12
TRIAL BY JURY
At 6:07 in the still-dark morning of September 9, the first train whistle of the day wailed across Ada—at first, from a distance, mournfully; and then, as the train drew closer, maniacally. It was heard by many of those involved in the Haraway case as they lay in their beds, awakened early by adrenaline rush.
Detective Captain Dennis Smith was out and about soon after, with his wife, tossing the day’s copies of the Daily Oklahoman onto the lawns of subscribers. Many of those involved in the trial due to begin that morning were startled as they unfolded the paper and read the front-page headline sprawled across four columns:
CUSTOMERS FIND
BODY OF CLERK
Their astonishment was only momentary, however. The headline had nothing to do with the Haraway case. It referred to the robbery-murder of a male convenience store clerk in Oklahoma City the night before.
At 8 A.M., District Attorney Bill Peterson was already in his office, alone, behind a locked door. Even at that early hour the air was warm and moist; the heat wave was continuing, and the courthouse air conditioning had not yet taken effect. The district attorney removed the jacket of his suit. He sat in the large swivel chair behind his desk, leaned back, gazed abstractedly at the walls, on his face a look of contemplation. His hand idly toyed with the wide end of the striped tie that rested on his belly.
Across the street from the courthouse was the office of the local gas company; beside it, a large dirt parking lot. Slowly the lot began to fill with cars, station wagons, pickups, as the people who had been called for jury duty this day arrived from their homes in Ada, or from the smaller towns of Pontotoc County: Roff, Stonewall, Tupelo, Francis, Byng…They walked across Thirteenth Street, alone or in clusters, entered the courthouse through the double glass doors, passed the D.A.’s office on the left, the sheriff’s office on the right; passed vending machines displaying wrapped candy bars, bags of chips, passed soft drink machines, to the stairs; found their way by prior knowledge, or by asking, or by following the stream of people, to the third floor. There, outside the larger courtroom, a rectangular table had been set up; behind it sat court clerks. A single line formed at the table, crossed the third-floor hall, wound down the stairs as the prospective jurors gave their names to the clerks, who had to find them on a list that was seven legal sheets long. Signatures were then scrawled beside typed names, typed numbers. As each prospective juror signed in, he or she was given a temporary badge, and shown the way into the courtroom, through a small outer office to the left of the central doors. The main doors were locked, would be kept locked throughout the trial, for tighter security. The prospective jurors were not searched, but several sheriff’s deputies stood in the corridor, others near the entrance, watching.
Slowly the entire spectator section in the courtroom was filled with prospective jurors, including the front row, normally reserved for the press, when there was any press. Additional chairs were carried in by bailiffs and placed along the side walls. When all were seated, there were eighty-three prospective jurors, from whom twelve, and two alternates, would be chosen.
The district attorney placed a box of books on the prosecution table. The defense team—Don Wyatt, Leo Austin, George Butner—huddled in a rear office they would use during the trial. Judge Ronald Jones, the presiding judge of the county—the one who had withdrawn from the case—entered the courtroom, and spoke to the assembled citizens about doing their public duty. Originally there had been a panel of 225 people who had been called for jury duty this day, he told them. More than 70 had been excused because they were physically unable to serve; some had been excused because they were convicted felons, others for other reasons. Now it was down to the people in front of him. He told them that those chosen as jurors would receive $12.50 a day. The jury would not be sequestered, he said—at least not at the start of the trial. He stated their goal in a single sentence: “We are seeking the truth as it is found to be established by competent evidence.”
Then he left the courtroom.
On the lawn between the courthouse and the jail, two stories below, there were, somewhat unexpectedly, no spectators gathered, no gawkers, and no lines of deputies to keep them away. The door to the jail opened from the inside. Tommy Ward and Karl Fontenot were escorted out into the morning air. Ward was wearing a dark blue suit, a light blue dress shirt, a tie, all courtesy of his brother-in-law, Bud; Fontenot was wearing the rust-colored corduroy suit and the pale striped shirt that Miz Ward had bought at the Salvation Army; and a tie. Both were wearing handcuffs. Four uniformed sheriff’s deputies walked with them the forty-three steps from jail to courthouse, a deputy on each side of each suspect, holding lightly to their upper arms. The sun shone brightly. The pecan tree beneath which they passed was in leafy bloom.
In the first-floor corridor the small retinue waited for the elevator. On the third floor, in the small outer office, out of sight of the prospective jurors, the handcuffs were removed. A moment later, at 9:52 A.M., Tommy Ward and Karl Fontenot walked into the crowded courtroom, to go on trial for their lives.
They sat at the defense table, facing the front, their backs to the prospective jurors. Don Wyatt, Leo Austin, George Butner joined them at the table. At the prosecution table to the right sat Bill Peterson, Chris Ross, Gary Rogers. From a rear entryway that led to the judge’s chambers, the court reporter, a well-groomed young woman named Dawn DeVoe, entered, took her place at her machine at the far side of the bench. A moment later all in the courtroom stood at the bailiff’s command as Judge Donald Powers entered and climbed to the bench, looking courtly in his black robe, with his wavy white hair, his rimless eyeglasses that were round at the bottom, flat on top.
“You may be seated,” the judge said.
All sat.
The trial in the Haraway case was under way, thirty-nine days short of a year after the suspects were arrested, sixteen months and twelve days after Donna Denice Haraway disappeared without a trace.
DAY ONE
In brief opening remarks, the judge explained to the panel the procedure to be used in selecting the jury: each side would be allowed nine peremptory challenges, with which they could dismiss jurors without stating a reason; the number of dismissals for cause would be unlimited.
The court clerk, seated to the judge’s left, reached into a box, pulling out tags. One by one she read out a number, a name. One by one the people whose names were called edged their way out from among the crowded benches, walked through the low swinging half door held open by the bailiff, took their places in the jury box, across the courtroom from the judge, to the left of the defendants. A few of those called winced as they heard their names, their faces clearly showing that they did not want to serve. Some strode forward purposefully, with an aura of grim satisfaction. Most tried to remain expressionless. As the jury box filled, the attorneys on both sides watched intently. It was an axiom of trial law: often the case is decided by who winds up in the jury box.
When all twelve of the brown swivel chairs were filled, Judge Powers told them of the case: the State of Oklahoma versus Thomas Jesse Ward and Karl Allen Fontenot; the defendants accused of robbing, kidnapping, and murdering Donna Denice Haraway. He then asked if any of them had read of or heard of the case.
All twelve raised their hands.
The judge told them to think about whether, based on what they had read or heard, they had formed an opinion. He said they had formed an opinion if, in their minds, they knew, “I’m not starting out even right now.”
There was laughter in much of the courtroom.
The judge said he would read a list of names: of the principals in the case, the attorneys, and all the witnesses that would be called by the state. They were to think about whether they knew any of these people, had had any dealings with any of them. He would not name the defense witnesses, he said, because the defense, under the law, did not have to make that public. He read the list. Then, one by one, beginning with the first seat in the jury box, he questioned the panel about whether they knew any of the names he had read, about whether they had formed an opinion in the case that they could not set aside.
