18
FALL PARTNERS
Donald Powers removed his black judicial robe. Beneath it he was wearing gray suit pants, a white shirt, a tie; the jacket of his suit hung on a hanger, on a coatrack. The judge was standing, after a long day of sitting at the bench. A clerk of the court came into the chambers, handed him a batch of legal papers to sign, to formally conclude the trial. The judge remained standing as he glanced through each paper, set it on a table, leaned over, and signed it. As he did, he discussed the trial with a visiting journalist.
It was, he said, the most unusual case he had ever encountered. “The state spent most of its time proving parts of the confessions weren’t true. That was certainly unusual.”
He was not, however, surprised by the jury’s verdict.
He had once before, in 1967, imposed the death penalty on a defendant; that had later been commuted to life; the man was still in the state prison at McAlester. In this case, as always in Oklahoma, the judge would have the discretion of following the jury’s recommendation, or of imposing a life sentence instead. Judge Powers indicated he had no inclination to overrule the jury.
The judge volunteered that on the most critical legal question of the case—whether the state had proved the corpus delicti prior to showing the confession tapes—his decision in favor of the state had been “a close call.”
“I think I made the right decision,” he said. “But I’m always glad for the appellate court to review my ruling. I certainly don’t want anyone to die for the wrong reason.”
If he imposed the death penalty, a review by the Court of Criminal Appeals would be practically automatic; all the attorneys would have to do was file a paper requesting one.
The judge completed his paperwork. He put on his jacket, crossed the courtroom, walked down the two flights of stairs. He would drive home to Chandler immediately. In the morning he hoped to get in some golf.
As the judge left, the courtroom was empty except for one person, sitting alone in the back, disconsolate. It was Mike Roberts, Tommy’s friend and former boss.
“The guys who did it were here,” Mike said. “In the courtroom. They heard the death penalty and got up and left.”
“What makes you think that?” he was asked.
“Joice said so. She was downstairs. She said they got into a gray-primer pickup, and drove away. I believe it. The way this town is…”
His words trailed off, into silence.
Downstairs, in the first-floor lobby, Steve Haraway was standing in front of a camera and floodlights, being interviewed by the girls from KTEN. It was the first formal interview he had granted since the disappearance of his wife, seventeen months before. He said he wanted to thank the police and the district attorney’s office for all the work they had done on the case.
“With these people at the helm,” Steve said, “the people of Ada should feel good.”
Most of the Ward family went to Tulsa that night, to stay at Joel’s place; there would be no spiriting Tommy out of town, as they had hoped. They left Tricia and Bud alone in Ada with their children and their grief.
Tricia gathered the children around: Rhonda, Buddy, Laura Sue. She told them that whatever they might hear in school or in the streets the next few days, nothing had been decided about Tommy; that nothing would be decided for a long time.
She reasoned that this was not a lie; nothing would be decided until all the appeals ran out.
C.L. and Maxine came over. They brought white bread and bologna for sandwiches, and soda pop. While the grandparents babysat, Bud and Tricia went to see the principal of Rhonda’s school. They were thinking of transferring Rhonda to a school out in the country, they told him, where her relationship to Tommy would not be known.
The principal advised against it. Word would spread. In a new school, anything could happen. Here he would take control of the situation. He guaranteed it.
The next day, Tricia kept the kids home from school. The principal addressed the students. He told them that anyone who said a word to Rhonda Wolf about her uncle Tommy would have to write a 500-word report, and would be kept inside during recess for a week.
The threat proved effective. When the kids returned to school the following day, no one said a word about the case.
The day after the trial, Bill Peterson went out of town. His district-attorney district included two neighboring counties, Seminole and Hughes; his work in those counties needed attention.
Chris Ross sat in his own office, his feet up on his desk, relaxing. Gary Rogers stopped by to chat, in obvious good spirits. He asked if the D.A.’s office would still trade a life sentence in return for Denice Haraway’s body. Ross said that would be up to the Haraway family; that if such an offer were made by the defendants, he thought the family would agree.
The verdicts and the death penalty led the TV and radio newscasts. On Thursday afternoon the headline crossed the entire front page of the Ada News: “Jury issues sentence of death.” Below it, for the first time in the case, there was a second, sidebar story. It detailed the testimony of Joanne Price: “Attack revealed in supplemental hearing.”
The reaction of the town to the verdict was divided. Most of those who had believed from the beginning that the suspects were guilty were reaffirmed in their beliefs. But some of these, having followed the trial, felt the state had not produced enough physical evidence to warrant a conviction. Among the poorer classes, there remained a widespread perception of a “railroad job” by the authorities.
The police and the district attorney’s office received congratulations. To Tricia, most people were kind; they told her they were shocked by the verdicts, and especially by the sentence, in a case where there was no body; where, some felt, Denice Haraway could still be alive. At the feed mill, Bud found a tense atmosphere; Joanne Price’s husband worked there.
Saturday night, Winifred Harrell went to the Oak Hills Country Club. A man she knew approached her. “I like Don Wyatt,” he said. “But I’m glad that he lost this one.” Winifred replied, “If I were you, I wouldn’t let your daughter out on the streets alone too soon.”
