Authors: Robert Mayer
Butner could not enter Ward’s statement into this trial, because that would bring Ward right back into Fontenot’s case. Instead, he tried to link the piece of red and white fabric with the red and gold earrings found with the body; he suggested to the jury that a young woman would more likely wear red earrings with a red and white shirt than with a lavender and blue shirt.
The prosecution argued that the red and white material was less decomposed than the other cloth found at the scene, and thus had not belonged to Denice Haraway; they suggested it was part of a boy’s T-shirt.
For the most part, the prosecution case was the same as at the first trial. There was no solid evidence at all against Karl Fontenot—until the devastating confession tape was shown. The prosecutors conceded that many of the details in the confession were false. But they maintained that the essence was true: that Karl Fontenot had been one of those who kidnapped and raped and murdered Denice Haraway.
For Fontenot’s defense, attorney Butner relied primarily on the testimony of an Oklahoma psychiatrist, Dr. Joel Dreyer, who had examined Fontenot for several hours. The doctor testified that Karl Fontenot suffers from “post-traumatic stress disorder.” He said Fontenot did not kill Denice Haraway. Dreyer described to the jury how Fontenot’s mother had been killed in front of his eyes while their car was stalled on the highway after a minor traffic accident. He said Fontenot blames himself for his mother’s death, and had been “willing to take the place of Haraway’s murderer and confess to a killing he didn’t do.” Dreyer said Fontenot felt “worthless, and believed he should be punished for his mother’s death.”
The psychiatrist said Fontenot’s confession had been supplied to him by police officers. He said Fontenot has “abnormally low intelligence” and “is not bright enough to distinguish between right and wrong.” He said Fontenot had told lies to police officers to get attention.
Dr. Sandra Petrick, director of psychiatry at Eastern State Hospital, who had examined Fontenot before his first trial, testified that she believed Fontenot did not understand his Miranda rights when he talked to the police. She said Fontenot had told her he would not have talked with the police if he had understood the meaning of a “confession.”
OSBI agent Gary Rogers conceded that Fontenot had not been charged with the murder until seventeen days after his arrest. But he denied that police had planted information for his confession during that time. “If we wanted to frame him,” Rogers said, “we could have provided other evidence.”
In his closing argument, Assistant District Attorney Chris Ross belittled the testimony of Dreyer, who had formerly practiced in Michigan. He referred to the psychiatrist as “Dr. Detroit” and “The Detroit Flash,” and said the doctor was merely parroting back what Fontenot had told him. The sneering nicknames played to two prejudices prevalent in that part of Oklahoma—a mistrust of outsiders, and a mistrust of psychiatrists.
The case went to the jury on Tuesday, June 14. The jurors deliberated for about an hour. Then they returned their verdicts. They found Karl Fontenot guilty of robbery, of kidnapping, and of first degree murder.
Once again the confession tape, though provably false in many respects, had been impossible for the defense to overcome.
Next came the penalty phase. Bill Peterson read to the jury the testimony of Joanne Price from the first trial, in which Price said she had been run off the road by a gray-primered pickup with two men in it. This was permitted because Price allegedly had moved from Ada and could not be located to testify in person.
The jury deliberated the penalty for about three hours. Then it recommended that Karl Fontenot be put to death.
The sentence was formally imposed by Judge Powers on July 8. He set an execution date of October 5, 1988. The execution would be automatically stayed pending appeal. Fontenot was returned to Death Row in McAlester.
At the office of the appellate public defender in Oklahoma City, Terry Hull and others were appalled that Fontenot had been convicted again with virtually no evidence against him beyond the questionable taped confession. “I can’t believe it happened twice,” Hull said. She volunteered to handle Fontenot’s appeal again. Months later, when she was able to read the transcript of the second trial, she found a brutal irony in it. She felt that without the Ward tape, which the prosecution had been forced by the courts to omit, the case against Fontenot seemed more consistent—because the jury was not aware of all the contradictions between the two “confessions.”