Panelist one was excused, for having an opinion; so were panelists two and three; panelist four was excused because a nephew was married to Melva Ward.
Number five said that although he had heard of the case, he knew nothing about it. “I don’t take the local paper or watch the local station,” he said. “I have a satellite.”
There was laughter again. He was allowed to remain, for now.
Panelist six had an opinion. Number seven knew Betty Haraway, Steve Haraway’s mother. Number eight knew some of the witnesses.
On and on it went, through the morning. There was a recess for lunch. Then it continued through the long afternoon. As each panelist was dismissed for cause, the clerk reached into her box, pulled out another number, another name. Another member of the panel moved from the thinning crowd in the spectator section into the jury box: often to leave soon after, excused for cause, for having an opinion. But as the day wore on, more and more said they did not have an opinion; or that if they did, they could set it aside, and weigh only the evidence in the case as it would be presented in the courtroom.
One woman said that Tricia Wolf, Tommy Ward’s sister, shopped in the store where she worked. Don Wyatt stood and said the woman would be called as a witness; she was excused. Another said she thought she had gone to grade school with Tommy Ward, but she had no opinion; she was allowed to remain, for the time being.
A man named Keith Hildreth said he was the personnel manager at the Evergreen feed mill, and that he knew Tommy Ward’s brother-in-law Bud Wolf. The judge asked whether, because of this acquaintance, if Bud Wolf were called as a witness, the juror would give more or less credence to what Bud Wolf said than to the word of other witnesses.
“I would give his word more credence,” Hildreth said.
He was excused for cause. The judge explained to the others that if he asked that question of them, he wanted to know if they would give more or less credence to a witness—but they should not say if it was more or less.
Laughter punctuated the growing weariness.
More were called; more were dismissed. Evening was approaching. The judge recessed the case till 9 A.M. He warned the panelists, on their honor, not to read or watch news reports of the proceedings; not to discuss the case with anyone, not even their spouses.
The remaining panelists filed out, quietly.
That night, many of the participants relaxed in front of their television sets. It was the start of Monday Night Football, and the Dallas Cowboys were playing; Ada, only 180 miles from Dallas, was Cowboy country. A few attended a benefit concert for Valley View Hospital given by country singer Hoyt Axton, whose brother, John, lived in Ada; the singer was a frequent visitor.
In the morning they were back.
DAY TWO
The questioning of the panel resumed.
Tommy Ward was wearing Bud’s three-piece beige suit. Karl Fontenot was wearing the dark blue suit that Tommy had worn the day before.
A panelist said Dennis Smith was investigating a crime in which her husband had been victimized; she was excused. Another had pending business with the D.A.’s office; she was excused. A third was close to Odell Titsworth’s family; she was excused.
There were seats available now in the spectator section; the press, allowed to stand the day before, reclaimed the front row. There were seven news reporters present: Dorothy Hogue of the Ada News, others from the local TV and radio stations, from the Daily Oklahoman and the Tulsa World; by happenstance, all seven were female.
Miz Ward, Melvin, Joel, Kay, Joice sat behind them. During a recess, Joel told Don Wyatt that one woman on the panel, Mary Floyd, stern-looking, gray-haired, used to be a teacher at Latta Elementary School, and that she had disliked Tommy when he was little. Wyatt pondered the information; he was hoping to keep Mary Floyd on the jury. Her daughter was going to be a witness for the defense. He told the family this; they left it up to him.
After the recess the defense attorneys used a number of their peremptory challenges; Wyatt let Mary Floyd remain.
He had, in his mind, no profile of the jurors he wanted; he went by his gut reactions. His belief about the jury was, “When it’s right, you’ll know it.”
At the prosecution table, Bill Peterson would be satisfied with “upstanding citizens, with a stake in society.”
The questioning continued. Every panelist was asked, by the judge or by Peterson, whether, if there should be a conviction in the case, they would have any problem imposing the death penalty, which the jury would have to decide. Of more than sixty-five panelists questioned, only one, a slight, gray-haired woman, said she would have a problem.
“No matter how strong the case?” the judge asked.
“I don’t believe in taking lives,” the woman said.
She was excused for cause.
Later, Judge Powers would marvel that out of all those questioned, only one was opposed to the death penalty. Twenty years ago, he mused, there would have been twenty times that many, even in Ada.
The Feed Store Restaurant was on Broadway, half a block from the courthouse. It had a large menu. The specialty was baked potatoes with an assortment of toppings. Wooden booths lined both walls; several rows of tables filled the center. A number of the people still on the panel went to lunch there. One of them was a tall, slim, attractive young woman named Shelley Johnson. She was married, had two children, ages five and two and a half; her mother-in-law was taking care of them.
Mrs. Johnson, like many of the others, had been upset when she got her jury notice; she was nervous about being questioned. Now she felt both sides had gone easy on her. Coming to the courthouse the day before, she had not wanted to be selected; now she was hoping to remain; they had gotten her interested.
She had not expected to stay on the panel even this long, because she was so close in age, even in appearance, to Denice Haraway.
“When I got home last night, my husband had the kids fed and dinner ready,” Mrs. Johnson said. “All I had to do was fix breakfast this morning. I could get into that.”
The court session resumed. With seats now available, Tricia was present for the first time. She had just returned from a doctor’s appointment, and was happy; she had not gained any weight since her last visit.
The questioning of panelists continued. Bill Peterson waived the state’s sixth peremptory challenge: the state was prepared to accept the panel now in the jury box, he said.
The defense continued to remove people. Wyatt, Austin, Butner huddled together, going over the names, agreeing on whom to eliminate with their sixth, seventh, eighth challenges.
The state continued to pass.
The defense had one challenge left. The attorneys felt it was as good a jury as they were likely to get, without being able to read their minds. But they had to use up their last challenge, in order to protect their court record. Should they lose the case, and want to appeal on the grounds that a change of venue should have been granted, that an unbiased jury could not be found in Ada, then they had to use up all their challenges.
The attorneys looked from one face to the other in the jury box; they conferred; they looked again; finally they shrugged, agreeing.
They dismissed panelist number five: Shelley Johnson.
The young woman flushed deeply; stood; left the jury box.
“She was making eye contact with the district attorney, but not with anyone at our table,” Don Wyatt said later. “We had to choose someone. Who knows?”
Shelley Johnson, disappointed, went home to fix dinner. In her place a short, dark woman named Janet Williams was called. She answered to the satisfaction of both sides the routine questions: she had formed no opinion in the case; she knew none of the witnesses; none of her family was in jail.
There was no reason to excuse her for cause. At 4:12 P.M., Judge Powers asked those remaining in the jury box to raise their right hands, and he swore in the jury in the Haraway case, a day earlier than either side had expected.
