The Dreams of Ada (57 page)

With the fact of Denice Haraway’s death now established beyond all doubt, Butner did not think an appeals court would free the defendants on any grounds without ordering a new trial. But he felt that this new evidence—the cause of death being a bullet wound—was extremely exculpatory. Since the state’s case rested so heavily on the confession tapes, and those made no mention of shooting, he believed the Court of Criminal Appeals—or some other court along the way—would order a new trial, and let a jury decide whether the confessions stood up.

In a profession where he was frequently called upon to defend murderers who were probably—or admittedly—guilty, Butner had never been sure about Karl Fontenot, one way or the other. The discovery of the body with a bullet in the skull raised new doubts in his mind, increased the likelihood that Karl was innocent.

About Tommy Ward he had more of a problem, because Ward had placed himself at the scene twice—not only in the confession tape, but again more than two months later, when he told his Marty Ashley story. If Ward had not been there that night, Butner felt, then he had real psychological problems.

The responsibility of getting Fontenot’s conviction overturned was no longer Butner’s. The case was now in the hands of Terry Hull, a female attorney in the Appellate Public Defender’s Office.

Terry Hull knew of the case, had been following it in the newspapers. She called George Butner to get more details. She felt that the case, with all its twists and turns, was the most incredible, the most difficult to believe, that she had ever encountered or heard of. The finding of the body in Gerty, with a bullet wound in the skull, was yet one more incredible twist.

Her early reaction was that there would be many promising grounds for appeal in the case: not because of the actions of Judge Powers, whom she felt was an excellent judge, but because of the nature of the case. But she could not determine what lines of appeal to follow until she read the voluminous transcript of the trial, and that would not be ready until April 25—six months after the date of sentencing.

Like all appeals, these would be decided one day in the calm, orderly atmosphere of the Court of Criminal Appeals in Oklahoma City. That, Ms. Hull felt, was one hundred percent to the good of her client—to get the decision making away from the roiled emotions and passions of a small town like Ada.

Her first action after the discovery of the body was to petition Judge Powers to hold a disclosure hearing: to compel the district attorney to turn over to the appeals attorneys all exculpatory evidence that may have been found along with the body, as well as the official medical examiner’s reports.

In the medical examiner’s office, meanwhile, opinions had changed. The first examination of the rib cage had been made for the office by Dr. Richard McWilliams, a consulting forensic anthropologist. He had reported “a scalloped cut wound” on one of the ribs. On the basis of that finding, Bill Peterson and the press had been informed that Denice Haraway had been stabbed as well as shot. During the next eight days, however, Dr. Larry E. Balding, a forensic pathologist in the medical examiner’s office, had made further studies. He had also called in for consultation Dr. Clyde Snow, a nationally known physical anthropologist on the staff of the University of Oklahoma. (In June of 1985, Dr. Snow had been one of six U.S. experts sent to Brazil to study and verify the remains of Nazi torturer Josef Mengele.) Together, Drs. Balding and Snow came to a new conclusion: that the marks on Denice Haraway’s rib cage had not been made by a knife, but had been made by animal teeth, “to a 98 percent degree of certainty.”

On January 31, Dr. Balding telephoned Bill Peterson and told him of this finding. He made a memo of the phone conversation for his files.

Peterson did not notify the defense attorneys of this new finding. Nor did he tell the press or the public, who were left to believe there was evidence that Denice Haraway had been stabbed as well as shot.

Inside the prison, Tommy and Karl were still not speaking. Tommy remained in protective isolation; Karl hung out increasingly with the man who was threatening to kill Tommy because of his unpaid poker debt; with the men who were threatening to kill Tommy because Karl had said he was a snitch. Tommy read his Bible, took a Bible correspondence course, went to chapel regularly. Karl dropped all pretense of religious faith. He was in with, in Tommy’s view, “a bad bunch.”