The conviction of Fontenot brought new gloom to Tommy Ward and his family. Tommy had won a reprieve from the appeals court only a few weeks earlier; now it seemed unlikely that Tommy’s second trial would turn out different than Karl’s. They could only pray for a miracle.
The road to Ward’s new trial was fraught with delays. Judge Powers appointed attorney Bill Cathey to represent him. It seemed like a sensible move; Cathey was a member of the Wyatt law firm that had represented Ward at his first trial; he did not have a lot of criminal court experience, but he was familiar with the case, and he believed in Tommy’s innocence. But Cathey had to withdraw from the case because of illness. A new attorney had to be appointed, and had to familiarize himself with the complex case. This led to delays in the start of the trial, from October of 1988 to February of 1989, and finally to May of 1989.
Powers ordered that this trial, too, be moved from Ada. It would be held in Shawnee, in Pottawatomie County, about forty-five miles north of Ada. Ward’s new court-appointed attorney was a Shawnee lawyer named Truman Simpson.
Jury selection began on May 31. Six men and six women were chosen. The prosecution case was virtually the same as at the Fontenot trial—Jack Paschall, Karen Wise, Jim Moyer, Dennis Smith—all of it building up, this time, to the showing of the Ward confession tape. Then the prosecution rested.
Defense attorney Simpson, aware that Karl Fontenot had been convicted by virtually the same testimony, decided to take a major risk. He put Tommy Ward on the witness stand in his own defense—leaving him open to cross-examination in front of the jury.
Ward told the jury what he had been telling his family and others for years: that he was innocent; that he had told the police he was innocent; that only after they kept badgering him did he tell them a dream he’d had. The police told him this dream was about the Haraway case, Ward testified, and they pressured him until he made up lies for his taped statement. When they found out these were lies, he said, he hoped he would be freed. He admitted he had told a series of lies while being held in jail. He swore he was telling the truth now.
His attorney asked him if he knew who had committed the crime. “I wish to God I did,” he answered, “because I wouldn’t be here.”
Several new witnesses came forward to aid Ward before this second trial, and Simpson called them to testify:
One was a woman named Edna Harris. She said she had seen a blond man in a blue and gray van at McAnally’s the night Denice Haraway was abducted. She said the man made her nervous because he kept staring at her. She said she told investigators about the man, but that she was never called to testify.
A man named Joe McCarty told jurors his 1973 pickup was stolen from his nearby farm the weekend Denice Haraway disappeared. He said a farm employee, Jim Raines, had stolen the truck along with cash, credit cards, and several guns. He said the truck was green but had been painted with gray primer. When he reported the pickup stolen, McCarty said Raines was thirty-six years old and about six feet tall. He said he had told investigators Raines resembled the composite drawing of a suspect in the Haraway case.
McCarty testified that Raines was later arrested in Galveston, Texas, and that the truck had been impounded by police there. He said he had not been able to get the truck back because he did not have a title to it.
On cross-examination by Ross, McCarty said he could not be certain which day of the weekend the truck had been stolen. And he said it was a GMC truck, not a Chevrolet. The prosecutors later recalled several witnesses, including Jack Paschall and Jim Moyer, and showed them a picture of the stolen pickup. They said it was not the pickup they had seen on the night five years earlier that Denice Haraway had disappeared. And they said Jim Raines was not the man they had seen.
Another new defense witness was Dr. Edith King, an Oklahoma County psychologist. King testified that she had administered four psychological tests to Ward while he was awaiting this second trial. She said the results showed Tommy Ward to be passive, nonassertive, and sensitive to others. She said the tests did not show him to be a violent or antisocial person. She said he seemed religious, had positive family values, and that his general attitude was “mainstream.”
King also said she had watched the two videotapes of Ward’s statements. She said that in the October 12 tape, when he insisted on his innocence, he appeared normal; but that in the second, “confession” tape, he was “too rehearsed and automatic,” and seemed to be reciting his lines.
Under cross-examination by Chris Ross, the psychologist conceded that the results might have been different if the tests had been administered five years earlier. She also conceded that behavior is affected by drugs and alcohol, and that she could not predict how patients would act under the influence of those substances.