One of those who continued to believe the suspects were probably innocent was Barney Ward, who had refused to take the case in the early days. “I don’t think they did it,” the attorney said a few days after the trial. “Or if they did, they weren’t alone. I don’t know these boys, but they’re not what you’d call Rhodes scholars. I’m sure they’ve been offered a deal: turn in who did it or tell where the body is, and we’ll go easy. But they haven’t done that. I don’t think they’re that loyal. Or that smart. I don’t think they know where the body is. Of course, the terrible thing is, if they didn’t do it, whoever did is still out there.”
The jurors had returned to their homes, in Ada and the surrounding county—to their jobs, to their private lives. Some had been emotionally shaken by the ordeal; they preferred not to discuss it with anyone, even with friends. But there was one prominent exception—the jury foreman, Leslie Penn.
An employee of the Ideal Cement plant, Penn had told the other jurors when they began deliberations late that Tuesday night that he had served on a jury before, in a civil case. Because of that, and his take-charge attitude, he was elected foreman.
Early in the deliberations, several of the jurors were not convinced the state had proved its case; they had reasonable doubt. Leslie Penn believed the defendants were guilty. “They looked guilty,” he would tell someone later. He proceeded to act as “prosecutor” within the jury room. He saw it as his job to knock down any argument raised by other jurors in favor of the defense.
The most critical issue in the jury room was the Polaroid pictures showing the suspects with short hair. It was to examine these more closely that they requested a magnifying glass. Leslie Penn convinced the doubting jurors that the pictures were not honestly dated. His “proof” was that Jannette Roberts’s little girl was taller in some of the pictures than she was in others; and that therefore the pictures had not been taken the same year.
All of this Penn freely recounted to Don Wyatt’s aide, Bill Willett, a few days after the trial.
“The pictures were taken from different angles, different perspectives!” Wyatt said when he heard. But by then it was—in a phrase Wyatt fancied—“blood under the bridge.”
Nearly a year after the trial, most of the jurors still would be reluctant to discuss the case. One who did requested anonymity. According to this juror, when the jurors began deliberations they went around the table, each person stating his feelings, before any vote was taken. Most believed the suspects were guilty, but a few—“one or two or three”—had more of a problem than the others in saying so. This was also the case in the penalty phase. “It’s like when you have to hit someone,” the juror said. “It’s easier for some people to do than for others.”
The most convincing evidence for the state was the confession tapes, the juror said. Some jurors had “a little trouble” with the lack of identifications of Fontenot, but the tapes were so similar that they felt that both men were guilty. Of Jannette Roberts’s Polaroid pictures showing the suspects with short hair, the juror said: “The person’s background who put the dates, you know—I don’t know, it kind of looked fishy. There was different colors of ink. You know, it didn’t look right. Anybody can find pictures and write dates on ’em.”
The Sunday after the trial, as always, Tricia went to church. Throughout the service, she dreaded what was to follow; she dreaded going to see Tommy at the jail; it would be the first time since they led him from the courtroom, convicted of murder.
When she got there, she was amazed to find him in good spirits, joking, apparently recovered from the total devastation of the verdicts. She had not been sure if she would be able to take the strain. But Tommy was in such a good mood, it made Tricia feel better.
Outside the jail, Tricia had encountered Charlene, also waiting to see Tommy. They had gone in together. Charlene told Tommy she wanted to marry him, that she had already made plans. Tommy apparently had not been aware of this. He shook his head.
“It’s just not right,” he said. “Not until after I get out of this mess. I want a wife I can come home to. I believe we should know each other better than we do. I’m old-fashioned that way.”
Charlene, upset, left the visiting room. When she was gone, Tommy told Tricia, “She used to run with some bikers. She’s into drugs pretty bad. I told her that if she changed, perhaps we could get together. But she hasn’t changed enough.”
For a few days afterward, Charlene continued to write to Tommy every day. Tommy stopped answering. So Charlene stopped writing.
Soon after, Tricia heard rumors, in two different places, that Charlene had been a plant by the district attorney’s office; that she had been promised a clean criminal record if she could get Tommy to confess, if she could find out where the body was.
Tricia did not know what to believe. The whole time the jury was out, Charlene had stood alone in the courthouse, crying.
That first Sunday, C.L. and Maxine also found Tommy in a joking mood.
“It’s been a long time,” Tommy said to C.L., who had not been to visit for a while.
“How you been?” C.L. asked.
“I’ve been hiding out,” Tommy said, grinning.
They, too, were amazed at his sense of humor, his good spirits.
He told them as well that he had no plans to marry. “You have to know you have a life ahead of you before you do that,” he said.
He told them he was feeling calm. “If God wants to take me now,” he said, “I must be at peace with that. There must be a reason.”
At the conclusion of the preliminary hearing, back in February, Judge John Miller had dismissed one of the four charges against the defendants—the charge of rape—for lack of evidence. The district attorney had appealed the dismissal. Now, weeks after the trial ended, the Oklahoma Court of Criminal Appeals reinstated the charge.
Bill Peterson, having won convictions and death sentences on the murder charge, said he would not try the suspects for rape.
The ruling of the appeals court did not state that sufficient evidence existed to hold a trial for rape. It said, in a nonbinding opinion, that the decision of whether the state had proved the corpus delicti on any or all of the counts should have been made by the trial judge, in a pretrial hearing—before any evidence was presented to a jury.