In the spectator section, about fifteen panelists remained uncalled of the eighty-three that had appeared the day before. Two alternates were called, to sit with the jury, to vote only if a regular juror became incapacitated. The defense was permitted one peremptory challenge for each alternate seat; the attorneys liked both people who were called, but had to dismiss them both, to protect their record. Two more were called, seated, sworn in.
The jury was complete. It was composed of eight women and four men. Both alternates were men. The panel included school teachers, housewives, retired people, a worker at the cement plant.
The judge admonished them, as he would every night, not to discuss the case, not to read of it in the papers or watch the TV news. Then he sent them home. The presentation of evidence would begin in the morning.
As they left, several of the younger women smiled at one another, as if they had made new friends; as if they had passed some inspection, some test.
The library at Wyatt, Austin & Associates was lined with sets of lawbooks bound in deep blue, green, beige, and maroon. Filling most of the room was a conference table surrounded by leather chairs. That night, the members of Tommy Ward’s family were called into the library, one at a time, to prepare the testimony they would give.
Seated around the table were Wyatt, Austin, Winifred Harrell, Austin’s attractive young wife, Shawna, and the newest member of the firm, Bill Cathey. With each witness, Wyatt played himself, asking the questions he would ask at the trial. Leo Austin, tall, serious, played the district attorney, cross-examining the witnesses, giving them a taste of what they could expect in court.
For the most part, the lawyers felt the rehearsal was a disaster.
Kay was called first. She would testify as to how she had cut Tommy’s hair short, above his ears, the week before Denice Haraway disappeared, a week before she and Miz Ward went to Lawton to visit Melva. Young and pretty, she made a good appearance, was open and unhesitating in her replies; she did well. Joel was called next; his testimony would be peripheral; he did all right, once he got the hang of it. Then came Joice, the key alibi witness; and then her husband, Robert. Their story was basically the same, but it differed in many little details—enough that Bill Peterson might destroy them. With each new question and answer, the attorneys grew increasingly exasperated; repeatedly they had to warn the family not to volunteer information, to answer only the question that was asked.
Joice said she, Robert, and Tommy had been at a party at the Canadian River the night before the disappearance; that the next morning Tommy was hungover and feeling sick, and stayed in the house all day, and that she did the same. She said Robert left for work about 2:30. In the evening, she said, Willie Barnett dropped by, and started annoying the bird, and Tommy sent him home; then Jimmy came over, and he and Tommy quarreled about some money Jimmy said Tommy owed him; then he left. She went to bed about eleven, she said; Tommy had never left the house. About one in the morning, she said, she got up to use the bathroom, and there was no water. Robert came up and told her they had shut it off because a pipe was leaking under the house, and he and Tommy were fixing it. She went back to sleep.
Robert, questioned next, said he got home from his job as an ambulance driver at 11:20 that night, and found Tommy asleep on the sofa. He watched television, then heard water running. He checked all the faucets, then went outside; water was puddling from a leak under the house. He did not know how to turn the water off; he woke up Tommy, and Tommy turned it off. Together they spent several hours fixing the pipe, he said.
Most of the discrepancies between the two stories concerned the party the previous night. Wyatt told Robert he would be a strong witness if he and Joice got their memories together, but a disaster if they did not.
Miz Ward was next. She was shy, diffident, mumbling her answers stoically. That was not what the lawyers wanted; they wanted tears. “You know what you sound like?” Leo Austin chided her. “Your attitude is like, ‘Well, I’ve got eight. If I lose one, I’ll still have seven.’ You’ve got to show some emotion up there. Your boy is innocent and they want to kill him!”
Miz Ward mumbled that she would try.
The rehearsals had started at 6:30; now it was past 10:30. There was exasperation in the room. Finally they called in Tricia, in her eighth month, who had been waiting for four hours; Bud was home with the kids.
Tricia was nervous. But her sunny personality, her strong voice, changed the mood; it was as if a dark shade had been thrown up, letting in the light.
Her only testimony would be about the phone call she received from Tommy from the jail the morning after his arrest, in which he had told her, right then, that he had told the police a dream, and they had made him say it was real.
“What else did he tell you?” Wyatt asked.
“He said the police had called him all sorts of names.”
“What names?”
“Oh, you know…names.”
“What names?” Wyatt insisted.
Tricia flushed. She looked down at her hands, folded on her belly; then looked at Wyatt. “I can’t say them,” she said.
“You’ll have to say them,” Austin said. “We want you to say them.”
Tricia thought a moment. “Can I use initials?”
“Go ahead,” Wyatt said.
Tricia flushed again. “S.o.b. He told me they kept calling him an s.o.b.”
“Good,” Wyatt said. “Now say the words. What names did he say they called him?”
Tricia shook her head. “I can’t. I don’t even know if I can say them initials in the courtroom.”
They let it go, for now. Perhaps her obvious sincerity, her inability even to repeat a swearword, would impress the jury. Wyatt, sizing her up as the matriarch of the family, told her how badly most of the others had done. He told her that Joice and Robert had better get their stories together: not to lie, but to get their memories straight, and if they didn’t remember things, to just say they didn’t remember. “They better become good, strong witnesses,” he said, “or else they will inject a lethal poison into Tommy.”
Leo Austin, playing Bill Peterson, had asked each of them, “Wouldn’t you lie to save your brother?” All of them said, “No.” Wyatt told them that he might lie to save his brother’s life. “A better answer,” he suggested, “might be: ‘I would, or I might’—however they felt—‘but I don’t have to, because he didn’t do it! I’m telling the truth.’”
Now Wyatt said to Tricia, “I believe Tommy is innocent. It will be a grave injustice if they convict that boy. But they will, unless we have good witnesses. We can’t perform miracles for you. It has to come from the witness stand.”
Tricia asked if there would be time to do this again one night, after she talked to the others. Wyatt said it depended; if the state ended in two or three days, there would not be time; if the state’s case went into the following week, then perhaps they could.
It was after eleven when they piled into their cars and went home. The lawyers were shaken. They knew these people had not been to college, did not understand the law, had never been in a situation such as this before. Still…
Only Winifred Harrell, driving her van home to Kings Road, felt good. She had never met the family before; their names had been abstractions on subpoenas, voices on the telephone. But she had been impressed, this evening, with Joel; she had been even more impressed with Tricia. No one growing up in that family, Winifred felt, could do what Tommy had said on the tape that he had done. She had begun by believing without doubt that he was guilty; Richard Kerner’s scenarios had raised doubts. Now her conversion was complete. She was convinced that Tommy Ward was innocent.
DAY THREE
The spectator section in the courtroom filled slowly. The Ward family occupied most of one row: Miz Ward, Tricia, Kay, Melvin, Robert, Joel. For a time, Dr. Jack Haraway, Steve’s father, was sitting beside Joel Ward; neither seemed to know who the other was. With the dentist was his wife, Betty, their daughter, Cinda.