After closing arguments, the case went to the jury, which had been listening to testimony for twelve days. The jurors deliberated for several hours on Thursday night, June 15, and for several more hours on Friday morning. Then it handed down its verdict. Tommy Ward once again was found guilty on all counts.
When the verdict was announced, Ward began to sob uncontrollably. “You’re all liars,” he shouted. He stood and looked toward the prosecutors. “I hope you’re satisfied,” he said. “I’m getting punished for something I didn’t do.”
After a recess, the penalty phase on the murder charge was held: life in prison, or death? The testimony of Joanne Price was once more read into the record. But this time the defense had a rebuttal. Attorney Simpson showed the jury a radio log from the Pontotoc County sheriff’s office, which had received the call about the attack on Price. The typewritten log stated that the vehicle that forced Price off the road was a “silver and black Plymouth”—not a gray-primered pickup, as Price had testified at the first trial.
In response, the prosecutors called to the stand a former county jailer, Paul Harbin. He testified that the log was in error. He said Price had described a gray-colored pickup, but that the person who typed the log must have mistaken his notes and typed the wrong description.
The jury deliberated for two hours. At 11:20 Friday night, it handed down its verdict: life in prison.
Unlike Fontenot, Tommy Ward had escaped a death sentence.
The death penalty was averted by a lone female juror. She told the others that no matter how long they sat in the jury room, she would not vote for the death penalty in this case.
After the trial, this juror spoke with Tommy Ward’s family. According to Tricia, the juror told them she believed that Tommy was innocent. But she had voted “guilty” for the following reason: if she voted “not guilty,” and the trial ended in a hung jury, a new trial would be held, Ward would be found guilty again, and would be given the death penalty again. By finding him guilty, the juror told the family, she had been able to spare Tommy the death penalty.
In early July, 1989, Judge Powers made the sentences official. He ordered that they be served consecutively, not concurrently: ten years for robbery, twenty years for kidnapping, and life in prison for murder. According to the district attorney’s office, this meant that Tommy Ward would be eligible for parole in about twenty-one years.
A year had passed since Karl Fontenot’s second conviction; he remained on Death Row in McAlester. Tommy Ward, no longer under sentence of death, was incarcerated at the Lexington Correctional Center, a medium security prison in Lexington, Oklahoma.
Another year passed. Now it was June of 1990. The two men had been imprisoned for nearly six years. Backed up with other cases, Terry Hull was only now able to plunge into the task of fashioning an appeal of Karl Fontenot’s second conviction. She remained convinced that both Fontenot and Ward were innocent.
In prison, Fontenot watched television, sat in front of a small fan in his cell, made picture frames out of toothpicks and glue—when he had enough toothpicks and enough glue. He and Tommy were not corresponding. Karl could not help feeling a certain bitterness that he had been dealt with more harshly than Tommy had.
The appellate process eventually rewarded Fontenot with a victory—of sorts. The court found that in the penalty phase of his trial, the jurors had been given only two choices—life in prison or death. They should have been offered a third choice, life in prison without parole. Because of that judicial error, the court commuted his sentence from death to the omitted choice. Karl Fontenot would be permitted to live out all of his natural days—behind bars, with no hope of ever getting out. He was transferred from Death Row to a prison in a town called Hominy.
Tommy found life at Lexington infinitely preferable to life on Death Row. He could receive visits from his family in a visiting room, where hugs were permitted. He could walk the grounds, the softball field. Most of all, he was no longer under sentence of death. His voice no longer trembled the way it had at McAlester. He began to plan for a future, however distant it might be. He took a course in Rational Behavior Training, and he began to work toward a GED—a high school equivalency degree. Beyond that he envisioned taking vocational classes in heating and air-conditioning maintenance.
Some days he was grateful that he was no longer in McAlester; other days were not as bright, and he referred to what he had been through as “pure hell.” Even at Lexington there were inmates who might stick a knife in his back at any time. He felt lucky to survive each day.