Attorneys on both sides declined to speculate on what effect this opinion might have when the appeals in the case were heard.
The appeals could not be filed until the defense attorneys had transcripts of the trial. Under the law, court reporter Dawn DeVoe had until six months after the date of sentencing—until April 25, 1986—to complete the transcripts. She indicated that because of the length of the trial, it would take at least that long.
On October 7, in California, police arrested Don “Bubba” Hawkins and Dale Austin Shelton, both of Seminole, Oklahoma. They were the men wanted in the August 19 kidnapping of Linda Thompson from Oklahoma City. Because they came from nearby Seminole, had long criminal records, and were being sought for kidnapping, Richard Kerner had mentioned them at the trial as possible suspects in the Haraway case. The state had introduced testimony that Hawkins had been in jail the night Denice Haraway disappeared; it had not introduced such testimony about Shelton.
After a night in jail on the west coast, Don Hawkins confessed that he and Shelton had kidnapped Mrs. Thompson. He said they had raped her, had taken her to Seminole, and that he had drowned her in a lake there. And he told police where they could find her body—in a wooded area near the lake.
On October 11, following Hawkins’s directions, police in Seminole found the remains of a woman. This was reported in the Ada News. Reading of it, Tommy Ward’s family experienced a day of hope. If the body somehow turned out to be that of Denice Haraway, then Hawkins and Shelton had killed her.
The next day the remains in Seminole were positively identified as those of Linda Thompson. Hawkins and Shelton were charged with kidnapping and murder. They were brought back to Oklahoma to stand trial. They would later be convicted.
In the county jail, awaiting formal sentencing, Ward and Fontenot continued to insist on their innocence. Most of the other inmates believed them and had been surprised when they were convicted.
Karl read romance magazines, brought by the woman who had befriended him. Tommy and Karl read the Bible aloud to each other.
Fontenot had been afraid, after the conviction, that someone might come into the jail who was out to get them. But he and Ward were now locked in a cell together. That made Karl feel safe.
October 25 was exceptionally warm for autumn; the air conditioning in the courthouse was straining as Judge Powers arrived from Chandler and put on his black robe, as Jack and Betty Haraway took seats in the courtroom, as Tricia, Miz Ward, and others of the Wards arrived.
The defendants were led across from the jail, beneath the shade of the pecan tree, into the courthouse, and up in the elevator. They were wearing the same suits they had shared at the trial. In the courtroom, the defense attorneys and Bill Peterson were waiting.
The attorneys began by presenting motions for a new trial. One reason they cited was that testimony about rape in the confessions should not have been seen by the jury, because the men were not being tried for rape. Judge Powers overruled the motion; he said the rape references were so integrated into the confessions that they could not have been removed.
Another motion sought a new trial because a woman had been excluded from the jury solely because she was opposed to the death penalty. A federal district court had ruled recently that such disqualifications unfairly tainted juries in favor of the prosecution; the issue would soon go before the U.S. Supreme Court. Judge Powers overruled the motion.
The time had come for sentencing. It was one year and one week after the suspects were arrested. Judge Powers called Tommy Ward before the bench. He asked if Ward had anything he would like to say before being sentenced.
Tommy spoke four words, the only words he had spoken for the record during the long court proceedings: “I didn’t do it.”
The judge then followed all of the jury’s recommendations. He sentenced Tommy Ward to death.
He set the date of execution as January 21, 1986.
Tommy returned to his seat. He didn’t break down this time. Tricia, Miz Ward were crying. The Haraways showed no emotion.
Karl Fontenot was called before the bench. The judge asked if he would like to say anything before being sentenced.
“I would like the court to let me know when they find the people who committed these crimes,” Fontenot said.
Judge Powers was momentarily startled by the request. Then he replied, “It is the court’s opinion that they have found those who committed these crimes.”
He gave Fontenot the same sentences as Ward, the same date of execution: January 21, 1986.
The judge pointed out that there was an automatic appeals process in regard to the death penalty; that the sentence would not be carried out until the appeals were exhausted.
The men were entitled to spend ten more days in the Pontotoc County jail, the judge told them, if they so desired. Then they would be taken to the State Evaluation and Assessment Center at Lexington; and from there to Death Row at the Oklahoma State Penitentiary at McAlester. Fontenot waived the ten days, said he would rather go straight to Lexington. Tommy Ward chose to remain in Ada as long as possible.
The judge asked Fontenot if he had any money to hire a lawyer. “No, I never will,” Karl said.
Because Fontenot already had a court-appointed attorney, the judge said the appeals in his case would be handled by the Appellate Public Defender’s Office in Norman.
Tommy Ward was put on the witness stand by Don Wyatt. Asked if he had any money, Ward said no; he said that his family had hired Wyatt; that he himself had paid no part of the fee; he had no assets and no income, he said. Wyatt told the judge his own contract had been only through the trial. The judge assigned Ward’s appeals to the Appellate Public Defender’s Office as well. Upon filing the notices of appeal, the judge said, the attorneys would be relieved of their responsibility in the case, and the executions would be officially stayed.
Soon after, the defendants, handcuffed, were led across the lawn to the jail.