In the Pontotoc County Jail, Ward’s weight had dropped forty pounds, from 165 to 125. He had not liked the food; he’d been too nervous to eat much, and lack of exercise had decreased his appetite. At McAlester, though he was still nervous, there was exercise and better food: real milk instead of powdered milk; even a steak sometimes. He built up rapidly to his normal weight, grew muscular from doing pushups in his cell, joked about developing a small belly.

One day he was handed a note by a trustee. It was from the inmate in the cell across the corridor. The inmate wrote Tommy that he was falling in love with him.

Tommy was repelled. One day he’d seen that same inmate performing oral sex on a trustee through the bars of his cell. Tommy kept away from the door, out of sight, as much as possible after that.

His cell was a few feet from the shower room. In protective isolation he was allowed to shower alone. Karl usually was brought to shower with two or three of his new buddies. One day Tommy could hear them talking by the shower room. One of the inmates was urging Karl to tell the authorities that Tommy had killed Denice Haraway. Then, the inmate said, they could kill Tommy in the prison, and no one would care—and Karl would go free.

Tommy was afraid Karl might do that, might believe he could get freed that way.

A month after the body was found, Ada authorities decided to conduct one more search of the fateful hillside near Gerty. They scheduled it for Saturday, February 22. Members of Denice Haraway’s family learned of the planned search, and asked if they could go along and help. The district attorney’s office felt it could not refuse the request.

The weather had turned warm again after a brief period of snow. The peach trees in Dennis Smith’s yard were already in early bloom; he was hoping a frost would not destroy them.

The day of the search was sunny and blue, the temperature near sixty degrees. The detective captain was apprehensive as he headed to Gerty. Another search might prove useful in turning up more bones, more clothing, perhaps even the murder weapon. But with members of Denice’s family along, it could become an emotional scene. A professional police officer looking for pieces of a skeleton was one thing; a family looking for pieces of a daughter, a wife, a sister they had loved, was something else.

About forty people had gathered at Gerty when the search began at 9
A.M
.: officers and family both. They lined up a few hundred feet from where the skull had been found. Shoulder to shoulder, they got down on their hands and knees, and began to rake through the fallen leaves with their fingers, their hands. Among them were Steve Haraway; Dr. Jack Haraway; Jimmy Lyon, Denice’s father; Ron Lyon, her brother; and other relatives, including several women. Side by side with the law officers, they crawled across the hillside, turning up the dead leaves, brushing past thickets beginning to show green buds of new life. They reached the spot where the skull had been, searched there; continued past it for many more yards. The searching went on for hours. There were no outbursts, no tears. Smith’s fear of an emotional scene wasn’t realized. The searchers were stoic, methodical.

When they had crossed the hillside, they did another search, walking this time. It was late afternoon by the time they quit. They had found more bits of blue-jean fabric, a few small bones. Nothing more.

Some time later, when the lab people had finished photographing and cataloguing the bones, X-raying the skull, testing the remnants with chemicals—recording the evidence of the homicide, in case a new trial were ever ordered—the remains of Donna Denice Haraway would be turned over to her family for interment.

The service would be private. Not even the police would be invited. No public announcement would be made.

On Monday, March 3, the principals—judge, attorneys, D.A.—were back in the courtroom where the trial had taken place, this time for the evidentiary hearing. It was mostly routine. Terry Hull, joined by Don Wyatt, requested that all exculpatory evidence obtained by the D.A. since the trial—including the medical examiner’s report—be turned over to the defense. Bill Peterson said he had not yet received the official report, that he would make it available when he did. Judge Powers ordered that all new evidence in the case, already obtained or that might be obtained in the future, be turned over to the appeals attorneys within five days of discovery.

As the hearing neared its end, Don Wyatt approached the bench. His ailing father-in-law, he told the judge, had died in December. And his own father had died, unexpectedly, of a heart attack just eight days before, on February 23. Because of this, it was an extremely difficult time, Wyatt told the judge. He requested, for personal reasons, to be relieved of his duties as Tommy Ward’s court-appointed attorney for the appeals process.

Judge Powers denied the oral motion. But he told Wyatt to submit the request again in writing.