Ward and Fontenot entered with their attorneys—Ward in blue, Fontenot in rust. Tommy hugged Miz Ward, who was wearing a full pink dress. Mrs. Haraway watched, expressionless. Dr. Haraway turned his head. All the other Wards hugged Tommy, patted him on the back.
The attorneys for both sides left the courtroom, disappeared into the judge’s chambers. Ward and Fontenot were alone in the front part of the courtroom. No guards were visible.
“If they try to escape,” a girl reporter for a local radio station said, “I’ll take my shoes off and run after them, and kill them myself.”
Ten minutes passed, twenty, thirty. A copper-colored water pitcher on the judge’s bench reflected the recessed ceiling lights in an abstract pattern. The press, the spectators, began to wonder: was a plea bargain being worked out?
“They’d have to pass it along to the defendants,” said Bill Willett, Don Wyatt’s aide, who was standing in the doorway.
Would Wyatt take it, if one was being offered?
“Last night was scary,” Willett said. “And the investigator’s material is so convoluted…”
Nearly an hour passed before the attorneys returned, before Judge Powers took the bench. There had been no talk of a plea bargain by either side. What had occurred amounted to two small victories for the defense.
In the first, Wyatt had learned that state witnesses planned to say Tommy Ward had threatened them, or talked of robbery, on other occasions. Wyatt was convinced these incidents had been invented. His legal arguments were that any such testimony was irrelevant to the charges before the court. Judge Powers agreed; those witnesses would not be allowed to testify.
In the second, Bill Peterson was angry. The D.A. said he had learned that one of the jurors had lied to the court the previous afternoon. He was referring to the last juror seated, Janet Williams. Mrs. Williams had lied, he said, when she told the court she had no family members in jail; in fact, her husband was in jail right now, the D.A. said. He wanted Mrs. Williams dismissed from the jury.
The judge had Mrs. Williams brought from the jury room to his chambers. Mrs. Williams said she did not have a husband—that she had been divorced, in another county.
Peterson, nonplussed, still wanted her dismissed from the jury. Judge Powers ruled that Mrs. Williams had told no lies; that she had no family in jail; he said he thought she would make a fine juror.
The defense attorneys were gleeful. They had a woman on the jury who might be expected to be sympathetic to the plight of the defendants, who might be open to an argument of police coercion; and the D.A. had just attacked her truthfulness.
Peterson was glum as he returned to the prosecution table.
The witness rule was invoked: all those in the courtroom who had been subpoenaed to testify in the trial had to leave. Slowly, all of the Wards except Melvin filed out. For the rest of the trial, Melvin, who had been away in the Navy at the time of the alleged crime, would be the family’s eyes and ears in the courtroom, reporting each evening what had transpired that day.
At 10:20 A.M., the district attorney moved to a lectern and read the formal charges: of robbery, kidnapping, and murder in the first degree. In brief opening remarks, he said that the state would prove the defendants were guilty on all three counts. And he summarized the evidence that would be introduced.
George Butner, in his opening statement, said the defense would show that the suspects had been pressured by the police into making false confessions; that outside of these forced confessions, there was no evidence whatever in the case.
Don Wyatt reserved his opening remarks until the defense’s turn to present its case.
Then the first witness was called.
His name was Wayne Girdner. He had not testified at the preliminary hearing. An insurance man in Tulsa, he had written the insurance on Joel Ward’s modern pickup truck. He testified that a few years back, Joel had come to him with a gray-primered pickup, a 1968 to 1973 model. The implication was that this could have been the truck used in the abduction of Denice Haraway, and that Tommy Ward could have had access to it.
On cross-examination, it was established that Girdner had never insured this truck, had no application forms or any other written documentation that Joel had brought him such a truck.
The second witness, a tall, slim, elderly man named J. T. McConnell, was a neighbor of the Wards on Ashland Avenue. He repeated his testimony from the hearing, saying he had often seen Tommy Ward riding up and down the street in an old gray pickup.
Under cross-examination, he said he’d seen Odell Titsworth in the pickup, driving it. And it could have been a late 1950s model, not an early 1970s one, as he had said at the preliminary.
Sticking to his plan of sequential presentation, the D.A. then called three members of Ada’s running crowd, who testified that Tommy Ward had long hair at the time of Denice Haraway’s disappearance, and that he once owned a knife. Under cross-examination, their memories became hazy about the dates, just as they had at the preliminary. The defense suggested one witness had been let out of a prison term early in return for his testimony in this case.
During the lunch break, from 12:10 to 1:30, three lady jurors ate at the Feed Store. So did Dennis Smith, Mike Baskin, Gary Rogers, and Bill Peterson, at a table out of their earshot, about thirty feet away.
The jurors were not discussing the case; the judge had warned them not to. Their talk touched on the religious.
“Nobody’s perfect,” one juror said. “There’s only one perfect person.”
“And He created us,” the second juror said. “And look at the mess we’re in.”
In the afternoon, the testimony began to focus on Denice Haraway. Her faculty adviser at ECU, Norman Frame, testified about what a mature, interested student she had been. Her student-teaching mentor, Donna Howard, talked about how Denice was planning for the future, about how she had taken home workbooks that weekend.
Of each of these, the defense asked only one question: Did Denice Haraway smoke? Norman Frame said he didn’t know. Mrs. Howard said she had never seen Denice smoke.
A recess. Steve Haraway stood in the corridor, tall, slim, wearing a Navy blue blazer, dark pants, a white shirt, a dotted tie. “Just my luck. I’m next and they recess,” he said.
Don Wyatt hailed a journalist. “Have they thrown anything at the wall yet that stuck?” he asked. He obviously felt that they hadn’t, that the defense was doing well.
Bill Peterson, passing nearby, heard the loud question and frowned.
Steve Haraway took the stand looking calm, composed. He gave his name, and then further identified himself: “I was married to Denice Haraway.”
He told of their plans for the future; of their normal activities that day; of being called to the store that night, after his wife was discovered missing.
He said he had not seen or heard from her since.
Nothing was missing from their apartment that night, he said—no luggage, nothing. Only the clothes she had been wearing. She always wore jeans and tennis shoes to work, he said, and always took a gray zippered sweatshirt, because it was cold in the walk-in cooler. He did not know what blouse she wore that day, he said, because he was away at work when she left for her job at McAnally’s.
He had talked to her on the phone about 7:30 that night, he said. Nothing had seemed wrong.
The purse found at McAnally’s was entered into evidence. “That was my wife’s,” Steve said.
Under cross-examination, he said his wife did not smoke.
Soon after, Denice Haraway’s sister, Janet Weldon, took the stand. She spoke of making plans with Denice to go shopping the following week, of speaking to her on the phone between 6:30 and 7, and nothing being wrong.
Much of her testimony centered on the blouse Denice allegedly had been wearing when she disappeared. Janet said she had gone through Denice’s clothing within a few days; the blouse with the little blue flowers was missing; she was familiar with the blouse because it had been hers; she had given it to Denice when she, Janet, had begun to put on weight. She said she was contacted by the police about a week after October 18—a week after the arrests—and that she had told them then about the blouse. She said she had not told the police which blouse was missing earlier because she had not gone through all of Denice’s clothing, and could not be sure it was missing, or that it was the only one missing.