The Ada News did not publish on Saturdays. An account of the sentencing appeared on the front page of Sunday’s paper. On page two of the same edition was a paid advertisement, two columns wide and five inches high. It read:
THANK YOU
GOD BLESS YOU
We would like to thank the law enforcement officers, the fraternities, the Boy Scouts, all the friends and citizens of Ada who helped search for my daughter Donna Denice Haraway.
We appreciate so much the giving of your time and effort to find her.
A special thanks goes to District Attorney Peterson and Assistant District Attorney Ross, Detective Baskins [sic], Detective Smith, O.S.B.I. Agent Gary Rogers and all the police officers that worked on the case. Our family feels they did a splendid job together and we cannot praise them enough. We are so proud to know all the men that worked on the case. The caring and concern for my family will always be remembered.
I know I can never repay you men or thank you enough for all the help and the long hours you spent, but again I thank you from the bottom of my heart for everything.
I know that God will bless each and every one of you for everything you did.
Thank You All,
Pat Virgin, Mother
and the Family of
Donna Denice Haraway
Now, pending the outcome of the long appeals process, the town of Ada would try to put the Haraway case behind it.
Don Wyatt, for one, would not be sorry to see it go.
Of his fee of $25,000 for taking the case, Wyatt had received $6,000 in cash from the Ward family, most of it from Joel. The old Ward house on Ashland Avenue, deeded to him, turned out to be unfinished and a partial wreck inside; he sold the house and the land for $7,000. Of this $13,000 in income, he had spent about $8,500 for the preliminary hearing transcript, for Richard Kerner’s fees, and for the psychiatrist who examined Ward but did not testify. His net fee was thus about $4,500 for a year’s work by himself and his staff. It was more than George Butner would be paid as a court-appointed attorney—but not a lot more.
Wyatt also didn’t like to lose, even if he was well paid.
“I’ve figured out over the years,” he said a few days after the sentencing, “that you have to close the door and move on to the next one. If you spend your time second-guessing ’em, you just drive yourself crazy. This one’s been tried, and it’s been lost. I hope somebody on appeal can overturn it. I think it’s a good possibility. But it will be a long, drawn-out process.”
Wyatt could not know, then, that he wasn’t really free of the case yet.
On Thursday, November 7, at 6 A.M., Tricia entered Valley View Hospital. She was several days past her expected delivery date; her doctor had decided to induce labor.
At forty-nine minutes past noon, the baby was born. It was delivered by a nurse; the doctor arrived too late.
The nurse put the child on Tricia’s chest. Tricia counted the fingers and the toes. They were all there. It was a healthy baby girl.
Tricia had been afraid the stress about Tommy during her pregnancy might have affected the child’s formation.
They named her Yuvonda Maxine. The unusual first name Bud and Tricia had invented; the middle name was for Bud’s mother.
Little Buddy noted the date of birth and said Yuvonda would be a lucky little girl. “She was born on seven-eleven,” he said.
On Sunday, Tricia and the child went home from the hospital. Tommy, though more than ten days had passed since his sentencing, was still in the county jail. Bud sent cigars over with Miz Ward. Later he went himself, and pressed against the glass a Polaroid picture of the four kids.
“Awright!” Tommy said.
In the aftermath of the formal sentencing, Judge Powers signed the legal documents to be filed within the judicial system, to be part of the record of the case. Among the papers he signed was the formal notice of appeal on behalf of Karl Fontenot, filed by Fontenot’s attorney, George Butner. The paper would lead to an automatic stay of execution for Fontenot, and would transfer his representation from Butner to the appellate public defender’s office.
No notice of appeal and transfer was filed for Tommy Ward.
Don Wyatt apparently believed the state would take care of that, either through the D.A.’s office or the public defender’s office. The D.A. routinely assumed the defense attorney would do so, as was the common practice; it was not the D.A.’s task to look out for Tommy Ward.
Judge Powers did not notice that an appeal document for Ward, and a transfer of the case to the public defender’s office, were not among the papers he signed.
On Cherry Street, near Main, it was the hour of the pecan cracker. The nuts on the trees of Ada were a rich, ripe brown. They were falling by gravity’s pull, or in the November breeze, or being knocked down with poles. The old box springs, the veneer furniture, the glass objects that were sold there in the off-season were gone from in front of the small white building. The space was needed for parking, for stacking up the bags of pecans being ground inside. The iron gears meshed, day after day, week after week.
Tricia, feeding her newborn child, remembered sometimes the pecans they used to gather under the tree planted by her father, the day he married her mother, on the lawn of the house on Ashland Avenue. And a sadness, never far away, would enter the moment. This year, for the first time in her life, the house belonged to a stranger, and the tree and the pecans.
The town of McAlester is sixty miles northeast of Ada. Oklahoma’s maximum-security state prison was opened there in 1911. More cell blocks were added later. In the fall of 1985 it held just over 600 prisoners.
In mid-November, among the new files opened at the prison were ones marked 148909—Karl Fontenot, and 148915—Tommy Ward.
Death Row at the prison had been housed for years in E-block, an isolated section of the sprawling facility. Warden Gary Maynard was in the process of constructing a new Death Row in a more accessible area of F-block, which had been built in 1935 and renovated in 1981. The cell block was being converted from manual to electronic control. There would be forty-eight cells in the Death Row “run.” The admission of Ward and Fontenot brought the number of Death Row inmates to fifty-four. Some would have to room together.