In the ensuing days, the judge contacted other Ada attorneys. None of them wanted to work on behalf of Tommy Ward. The judge could have appointed them against their will, but he did not like to do that; he did not think it made for good justice.

About a week later, the judge found an attorney in Seminole, thirty miles north of Ada, who agreed to take the case. His name was Joe Wrigley. The judge then granted Don Wyatt’s motion to withdraw, and he appointed Wrigley to be Ward’s new lawyer.

For the second time, Winifred Harrell closed her file on the Tommy Ward case. “In one way, it’s a relief,” she said. “In another way, I hate to get out of it.”

Miz Ward drove down from Tulsa to visit Tommy, a two-hour drive, on Saturday, March 8. It was one of their better visits; they spent most of it reminiscing about Tommy’s childhood, about his dad.

Tommy remembered a game they used to play, where his dad would look like he was asleep in a chair. The kids would go over to him and stick their finger in his hand, and he would grab their finger and hold it tight and not let go, all the time pretending that he was asleep. The kids would start yelling, “Let me go, let me go.” But he would not let go.

They reminisced about times Tommy got whipped with a switch his dad kept in the back of his 1949 pickup. Usually he got whipped for going to another kid’s house after school without getting permission; he’d always be sure to be home by dark, by suppertime, but he’d still get whipped if he hadn’t gotten permission first. He remembered one time when he left a note at home that he was going to a friend’s house to help with a yard sale. When he got home, he got whipped in spite of the note. “You’re supposed to be here,” his dad said. “The note ain’t you.”

These personal visits were the only times Tommy could hear his family’s voices now; Bud and Tricia had lost their telephone in January, because they could not pay for the collect calls, and could not say no to them; Miz Ward, living at Joel’s house, had lost the phone there for the same reason.

Miz Ward remembered times when Tommy’s dad would be upset because someone had done something wrong and none of the kids would own up to it. He would get angry, trying to get somebody to admit doing it. Tommy would sit at the table, twitching his fingers, twitching and twitching, and finally he would say, “I did it, Daddy!” He would take the blame, and get the whipping, when a lot of the time he hadn’t done it. He just couldn’t stand to see his father angry like that.

When Miz Ward recollected that, Tommy said, “Just like now.”

One day as Tommy was led from the visiting area, an inmate on his way there began to talk to him. He said he had been amazed that Tommy and Karl were convicted, and said that he knew they didn’t do it. Tommy did not recognize him at first; then he realized who it was. It was Billy Charley, from Ada: the fellow whose name had been called in to the police about thirty times, the same number as Tommy’s, as looking like one of the composite drawings. Now Billy Charley was in McAlester himself, doing time for burglary.

Billy Charley asked Tommy Ward how he was doing. They wished each other luck.

On April 25, 1986, six months to the day after Ward and Fontenot were sentenced to death, their petitions in error—the formal name for their notices of appeal—were filed with the Oklahoma Court of Criminal Appeals. On the same day—the deadline—the twelve-volume transcript of the trial was filed with the court, and was sent to the two appeals attorneys. That set a new calendar in motion. The attorneys, Terry Hull for Fontenot and Joe Wrigley for Ward, would have 120 days to file written briefs supporting their motions to overturn the convictions on various grounds. The state of Oklahoma would then have 60 days to file answering briefs. These would be prepared not by District Attorney Peterson, but by the State Attorney General’s office. The appeals attorneys could request time to reply to the answer briefs; it was normally granted by the court if sought.

When all of the briefs had been filed, the Court of Criminal Appeals would schedule oral arguments. Only after these were heard would the court issue its rulings. The appeals on behalf of Ward and Fontenot would be handled separately throughout, as independent cases.

This initial appeals process normally would take up to a year, or more. The court, on the various motions, could overturn the convictions, could order a new trial for one or both defendants, or could turn down the motions and let the convictions and the death sentences stand. If that happened, the attorneys could find other avenues of appeal. There were inmates at McAlester who had been sentenced to death in 1977 and whose appeals had not run out nine years later.