“Would you lie?” Don Wyatt asked on cross-examination.
“No, I wouldn’t.”
“Would you shade your opinion?”
“No, I wouldn’t.”
George Butner was harsher. He reviewed Ms. Weldon’s testimony that she had gone through Denice’s closet shortly after she disappeared, but did not tell the police about the blouse she thought she’d been wearing until six months later, until after the arrests. As Butner repeated this, he looked incredulous, for the benefit of the jury.
Court was recessed until 9 A.M. Bill Peterson looked at Butner with hateful eyes for this questioning of Denice Haraway’s sister.
Earlier that day, as the opening arguments were being made before the jury, Richard Kerner was knocking on the door of a trailer in Del City, adjacent to Oklahoma City. It was the residence of Jannette Blood Roberts. He had come to serve her with a subpoena for the defense.
Kerner had been serving many subpoenas; he’d been unable to find an address for Mrs. Roberts until today. He did not know what she had to do with the case.
When he explained who he was, Jannette led him into the living room. Kerner began to chat, as he liked to do with potential witnesses, just to see where it might lead. Jannette told him that Karl was living with her and her husband and family at the time of the crime; that Tommy stayed over a lot; that Tommy was living with them when he was arrested.
Kerner had noticed a pickup parked outside. It was nothing like the one described at the scene of the crime. Yes, sometimes she had let Tommy and Karl borrow it, she said.
Then why would they need some old gray one? Kerner asked.
“They wouldn’t,” Mrs. Roberts said. “And besides that, they both had short hair at the time.”
“Short hair?” Kerner asked. “Are you sure?”
“Karl went to work for Wendy’s, and they made him cut his hair. And Tommy was looking for a job, so he’d cut his hair, too.”
God damn, Kerner thought, excited. And said, “I wish you had pictures of them, or something.”
Suddenly, Jannette Roberts, too, grew excited. “I do have pictures! We took pictures on Easter!”
She hurried down a narrow hallway in the trailer, knelt on the floor. Against the wall just inside the bedroom was an old oak trunk that was one of her favorite possessions, in which she kept her other favorite possessions: her wedding dress, pictures she had not put in her photo albums; she was an inveterate picture-taker with her Polaroid camera. For several minutes Kerner stood in the hallway, watching, as Jannette’s hands rummaged through the trunk. Finally she came up with a bunch of snapshots. They went back into the living room and looked at them.
“Holy shit!” the investigator said.
“What?” Jannette asked.
“Wait till they see these!”
One of the Polaroid snapshots showed Jannette, wearing a housecoat and pajamas and slippers, seated in the foreground on a sofa. Visible in the dark background, seated at the other end of the sofa, was Tommy Ward. His hair was short, above his ears. Written in blue ballpoint ink in the white bottom margin of the picture was a date: “4–22–84.” That was six days before Denice Haraway disappeared.
They’ll argue that the picture was dated recently, Kerner thought; was taken some other time. But he had just seen Jannette take them from the trunk with the dates already on them; she had not known he was coming; and it was he who had brought up the subject of pictures; she had not volunteered them.
He looked at another one: a picture of a little girl posing cutely beside a large Easter basket.
“Who’s that?” Kerner asked.
“My daughter.”
The picture had the same date written on it. In the corner of the picture, Jannette’s foot was visible; she was wearing the same robe, pajamas, slippers, as in the picture with Tommy in it. And the Easter basket was not unwrapped.
Another set of pictures showed Karl Fontenot standing around at a party. His hair, too, was short. Those pictures were hand-dated “4–16–84”—twelve days before Denice Haraway disappeared.
Kerner gave Mrs. Roberts her subpoena; she let him take the photographs.
Late in the afternoon the investigator drove to Ada, the pictures in his briefcase; he was due at Wyatt’s office anyway, for a meeting.
The state’s case, having gone through a dress rehearsal at the preliminary hearing, was already largely worked out: a logical progression toward the playing of the tapes. There was little improvising to do at this point. The defense, however, was still only in rough outline. In Wyatt’s mind, it went like this:
1. Establish that the police had coerced the confessions.
2. Present the alibi witnesses, and perhaps Tommy himself.
3. Present Richard Kerner’s various scenarios, to further establish reasonable doubt; to suggest alternatives to the guilt of Ward and Fontenot.
The details still had to be pondered. The lawyers bought fast-food snacks after court, and went to Wyatt’s office to kick things around. First they reviewed how the first day of testimony had gone. George Butner said he thought the D.A. had erred in not starting off with testimony about the disappearance. “He should have had Steve Haraway shed a tear or two,” Butner said. “If only we could put a bomb under those tapes, we’d have no problem.”
Wyatt, Butner, Austin sat around the conference table in the library. On the green-slate blackboard were the names of all the possible suspects they could raise; and the words “Elmore City”; and the names of all the people who had given Kerner taped statements saying the composite drawings were others besides Ward and Fontenot. There were a lot of names; Wyatt was thinking they had to call all of them, lay out all the scenarios; Butner wanted to streamline the presentation as much as possible, so as not to confuse the jury.
As they talked, Richard Kerner arrived. He entered the library, opened his briefcase, wordlessly handed the batch of snapshots to Don Wyatt. The lawyer looked at them, one by one. Then he looked up at Kerner.
“Where the hell did you get these?”
“Jannette Blood Roberts,” Kerner said with satisfaction.
“Where did she get them?”
“She took them herself. Except for the ones she’s in, of course.”
Wyatt spread the pictures out on the table for the others to see. The one with Ward in the background they had to pick up, look at closely, to make out; but there he was.
“Is there a date on those?” Butner asked.
“Easter Sunday,” Kerner said. “A week before the disappearance.”
“That’s hand-written,” Butner said. “Is there a developing date or something?”
They examined the pictures. They were Polaroids, therefore undated. Wyatt turned them over, looked at the back.
“Doesn’t every roll of film have a different number?”
He looked carefully. The pictures of Karl, hand-dated April 16, had one number. Those of Tommy, dated April 22, had another number. But the one with Tommy, and the one of the little girl with the Easter basket, had the same number; they had been taken with the same roll of film.
“The basket is still wrapped,” Kerner said. “What kid doesn’t open their Easter basket on Easter Sunday?”
Don Wyatt shook his head, as if he could hardly believe this new evidence.
“She’s under subpoena?” he asked.
“As of today,” Kerner said.
The mood in the room became jocular as they looked at the pictures again and again. Finally they put them away, turned to the scenarios on the blackboard. For several hours they debated which witnesses to call, in what order, the easiest way to get in testimony about Rogers and Sparcino, Larry Jett, Shelton and Hawkins, Elmore City. By late in the evening they came to agree with Butner. They would not call all those people who had identified the composite drawings; instead they would simply put Kerner himself on the stand, and let him lay out the scenarios.
