and they came after him.

When the people came to take dad away my famaly was crying and telling thim no that they cant take him away. Trisha cept screaming wake up daddy wake up. Joel and Melvin was screaming no daddy wake up. I went around to the back of the house and sit down crying. I couldn’t watch them people take my dad away.

One night, on his bunk in McAlester, Tommy Ward had a dream. He dreamed he had gotten out of prison, and was asleep at the house on Ashland Avenue; the house in which his father had lived, and had shaded with a pecan tree, and had died; the house the lawyers had sold. In the dream it was still his home. In the dream he was asleep in his bed when a drill came poking through the wall. The man who killed Denice Haraway was drilling through the wall into his room. The guy knew that the police would be after him, now that Tommy had been cleared and freed. Tommy saw the drill coming through the wall. He saw a hand coming through the hole. He tried to get out of bed, but he couldn’t move. The hole kept getting larger; the hand of Denice Haraway’s killer was pushing through it, coming after him. He tried to scream, but he couldn’t make a sound. He heard voices in another room. He tried to get up and run to them, but his feet wouldn’t move. The hand was coming closer.

He woke before the hand could get him. He had not seen the face of the man who killed Denice Haraway, only the hand.

His whole body was sweating. He got up from his bunk and took a drink of water. Then he sat on the edge of the bunk, trying to calm himself. His heart was going ninety-to-nothin’.

20

SECOND CHANCES

I
n June of 1986, after only a few weeks together, Karl Fontenot and his cellmate grew tired of each other. Karl apologized to Tommy Ward, said he was sorry he had called Tommy a snitch, and asked if Tommy would share a cell with him. Tommy accepted the apology. Friends again, they roomed together on Death Row while their attorneys worked on their appeals.

In mid-July, Fontenot’s attorney, Terry Hull, learned for the first time, from the medical examiner’s office, of the January finding that the marks on Denice Haraway’s rib cage had not been stab wounds, “to a 98 percent degree of certainty.” On August 8 she filed a motion for a new trial on the basis of newly discovered evidence—the finding of the body, and the withholding of this expert opinion by the district attorney.

Ms. Hull and Ward’s attorney, Joe Wrigley, worked independently, but conferred occasionally, on the separate briefs they would file seeking to have the convictions overturned. The briefs were filed in late summer and early autumn. They cited many legal grounds on which they asked the Court of Criminal Appeals to overturn the convictions. Among the principal ones were the following: that the denial of a change of venue had denied the suspects their right to a fair and impartial jury; that the two men should have been tried separately; that they had been denied due process of law by “official police misconduct”; that the confessions should not have been admitted, because they were not knowing and intelligent confessions; and that there was a lack of sufficient evidence to support a verdict of guilt.

After the filing of the briefs, Terry Hull asked the warden at McAlester to place Karl in a separate cell from Tommy. She felt that, should one or both be granted new trials, it would be better if they were not celling together. This was done immediately, in early September. In separate cells they continued to wait for the courts to decide their fates.

The Oklahoma State Attorney General’s office filed answer briefs to the appeals in the fall. The brief answering Ward’s appeal said that the state stood by its contention that Denice Haraway had been stabbed to death by the defendants; it maintained that the stab wounds did not show up on the skeletal remains. The brief said that since the body was found by a hunter, the bullet wound in the skull had been caused by a hunter’s stray bullet. No evidence was included to support this theory.

The defense filed their replies in December. The judges on the backlogged Court of Appeals would have to read all the materials, then set a date for oral arguments. Rulings on the appeal of the convictions of Tommy Ward and Karl Fontenot were not expected until late in 1987.

Terry Hull made repeated requests to see a copy of the OSBI report on the finding of Denice Haraway’s body. Her requests were denied, despite the fact that she worked for the Appellate Public Defender’s Office, another state agency. Her curiosity increased when she learned that Allan Tatum, the hunter who found the remains, claimed he had seen a piece of a blouse—and that it was not pale lavender with little blue flowers. The Ada authorities were still maintaining that no evidence of a blouse had been found.