Until the new section was completed, Ward and Fontenot were placed with the other inmates in the old Death Row in E-block. They were in separate cells, a few cells apart. Each cell was walled with concrete, about eight feet across and ten feet long. They had metal doors with narrow Plexiglas windows in them. At the rear of the cell, barred windows looked into the prison yard. Bunks and toilets were the only amenities.
Prisoners could receive mail, and one package a year, which could contain only sweat suits. Everything they needed had to be purchased at the prison canteen. This included soap and toothpaste. Money could be sent to them in the form of bank checks. These they could deposit at the canteen and draw against. Radios and TV sets were permitted in the cells. They had to be purchased at the canteen. The going rate for a small black-and-white television set was $92; the same set sold in stores outside the prison for about $69. Inmates who had no money, even for soap and toothpaste, had to do without.
The high cost of items at the canteen was one of many grievances among the inmates that were leading to an explosive atmosphere in the prison at the time that Ward and Fontenot were brought in.
The inmates could mail letters if they had the money for stamps. A plug-in telephone was available for them to make collect calls to the outside, when it was not in use by someone else. They could receive books, magazines, newspapers—but only if these were sent directly by the publishers. Such reading matter could not be sent by relatives or friends, for fear the pages might be pre-dipped in drugs, and the paper then chewed by the inmate.
Visiting was permitted Thursday through Sunday. The visitor and the inmate sat separated by a glass partition and spoke to each other through telephones. Each inmate was allowed a visitor list with ten names on it; the lists were completed only after slow paperwork, and the visitors were issued clearances. Each visitor could come twice a month.
The only exceptions were spouses and parents; in the cases of Tommy and Karl, that applied only to Miz Ward; she could visit twice a week, and the lengthy paperwork was waived.
The Death Row inmates were allowed to exercise twice a day, five inmates at a time, in narrow pens in the yard that reminded Tommy Ward of dog runs at a kennel. At the beginning, Tommy and Karl were in the same exercise group, along with three others. Of the others, one boasted he had killed thirteen people; one boasted he had killed five people; one said he had killed a cop. Tommy and Karl told their fellow inmates that they were innocent.
They told how their case had evolved, how no body had been found. They had given confessions to get “the laws” out of their faces, they said; but they hadn’t done it.
The other prisoners believed them, said they could take one look at Ward and Fontenot and know they hadn’t killed anyone; the other prisoners called them idiots for confessing to something they hadn’t done.
In the prison argot, because they had been convicted together, for the same crime, they were known as “fall partners.”
On his way to the prison from a brief stay at the Lexington evaluation center, Tommy Ward, reading his Bible, had thought he might like to become a preacher in the prison. Now he took one look at his fellow inmates—at how tough they were—and decided he’d better think about that for a while.
There was something about their eyes, he thought. You could look at their eyes and know that they had killed.
A few days after they arrived at McAlester, Tommy heard strange noises outside the window of his cell. His impulse was to look out the window into the prison yard. He took a few steps in that direction. Then he stopped. A voice inside him told him not to look out the window. He didn’t. He lay down on his bunk instead.
That night, for a short time, the guards thought there had been an escape. A prisoner was missing from his cell. The next morning, they found the missing inmate. He was dead, his body stuffed into a garbage can.
The noises Tommy heard had been the killing.
Tommy told of the incident to another inmate. He was assured he had done the right thing. If he had looked out the window, and been a witness to the killing, he was told, he would have been the next victim.
Every few days or weeks a tour of visiting dignitaries was escorted through the prison. As they moved through the corridor between the cells holding the Death Row inmates, a guard would tell what each man was in for. The first week, outside Tommy Ward’s cell, the guard said he’d been convicted of robbery, kidnapping, and murder. “Of course, they never found a body,” the guard said.
“No body?” a man in the tour said. “How did they ever prove murder? What was the corpus delicti?”
“They got all her relatives up there to say they hadn’t heard from her,” Tommy said.
“That doesn’t prove she’s dead,” the man said.
In Ada, the Haraway case faded slowly from conversation, except among those involved in the trial. The participants would be asked at social gatherings—more often now than before the trial—if they thought the defendants were guilty or innocent.
The harvesting of the pecans went on, and the cracking. Thanksgiving arrived. For the second year in a row, Bud and Tricia Wolf “won” the free-turkey lottery from their loan company.
Tommy called them frequently from McAlester. The calls had to be collect. They could not afford such calls, with maternity bills to pay off—but neither could they say no to a call from Death Row.
On December 2, they got a phone bill for about $150. They did not have the money, were about to lose their phone; a sympathetic friend helped them out. This allowed the calls to continue.
They could not yet visit Tommy; the paperwork had not been completed.
In California, collect calls from Karl Fontenot came to the homes of his brother, his sisters. They were not accepted.
Letters came to these same homes, from Karl Fontenot, No. 148909, P. O. Box 97, McAlester, Oklahoma 74502. They were not answered.
An inmate called Hank (name changed), who had killed several people, owned two decks of cards. One sunny day, in the exercise yard, he asked the others if they wanted to play poker. Karl declined, said he would watch. Tommy accepted, thinking it would help to pass the time.