“How you going to get that admitted?” asked Leo Austin, a former judge. “Everything somebody told Richard is hearsay.”
They debated that for a while. Butner had an idea: “What if Richard says, ‘Then my investigation led me here. Then my investigation led me there’?”
“I don’t know,” Austin said. “The judge might allow it that way. But Peterson will be jumping all over him, screaming ‘hearsay.’ I’d say it’s chancy—but it might work.”
By the time they agreed on strategy the dark wood conference table was a messy litter of empty cans of New Coke, Cherry Coke, Diet Slice. It was late in the evening. In another part of the building, Odell Titsworth was waiting to be interviewed about the testimony he would give for the defense; so, too, was his mother. As Marie Titsworth waited, she vacuumed all the offices.
With the trial on, the case was back on the front page of the newspaper, was the lead item on the KTEN newscasts each night, was once more the talk of the town. Over a breakfast of sausage and eggs, biscuits and gravy, coffee, two middle-aged men were discussing it at the Village Restaurant Thursday morning.
“They’re making a big deal they don’t got that body. If they was to get rid of the body, they wouldn’t bury it. They knew that area out by Reeves Packing Plant. They just cut her up in little pieces and put her in plastic bags and threw her in that acid pit. You know, they make dog food out of that. Somebody’s bought her and fed her to their dogs already.”
“It’s terrible sometimes. You know people did it, but the legal system, sometimes you can’t get into evidence what you know, and they get off.”
“But if they get off, somebody’ll probably take care of them anyway.”
“It really bothers me, what’s happenin’ to the world the last ten years. The Antichrist is here, and people don’t even know it. Ya know, anybody who doesn’t believe that Jesus Christ is the living Son of the living God is the Antichrist. Even the Jews.”
DAY FOUR
Steve Haraway’s testimony had been completed. But because the defense had subpoenaed him as well, he could not sit in the courtroom. His mother and father and sister would watch the proceedings each day, would tell him at night what each witness had said, just as Melvin was doing for the Wards. But sitting, waiting at his father’s house, was frustrating. On Thursday he went hunting coyotes.
In the courtroom, Pat Virgin of Purcell took the stand. She was Denice Haraway’s mother. She was shown Denice’s driver’s license, which had a picture on it. “That’s my daughter,” she said. She was fighting back tears as she sat on the witness chair, in a turquoise suit. “She was a very beautiful girl. Slim…She was in very good health as far as I knew…She seemed very happy.”
On the defense table, as she testified, was a large brown paper sack, with bulges inside. The sack bore the marking “Dicus Discount Supermarkets.”
Mrs. Virgin stepped down. Soon after, a man named Richard Holkum took the stand. Now with the Alcohol Commission, he had been, at the time of the disappearance, an Ada city policeman. Holkum testified that at 7:45 P.M. on the night of April 28, 1984, he had stopped by McAnally’s, which was on his way home. He was off duty, in civilian clothes. Denice Haraway was the clerk at the time, he said, alive and well. She was wearing blue jeans, tennis shoes, a gray sweatshirt with a hood, and a light pastel blouse, lavender or blue, with a print or design on it.
“Okay,” Bill Peterson said. “And did you relay this information to the police?”
“Yes, sir,” Holkum said.
“Okay. Did you—was it anything that they already didn’t know?”
“At that time,” Holkum said, “I don’t know if they had the information already or not.”
There was little cross-examination. The defense attorneys were thrilled with Holkum’s testimony; they had not known of his existence. They had tried hard to get Janet Weldon to say she had told the police about the blue-flowered blouse soon after the disappearance; she had insisted she had not. Now an Ada police officer had admitted he’d seen the blouse. This would buttress their planned arguments that the police had fed the suspects the information on the tapes—including the critical, detailed description of the blouse.
It appeared to some that the district attorney had made the first blunder of the trial in calling Richard Holkum to the stand. Bill Peterson didn’t think so. He did not know if the defense attorneys knew of Holkum’s stop at McAnally’s; he could not risk their suddenly calling him to the stand later. That would look as if the prosecution had been trying to withhold evidence.
Karen Sue Wise, the clerk at J.P.’s, who had supplied most of the details for the composite drawings, was called next. She told of the two young men shooting pool in her store that night, acting weird. She identified Tommy Ward positively as one of them. She said she could not remember what the other one looked like. The truck outside she described as “mixed red primer and gray primer.” Asked why she remembered Ward, she said, “His eyes. He was staring at me, watching me. It scared me real bad.”
Ms. Wise was questioned and cross-examined at length. Don Wyatt showed her a composite drawing—the one he had drawn a moustache on. Then he showed her a photograph of Marty Ashley. He asked if this man had been in her store that night. She agreed that the pictures were similar. But she said, “I know him, and that is not the man.”
“She knows Ashley!” Wyatt whispered excitedly to George Butner. But later Ms. Wise amplified. She said she had gone to school with him, knew his appearance, but did not know his name.
She admitted seeing a man in the back of the courtroom during the preliminary hearing who looked familiar. “I recognized a familiar face,” she said. “I guess I was just scared.”
Cross-examined by Butner, she said the cowboy she had seen loitering one night outside her apartment “resembled” the man in her store on April 28. Butner placed his hands on Karl Fontenot’s shoulders as he sat at the defense table. “Was Karl in your establishment on April 28, 1984?” he asked.
Ms. Wise replied, “I don’t know.”
Bill Peterson, on redirect examination, referred to the man outside her apartment who had frightened her. “Was that the person in J.P.’s that night?” he asked.
Ms. Wise said, “I don’t know.”
As they broke for lunch, Tommy Ward felt things were going well. “I guess the Lord is starting to answer my prayers,” he said.
Bill Peterson was also feeling good. He asked a journalist, “Any stuff sticking today?”
Peterson called Jack Paschall, the ECU professor and part-time employee at J.P.’s, who had joined Karen Wise at the store that night. A dark, intense man with sideburns and a moustache, Paschall again identified Tommy Ward as one of the men in the store that night. He recalled attending a lineup on November 8, picking out number 6—which was Ward—and saying to Gary Rogers, “If it’s not him, it’s his twin brother”; then adding, “No, it’s just him.”
He had never identified the other man, he said, and still could not do so. But of Tommy Ward, “I’m sure within the limits of human frailty.”
Cross-examined, he told of two conversations with Richard Kerner, in which he had been shown photographs of two different trucks. He said he could not rule out either, that some of the details he recalled about the truck could be wrong.
Wyatt showed him a Polaroid picture the police had taken of Ward when they first questioned him on Tuesday, May 1, three days after the disappearance; his hair was very short. Wyatt noted that the disappearance had occurred on a Saturday night, and that Ada’s barbershops were closed on Sundays and Mondays. He asked if Paschall would stick to his identification of Tommy Ward even if it was proved that his hair had been short on April 28. Paschall said he would stick to his identification, even then.