In late February, Ms. Hull asked Richard Kerner if he would go to Gerty and interview Tatum about the matter. Kerner said he would. The hunter agreed to meet with Kerner; he took him to the spot where he had found the remains; they spent about two hours together. Tatum told Kerner he had clearly seen a piece of blouse, about three inches by one inch, right beside the rib cage. He said the blouse was a sort of multicolored gingham, like a plaid, and could not have been blue flowers that faded. He agreed to sign a sworn affidavit to that effect.

On April 1, in the presence of a notary public, Tatum signed an affidavit recounting his February 20 visit with Kerner and describing the piece of blouse he had seen when he found the skeleton. “I can only describe this blouse material,” the affidavit said, “as a gingham cloth, multi-colored, as in a calico cat. The blouse material was not just blue flowers on a lighter-colored material, as it contained other colors, not just blue.”

Kerner forwarded the affidavit to Terry Hull, who added it to her massive brief on behalf of Karl Fontenot’s appeal. A few days later, a researcher for a national television news program came to Ada. Learning of the affidavit, she asked the authorities about it. She was told that the fabric Tatum had seen was merely part of a “hunter’s shirt.” This was the first time they had acknowledged finding any part of a shirt or blouse at the scene.

Kerner made one further inquiry on behalf of the defendants. He went to the Court of Criminal Appeals, where the evidence introduced in the trial was on file; he obtained the full serial numbers of the two rolls of Polaroid film showing Tommy Ward and Karl Fontenot with short hair, which were hand-dated around Easter, 1984 a week before the Haraway disappearance. One shot showed an unopened Easter basket; the state had claimed in closing arguments that the pictures could have been taken on Easter of 1983, or even 1982. Kerner called the Polaroid Corporation. One of the rolls, he was told, had been manufactured in October of 1983; the other roll in February of 1984. This supported the defense contention that the pictures had been taken at Easter of 1984; it could prove pivotal if new trials were granted by the court.

On April 21, 1987, the U.S. Supreme Court issued a ruling in an unrelated case that directly affected the futures of Karl Fontenot and Tommy Ward. In the case
Cruz
vs.
New York
, the court overturned the conviction of a man whose co-defendant’s confession had been introduced at their joint trial. Until that time, when “interlocking” confessions were used at a joint trial, the judge routinely instructed the jury not to consider the confession of one defendant in considering the guilt or innocence of the other. The reason for this was that if the co-defendant did not take the witness stand, the defendant could not cross-examine his accuser, as allowed by the Sixth Amendment. But in
Cruz
, the Supreme Court held that the confession of a nontestifying co-defendant could be so devastating that a jury could not humanly disregard it, even if instructed to do so by the judge; and that in such instances it violated the defendant’s constitutional right to confront his accuser.

This opinion was clearly relevant to the joint trial of Ward and Fontenot. The Oklahoma Court of Criminal Appeals immediately requested both sides in the Ward and Fontenot cases to file briefs on how the Cruz case applied to these appeals.

Oral arguments on the two appeals were held, separately, on June 16. At 3 o’clock in the afternoon, Tuesday, August 11, the Oklahoma Court of Criminal Appeals, in a unanimous decision, reversed Karl Fontenot’s conviction. It remanded the case to Pontotoc County for a new trial.

The three judges said that the trial court had erred in admitting Ward’s accusatory statement at the joint trial, and that this error was harmful enough to have violated Karl Fontenot’s rights. It cited the Cruz case as the underpinning for the ruling. “Other than the statements given by Ward and Fontenot,” the court wrote, “there was no evidence linking appellant to the crimes.”

The reversal of Fontenot’s conviction put the Haraway case on the front page again in Ada. Assistant D.A. Chris Ross told the Ada
News
he was not surprised by the decision, in light of the Cruz ruling. He said he expected that Ward’s conviction would soon be reversed on the same grounds. “It is just a procedural error,” he said. And he compared the case to a boxing match: “You have to get up and go for the next round even though you won the last one.”

Tommy Ward and his family hoped that a similar ruling would soon be forthcoming in Tommy’s case. But one attorney close to the case noted privately that the court did not have to rule the same way in the Ward appeal. Error had definitely been committed in Ward’s case as well, this attorney said, but the court would have to find with Ward, as it had with Fontenot, that it was not “harmless error.”