Tommy and three others stood around a table in the yard. They played poker with a deck of blue cards. A deck of red cards was used for chips. After an hour or more, Tommy had a large pile of the “chip” cards in front of him. He was ahead about $1,800, but he was getting bored; he said he did not want to play anymore.
“You can’t quit when you’re ahead like that,” Hank said.
“Why not?” Tommy asked. “It ain’t real money.”
“Whattaya mean? Of course it’s real money. We owe you eighteen hundred bucks.”
“No, you don’t,” Tommy said. “It’s just a game. It ain’t for real.”
The others looked at one another, as if Tommy were insane. They insisted the stakes were real.
“I don’t want your money,” Tommy said. “Let’s just forget about it.”
According to the Bible, he felt, gambling was sinful.
The others told him they couldn’t forget about it; it would mess up their game; he had to keep playing.
“Okay,” Tommy said. “But I don’t want your money. I’m gonna start losing on purpose. You just tell me when we’re even, and then I’m gonna quit.”
The card game resumed. Tommy began to lose on purpose. He would raise on every card—and then fold his hand just before the last card was dealt. He did that hand after hand; the “money” in front of him dwindled.
The exercise period ended. They totaled up the cards. Hank told Tommy he owed $1,200.
“What are you talking about?” Tommy said. “You were supposed to tell me when I got down to even.”
“You owe me twelve hundred,” Hank said. “We’ll play more later.”
When the game resumed, Tommy began to win again. He cut his losses to $700. Then the game was over.
“I don’t got seven hundred dollars,” Tommy told Hank. “I don’t got nothin’.”
“Well, you better get it,” Hank said.
There was menace in his voice.
The next time Miz Ward came to visit, Tommy told her about the poker game, about the money he owed. She didn’t know where she could get that kind of money; no one in the family had that kind of money.
Tommy told Hank what his mother had said.
“Well, you better get it somewhere,” Hank warned.
Every day, Karl cleaned his cell thoroughly, to pass time. He still wrote letters to his family, even though they didn’t answer. He wrote letters to the young woman in Ada who had come to visit him during the trial, and to her mother. Both were sympathetic. They answered his letters, accepted phone calls. They sent small checks to both Tommy and Karl, to help with their canteen money for soap, for cigarettes.
In one letter he sent from his cell, Karl wrote: “We go out in the yard during the morning and evening. I don’t talk to the other guys. They are guilty of what they done. Me and Tommy are the only two who look like we came from a church somewhere and look innocent. All the other guys brag about killing people. I never speak over 10 words a day out there on the yard. The only way I figure I will make it here is be myself and stay with the Lord and His word. My feelings toward all this is I pray every night for these people who lied on me to get me in here on death row and the death penalty, to save themselves from sin. I wouldn’t ever want anyone to go to the burning pits of hell. I want to see them all in heaven some day.”
Solitary by nature, Karl began to brood a lot. The more he brooded, the more he focused on one thought. It had to do with Tommy. If Tommy hadn’t mentioned Karl’s name to the police, he thought, he, Karl, wouldn’t be in this jam. Sure, he had given the police a statement himself. But only after they picked him up. And they picked him up because Tommy had mentioned his name.
More and more the same thought entered Karl’s mind. If it weren’t for Tommy, he wouldn’t be in this jam; he wouldn’t be on Death Row; he wouldn’t even be in prison.
The more the thought came, the less he wanted to talk to Tommy. Sometimes he would chat with him in the yard. But more and more, he wanted nothing to do with him.
Early one evening, a week before Christmas, Tommy called Tricia. As always, she accepted the call. They talked for a time, and then Tricia looked at the clock. It was 6:25. Bud, who normally got off work at the feed mill at four, was working overtime, to help pay all the bills. She had to hang up, she told Tommy; she had to pick up Bud at 6:30.
They said goodbye. Tommy began to place another call with the operator, to his mother, in Tulsa. Before the call went through, the phone went dead.
Tommy went to the door of his cell, peered out the narrow window. A guard was double-locking the cell block.
That was the first he knew that anything was wrong.
There were noises outside. He went to the window, looked out. Helicopters were hovering overhead. Guards were crawling through the prison yard, carrying shotguns. Soon after, National Guardsmen were in the yard. There was a riot going on at McAlester.
For eighteen hours the prison was locked down. Inmates in two cell blocks had rioted, had stabbed three guards, had taken seven as hostages. The cell block housing the Death Row inmates was not involved: except for the extra locks, the canceling of exercise, of the telephone, of all privileges.
After a day and a half, the warden met with a committee of the inmates. The hostages were released unharmed. The warden told the press that many of the grievances of the inmates were justified.
The major grievance had been jobs; there were 612 inmates in the prison and 151 prison jobs.
One of the inmate negotiators, Jerry Kinney, told the press the uprising had not been planned, but that there had been idle talk of it for some time. “It’s been kind of a joke for a while,” he said. “People were walking around saying, ‘When’s it going to go? When’s it going to go?’”
On the morning of Friday, December 20, a guard came to Tommy Ward’s cell, and unlocked the door. He told Tommy he had to go to the warden’s office. Tommy asked, “What for?”