On redirect, Assistant D.A. Chris Ross observed that Ada’s barbershops are open on Tuesdays.
The next witness was Jim Moyer, the gas station attendant who said he had stopped by McAnally’s for cigarettes about 7:30 P.M. and had seen two men acting suspicious there. He said he was sure one of them had been Ward; he was not sure about Fontenot. He recalled on cross-examination the man in the back of the courtroom at the preliminary hearing, who looked like the man in the store with Ward.
Wyatt asked if Moyer recalled telling Richard Kerner, “I may be wrong. I may be helping the wrong side here.” And he introduced the tape recording, which had been made without Moyer’s knowledge; this was the first he knew of its existence. Judge Powers allowed the tape to be played for the jury. They heard Kerner ask, “You are reasonably sure the guy at the preliminary with ‘Lurch’ on his belt is the second man and he knows Tommy and spoke to him at the preliminary?” And they heard Moyer answer, “Right.”
“I wasn’t sure about Fontenot,” Moyer said after the tape had concluded. He told of trying to reach the D.A. all summer to tell him this, without success. He said that during the preliminary hearing in the winter he had told a detective about “Lurch,” but that no one ever came to ask him more about it.
Of the truck he had seen outside, he said he’d seen no one else in it, and that there was nothing unusual about it—it had a tailgate.
The next witnesses, Lenny Timmons and David Timmons, told in detail about driving up to McAnally’s and finding the clerk missing. They repeated that they had seen nothing unusual about the couple leaving. Lenny Timmons repeated about Ward that on a scale of one to ten, his certainty was a six. “It may or may not be the man,” he said. About the woman, he said, “Nothing was apparent to me that she was being forced.”
“Everything looked normal?” Wyatt asked.
“Yes.”
David Timmons said the man had his arm around the woman’s waist. He said when the pickup left, it went east, away from town. He, too, saw “nothing unusual” about the couple leaving.
All through the testimony the jurors watched the witnesses, and listened—except for one elderly man, juror number nine, who sometimes looked at the ceiling; and one young man, juror number one, who stared intently, with narrowed eyes, at Ward and Fontenot.
It was 6:15 when the judge recessed the proceedings until morning.
DAY FIVE
Gene Whelchel led off. He echoed the testimony of his nephews, the Timmons brothers, about how they had found the clerk missing from McAnally’s. He said he did not at first realize that the woman leaving was the clerk; but that later, when he looked at the driver’s license, he realized it was she.
Sergeant Harvey Phillips, the first officer on the scene, testified to what he found there. When he was through, Don Wyatt approached the lectern with a magazine in his hand. There was a hint of scorn in his voice as he asked, “Are you the same Harvey Wayne Phillips that was quoted in Startling Detective magazine?”
The officer said he had never talked to anyone from that magazine.
Wyatt for a moment looked puzzled, almost stunned. He had not known the author of the article had made up all those quotes. He hesitated, turned, walked back to the defense table. “Startling Detective!” he muttered under his breath, with disgust. He tossed the magazine onto the table and took his seat.
Two new witnesses, Arthur and Mary Scroggins, an elderly couple, testified. Arthur Scroggins said he was driving west on Richardson Loop, in the area of the Holiday Inn, on the night in question when, about nine o’clock, a gray-primer pickup passed them, going west, at a high rate of speed. Mary Scroggins said that as the truck sped by she noticed three people in the pickup, and that one had blond hair. She did not know if they were male or female, she said.
The manager and the owner of McAnally’s testified about Denice Haraway’s fine work habits, her reliability.
Then the courtroom was cleared. Bill Peterson was preparing to introduce the tape of Tommy Ward being questioned on October 12. But there was a place on the tape where Dennis Smith asked Ward if he would take a polygraph examination; and any reference in court to a lie-detector test could lead to a mistrial. Judge Powers wanted to view the tape alone before deciding what to do.
A video screen was set up in the courtroom. With the jurors already gone, the judge cleared out the spectators and the press.
In the corridor, a lady reporter from a radio station looked over her notes, to phone in a report. She had developed her own shorthand; she did not like the defense attorneys, did not use their names in her notes. Instead she referred to them as “HD 1” and “HD 2.” “HD” stood for “Hot Dog.”
Detective Captain Dennis Smith was not permitted in the courtroom, because he would be a witness. He spent much of the time standing in the corridor, finding out during recesses what was happening inside. Now, with the judge busy viewing the tape, Smith went to the Feed Store for some iced tea. He knew the tape was more than ninety minutes long; he’d been there.
As he sipped his tea, a lawyer not involved in the case came in. He razzed the detective about the lady on the jury whose ex-husband was in jail. “The most important thing in any case is who you got in that box,” the lawyer said.
Smith was thinking not of the jury box, but of the bag on the defense table. He was wondering what was in it, for Don Wyatt to bring it in and let it sit there every day. He was pretty sure he could guess—the bones and the skull they had brought to Tommy Ward’s cell. He was not overly concerned. He was hoping the incident might even prove useful with the jury—by showing that the police had done everything they could to recover the body for the family.
The lawyer, sitting at another table, came over again. He told the detective of a T-shirt he had seen, that he hoped to get. The T-shirt said, “Innocent Until Proven Broke.”
The October 12 tape was the one in which, for almost two hours, Tommy Ward declared his innocence to Detectives Smith and Baskin, while Smith was holding in front of him a large picture of Denice Haraway. After viewing the tape, Judge Powers decided to admit it as evidence, with the reference to the lie-detector test excised. The defense attorneys were joking happily as they emerged from the courtroom and crowded into the elevator.
“We’re on a roll!” George Butner said.
“We sure are,” Wyatt agreed. “That’s the best evidence we’ve got!”
So why was Peterson entering it?
“That’s what the judge said,” Don Wyatt noted. “The judge said, ‘Why do you want to enter this?’ Peterson said, ‘I want to enter it.’ Heck, we’re not objecting!”
The district attorney was sticking to his formula of laying out all the evidence. If he did not enter this tape, he reasoned, the defense undoubtedly would. And he wanted the confession tapes to be the ones the jury saw last.
The afternoon session began with Jimmy C. Lyon, a tall, heavyset, balding man, a truck driver. Asked his relation to Donna Denice Haraway, he said, “I’m her daddy.”
He said he had not seen or heard from her since April 28, 1984.
Her brother, Ronald Lyon, wiped a tear from under his eyeglasses as he said the same thing.
One by one after that, Bill Peterson called twenty-one witnesses, each of whom spent less than a minute in the witness chair. They were friends of Denice Haraway, cousins, aunts, uncles, great-aunts, second cousins. The D.A. asked each the same question: Had they seen or heard from Denice since April 28, 1984. Each of them answered, “No,” and stepped down.
Most of the witnesses were expressionless as they answered. The jurors were impassive as they watched.