For five more weeks, Ward and Fontenot remained in their adjacent cells at the state prison. On the morning of Thursday, September 17, Karl Fontenot was returned to the Pontotoc County jail, to await a new trial. George Butner, his court-appointed trial attorney, agreed to represent him again.

Tommy Ward remained in the state prison. The court had not yet ruled on his appeal.

Week after week passed, and still no ruling came. No one outside the court knew why. The briefs filed by Terry Hull on behalf of Karl Fontenot had been much more voluminous and complete than those filed by Joe Wrigley on behalf of Ward. Whether this fact was delaying the Ward ruling, no one could say.

As the new year, 1988, began, the court still hadn’t ruled on the appeal. Tommy Ward remained on Death Row.

In the spring and summer of 1987, a string of burglaries was committed in Ada in which more than $55,000 worth of property was stolen or destroyed. Police cracked the case in August and came up with twelve suspects, many of whom confessed. District Attorney Bill Peterson declined to file any charges—stating that the suspects were good boys from good homes, whose lives should not be destroyed by a criminal record. When this became public knowledge, a group of outraged citizens began circulating petitions calling for an investigation of Peterson’s handling of the D.A.’s office in this and other cases. In January of 1988, they filed enough signatures to force the empaneling of a grand jury to conduct an investigation. Among the cases the jury would be asked to look into were those against Tommy Ward and Karl Fontenot.

The grand jury’s proceedings, as always, were secret; whether the handling of the Ward-Fontenot matter was discussed was not made public. In any case, the grand jury issued no charges of wrongdoing against the district attorney. Bill Peterson remained in office.

As more months passed, life went on outside the courtroom: Dennis Smith retired from the Ada police department; Steve Haraway was remarried, to a legal secretary from Oklahoma City. On Death Row, Tommy Ward waited.

Finally, on May 20, 1988, the Oklahoma Court of Criminal Appeals ruled on the Ward case. In a unanimous decision, the three-member court reversed Ward’s convictions and ordered him remanded to Pontotoc County for a new trial. The grounds were the same as in the Fontenot reversal. The court held that under the Cruz ruling, the introduction of Fontenot’s confession in Ward’s trial had been prejudicial. No reason was given for the long delay in issuing this opinion.

Tommy called Tricia when he learned of the ruling. “He’s at least getting his hopes up again,” Tricia said. “He’s really excited. I just hope he can prove his innocence. Last time, everybody was really angry and upset. I just hope that this time people will listen to his side…We just keep praying, and everything is looking good once again—better than it has in a long time.”

The second trial of Karl Fontenot began on June 6, less than three weeks after the Ward conviction was overturned. It was not held in Ada. Both the prosecutor and the defense attorney had asked for a change of venue; they maintained that an impartial jury could not be empaneled in Ada because of publicity surrounding the case. Judge Donald E. Powers, the same judge who presided at the first trial, was presiding again. He ordered the new trial be moved to Holdenville, the county seat of adjacent Hughes County, in which Denice Haraway’s body had been found. It also happened to be the town in which Denice Haraway had been born.

From the prosecution point of view, the major difference in the second trial was that there would be no doubt that Denice Haraway was dead.

According to expert witnesses who testified early in the trial, dental records had established that the skeleton found by hunter Allan Tatum in Gerty was that of Denice Haraway. The medical examiner testified that she had been shot in the head, but he could not say for certain whether the shot had been fired before or after she was dead. He said there was no evidence on the skeleton that she had been stabbed repeatedly, as Fontenot had said in his taped statement. But he said it was possible that she could have been stabbed without this being evident on the skeleton. He said there was no evidence the body had been burned.

Most of the pretrial motions made by the defense attorney, George Butner, were turned down by the judge. But he did permit Butner to examine all the evidence found along with the body. In examining this evidence, Butner found a small portion of a red and white shirt. This had been listed as irrelevant by the prosecutors, because it had not been mentioned in the confessions. Butner spoke with appeals attorney Terry Hull. They reread what Tommy Ward had written to his attorney shortly after his arrest; he had said the police had given him a choice of two blouses that Denice Haraway might have been wearing: either little blue flowers, or red and white stripes. Here, the attorneys thought, was part of the blouse with red and white stripes! How could Tommy Ward have known about two of Haraway’s blouses, they asked themselves, unless he had been fed this information by the police.