The guard said there was something wrong with Tommy’s papers; he didn’t have a lawyer. His stay of execution had not come through.
They walked through the corridors of the cell block. Tommy had been waiting day after day for some new lawyer to come see him; he’d been wondering why one hadn’t.
There were seven or eight people in the warden’s office, one of them a preacher. Warden Gary Maynard sat at one end of a long table. The others, some kind of prison officials, Tommy figured, sat along both sides. Tommy was told to sit at the other end, facing the warden. The guard remained in the room, standing near Tommy.
The warden had a sheaf of papers in front of him. He began to read aloud from them. He said that Tommy had been sentenced to be executed at 12:30 A.M. on Tuesday, January 21, 1986. No stay of execution had been received, he said. Therefore, the prison was required to proceed with plans for the execution.
Tommy began to shake.
A form had been mailed out to Tommy’s mother, the warden said, asking her what they wanted done with Tommy’s body following the execution. If they received no reply, then the body would be sent to her.
The shaking was hard to stop. Tommy didn’t understand how this could be happening.
Thirty days before execution, the warden continued, prisoners are transferred from Death Row to a thirty-day holding area near the execution chamber. The last five days prior to execution, the warden said, the prisoner could be visited only by immediate family, with a limit of five people. Tommy would have to give them, tomorrow, a list of the five people he wanted.
There was supposed to be a stay of execution in such cases, the warden said. But no such stay had been received. Until one was, plans for the execution would have to proceed.
“What about Fontenot?” the guard asked.
Fontenot has a lawyer, the warden replied. His notice of appeal had been filed. A stay of execution had been granted Fontenot by the Court of Criminal Appeals. But none of that had been done for Ward.
Tommy felt weak, sick. He asked if he could have the phone in his cell, to make some calls. The warden suggested that he call his mother, to warn her of the papers that would be arriving in the mail.
Tommy gathered his strength to stand. The warden gave him copies of the papers he’d been reading from. The guard led Tommy back through the corridors to his cell.
He sat on his bunk, shaking. He did not understand what had happened, what had gone wrong. All he knew was that they were planning to kill him in thirty days.
It was late afternoon before he could reach anyone on the phone. Finally he talked to his mother. Miz Ward began to cry. She did not understand, did not know what to do.
He called the woman in Ada who had become sympathetic to both boys, who accepted phone calls. The woman called Don Wyatt’s office. She told Winifred Harrell what Tommy had said. Winifred looked at the clock. It was a quarter to five, on the Friday before Christmas. Winifred said she would straighten it out.
Tommy called Tricia. By the time he reached her, it was early evening. Tricia called Don Wyatt at home; he was out to dinner; he would be back later. Tricia called a friend. There was disbelief in her voice, and fear. She had never thought the case would go to trial, without a body; but it had. She had never thought the boys would be convicted, without a body; but they had been. She’d been sure they would not get a death sentence; but they had. Now, she felt, she could be assured a hundred times that they wouldn’t execute Tommy before his appeals were heard, and she wouldn’t believe a word of it. Now she believed that anything was possible.
At the law office, Winifred explained the situation to Don Wyatt; the lawyer said it had been his impression that the judge had instructed the district attorney to file the papers turning the case over to the public defender’s office. Winifred called George Butner in Wewoka. According to Winifred, that had been Butner’s impression as well; but since he happened to have one of the forms in his office, Butner had given it to the judge himself. Winifred called Bill Peterson; he was already gone for the day. She called the Appellate Public Defender’s Office in Norman. They had never received notification that they were to represent Tommy Ward in the appeals process. And now they could not do so. They were already representing Karl Fontenot, because that appointment had come through. And in death penalty cases, they said, they could not represent co-defendants, because at some point there might be a conflict of interest.
Frustrated, Winifred called Judge Powers at his home in Chandler, and explained the situation. The judge chose not to assess blame. He took the blame upon himself; he should have noticed the Ward paper was missing from those he signed.
The judge would try to work it out on the phone, he said. If he could not, then he and Winifred would meet somewhere on Monday, and he would sign the necessary forms.
To keep the record in order, the judge said, he would have to formally assign the case to the public defender’s office. They would have to formally decline it. Then he would appoint a private attorney to handle Ward’s appeals.
Winifred thanked the judge. She called the warden at McAlester, and told him what was being done, that the paperwork would be forthcoming, that a stay of execution was in the works.
The next night, Saturday, the first day of winter, Tommy had a dream. He dreamed he was in the death chamber: not strapped in a chair, but lying down. He was allowed two witnesses in the chamber with him. They were his mother and his brother Joel. Two clergymen were also present. As a tube was hooked up to his arm, and a doctor was about to administer the fatal injection, Tommy said, “Stop!” The others paused. Then, in his dream, Tommy said, “My momma brought me into this world. I want her to take me out of it.”
He woke up before she did.
An unexpected delivery was made two days before Christmas to Bud and Tricia’s house. It was a gift of enormous cans of baked beans, pork and beans, pie fillings, and other basic foods. It had been sent by the Ada Kiwanis Club.
Money was tight, and the gifts were gratefully accepted. Bud and Tricia did not know why they’d been sent. They felt that perhaps, at some deep but informal level, the town was beginning to have a guilty conscience.