The next witness, Lydia Kimball, an OSBI criminal intelligence analyst, testified about the extensive checking she had done in the past sixteen months to locate Denice Haraway, dead or alive: driver records in all fifty states, hospital records, prison records, all unidentified bodies in the country for the past two years. All had been unsuccessful.
“Then you have no proof that she is dead or alive,” Wyatt observed on cross-examination. “Are you still looking for her right up till today in all fifty states?”
“Yes, I am,” Ms. Kimball said.
Bill Peterson asked if she was still looking for Denice Haraway’s remains as well.
“Yes,” she said.
Between witnesses, Tommy Ward looked at the spectator section. He smiled at a blond woman seated halfway back. The woman mouthed with her lips three words to him, “I love you.”
Tommy smiled.
The woman was Charlene, who had met Tommy in jail, who had written to Tricia saying she and Tommy planned to marry after the trial.
The state’s forty-ninth witness was Detective Mike Baskin. He recounted his actions as the first detective to arrive at McAnally’s. He described his search for Denice Haraway that night, and the countywide search held the next day. Then he arrived at May 1, 1984—the day that Tommy Ward was first questioned. The attorneys for both sides approached the bench, as if on some prearranged schedule. After a brief conference, the judge again ordered the jury taken from the courtroom. The critical moment of the trial, in terms of the law, was at hand. The defense would now move that no statements made by the defendants could be used, because the state had not proved the corpus delicti—that a crime had been committed, and that the defendants had had something to do with it.
Leo Austin, the former judge, Wyatt’s partner, approached the lectern. He made his argument facing Judge Powers, the jury box empty behind him. He was well aware of its importance. If the judge ruled that the corpus delicti had not been proved, he would have to dismiss the charges. And the boys could never be tried again, even if physical evidence were found against them—because that would be double jeopardy.
Austin cited relevant portions of the law involving corpus delicti. “The way I read that, your honor,” he said, “is that the state has to prove before the confessions and admissions can be entered, can be considered by this court and by this jury, that the state must prove that a death has occurred, and that that death was caused by the conduct of another person. The court has heard the evidence. There’s only a few witnesses that can testify as to any conduct on behalf of these defendants. We have before us evidence as to the conduct and so forth of Ms. Haraway. We have before us two witnesses—Timmons witnesses—who are not positive in their identifications of these defendants, especially defendant Fontenot, only defendant Ward. On the basis of a zero to ten, Lenny Timmons gave us a six. The other witnesses—Ms. Wise, Moyer—have not connected the defendants with this store but with another store. They agree it’s on the same night, but I ask the court, is that sufficient to show that these defendants were involved with this crime?
“Even assuming for one moment that the state has presented evidence beyond a reasonable doubt to show that there was the death of a person in this case, I ask the court to search the evidence—even circumstantial evidence—and find where there is any evidence showing that these two individuals were involved in the conduct—the cause of death—of Ms. Haraway, even assuming that there was a death. The instruction is clear, your honor. It says, ‘Such proof must consist of evidence which is wholly independent of any confession or admission made by the defendants.’
“Your honor, we talked to the jury in this case, and told them that they were going to have to search their souls. This is the kind of case where we feel strongly that the state has not proven a corpus delicti. They have not proven the death. There is no body. I realize that they can show it circumstantially, but they have not proven it beyond a reasonable doubt. Even assuming for one moment that they have proved that, I ask the court to search the record and find that these two individuals caused the death. It says, ‘And the fact that her death was caused by the conduct of another person.’ I respond to the argument of the state.”
Austin left the lectern. George Butner adopted his argument on behalf of Karl Fontenot.
“Court’s going to overrule the motion,” Judge Powers said immediately. “I think there is sufficient circumstantial evidence by which the jury can find the corpus delicti, and I will overrule the objection at this time.”
Bill Peterson, at the prosecution table, nodded. It was as if a weight had been lifted from his chest. A feeling of serenity flooded through him. The tapes would be admitted as evidence—all of them. He felt confident now that he would win.
Judge Powers would say, after the trial, that the ruling had been, in his own mind, “a close call.” But if he had, indeed, agonized over the issue, he had made up his mind before Austin presented his arguments. Austin said later that day, “Before I started, the judge said, ‘Let’s get the corpus delicti argument out of the way.’ That sort of takes the enthusiasm out of your presentation.”
The jury was returned to the courtroom. Mike Baskin resumed the stand. He said he had read Tommy Ward his Miranda warnings before questioning him on May 1. Asked if Ward had understood his rights, Baskin said, “I can’t remember the exact reply, but it would have had to be affirmative or there would have been no interview.”
He said Ward on May 1 had short hair that was sticking up in the back, with gaps. “It didn’t look like too good of a haircut.” He said Ward had small scratches on his right hand.
The questioning leaped to October 12, to the interview with Ward in the basement of Norman police headquarters. Baskin told how Ward had given a different story that night from the one he had on May 1 about what he’d been doing the night of the disappearance. He said that the ensuing questioning was not intense, that Ward had not been threatened in any way.
It was late Friday afternoon. There would be no time to show the tape that day. The trial was recessed till Monday. The attorneys from both sides, along with Dennis Smith, went into the district attorney’s office, to edit the tape; to excise the part in which Ward was asked to take a polygraph and agreed to do so. Judge Powers drove home to Chandler, to his wife and his own bed, for the weekend.
The county fair was in town at the old rodeo grounds. There were rides, food booths, exhibits. An intermittent drizzle was falling, but Bud and Tricia wanted to get out of the house that night to get their minds off the trial. They took Rhonda, Buddy, and Laura Sue to the fairgrounds, to walk around.
Melvin and Miz Ward stayed home in the house on Ninth Street. In early evening, the telephone rang. Melvin answered it. The woman calling identified herself as Peggy Lurch.
She said she was the wife of Jason Lurch. She said that police investigators had come to their house that day; they had told her husband they wanted him in court Monday morning. Peggy was a friend of Joice, she said; she thought the family should know what was going on. Jason might call later, she said.
When Melvin hung up, he told Miz Ward; she called Don Wyatt at home. Wyatt asked her what she knew about Lurch. She said that Jason knew Tommy. At the preliminary hearing, she said, he had come up to her during a recess and told her, “I know Tommy didn’t do it.”
“What did you think he meant by that?” the lawyer asked.
“I just thought he was being nice,” Miz Ward said. “He knew Tommy, and he knew he wouldn’t do something like that.”
Wyatt kept his own thoughts to himself: perhaps Lurch knew Tommy didn’t do it, because he knew who did; perhaps because he, Lurch, had done it! Wise and Moyer thought they had seen him that night…
“Tell him I’d like to meet with him in my office,” Wyatt said. “Sunday. At three o’clock.”
When Bud and Tricia got home from the fair with the kids, they were told about the call. Soon after, the phone rang. Bud answered. It was Jason Lurch.
Lurch agreed to come to the Wolf house at 2 P.M. Sunday, and to go with them from there to the lawyer’s office.
But on Sunday, Jason Lurch didn’t show.