Late the next afternoon, Christmas Eve, Barney Ward came to their house. He, too, brought with him gifts of food: a hundred-pound sack of potatoes, a fifty-pound sack of yellow onions, a turkey, and other foodstuffs. The blind attorney shook Bud’s hand and wished him a Merry Christmas.
The attorney, wanting to help out a deserving family in the holiday spirit, had called a woman who worked at a loan company to ask who needed help. The woman had suggested that, what with their raising foster kids and other good works, the Bud Wolf family was the most deserving in town.
For the families of Denice Haraway—her own and her husband’s—Christmas was, of course, subdued. The year before, there had been rage: the terrible tale of the October confession tapes was still fresh; ahead lay the ordeal of the trial. Now there was continued mourning for Denice, and unavoidable recollections of happy Christmases past. But there was also, perhaps, a measure of grim satisfaction. The trial was done. The suspects had been convicted and sentenced to die. Denice could not be brought back to life, but if religion meant anything at all, then she was at peace, in the fields of the Lord. And here on Earth the gears of justice had meshed; justice was being done. And, one day, perhaps, retribution.
In his cell at McAlester, Tommy Ward was shaking more than ever. His body had erupted in a nervous rash. They were going to kill him on January 21, unless a stay of execution came through. By Christmas Day it had not come through.
His mother came to visit, bringing along Jimmy’s two boys, Jesse and Jack. As they talked, Jesse began to cry. Tommy began to joke around, to cheer him up, to get the boy laughing.
Afterward, in his cell, Tommy cried, because he could not be with them.
A few cells away, Karl Fontenot wrote a letter, on a yellow legal pad. He, too, had his family on his mind. “While I was in the city jail on Christmas of 1984,” he wrote, “my real family didn’t even come see me, write me or sent me no Christmas gifts. I wrote them continuously trying to get them to write me some letters but they never wrote me. I wrote them one letter which said if you love me at all family like I love you all you will write me or come visit me. That was like proof to me that they don’t love me.”
In the afternoon, Tommy called Tricia and Bud, to say Merry Christmas; they’d all been over at C.L. and Maxine’s in the morning, exchanging gifts; now they were at home, serving a turkey dinner to Tricia’s side of the family.
Tommy planned to spend Christmas night reading his Bible, and praying. But about eight o’clock, for unexplained reasons, the lights in the cell block went out. They stayed out till eleven the next morning. Reading was impossible. Tommy just prayed.
When he fell asleep, he dreamed again of the Haraway case. He dreamed that Denice Haraway was alive, was being held prisoner by some guys; and that he, Tommy Ward, was the head of the investigating team trying to find her. He was in a truck with a bunch of men, who were armed with rifles and automatic weapons. They jumped out of the truck, surrounded a house in which Denice Haraway was being held against her will.
He woke up before the rescue.
The paperwork on Ward’s and Fontenot’s visitor lists was completed. On the last weekend of the year, Tricia and Bud were able to see Tommy for the first time at McAlester. They brought along Rhonda and Yuvonda; they held the infant up to the glass, for Tommy to get a good look. It was a cheerful visit.
The sight of the baby summoned up yearnings in Tommy. He wrote them down that night: “Today was the first time I seen Yuvonda. She is a doll. I about started to cry when I saw her. I love baby’s. I always wanted one of my own. I always like looking at magazines with pictures of baby’s in them. And cry for hours wanting one of my own. I also think about this mess and how those people are trying not to let me have a chance of a famaly of my own.
“I wish I could only had been able to take my heart out and show those people in Ada how it beets and let them hold it and they’d see that there is no way I did it.”
New Year’s Eve came and went. And New Year’s Day.
It was 1986.
Tommy Ward still believed he was scheduled to die on January 21. No one had told him differently.
And he was right.
The judge, the lawyers, all thought the problem about the stay of execution had been taken care of. But in the bureaucratic labyrinth of the criminal justice system of the state of Oklahoma, there existed no stay of execution for him. Tommy Ward, though he had not been moved to the thirty-day holding area, was scheduled to be executed in twenty-one days.
The week ended. Another weekend passed. On Monday, January 6, Miz Ward received a call from the warden’s office. They still had received no stay of execution, she was told. She’d better find out what was going on.
The current of fear and uncertainty on which Miz Susie Ward’s life had floated helplessly since her son was arrested seemed to have no end to its twists, its turns, its rocky shoals. She called Winifred Harrell at Don Wyatt’s office; Tommy had not yet been assigned another lawyer.
Winifred, too, thought the matter had been taken care of. She telephoned Patti Palmer, the deputy appellate public defender, in Norman. Ms. Palmer told Winifred she had been at the Court of Criminal Appeals the previous Friday, January 3, that a stay had been granted, that the paperwork was on the way.
Winifred reassured Miz Ward.
No one reassured Tommy. He could make phone calls out, but no one could phone in.
At his home in Chandler, Judge Powers was pondering the case. He needed to appoint a private attorney to represent Tommy Ward, because the public defender was representing Fontenot. But he knew how unpopular the case was among the attorneys of Ada.
Finally he hit upon what seemed like the perfect solution. Who else could better represent Tommy Ward’s interests? Who understood the complex case better?
He looked up the Ada number and dialed. Judy Wood answered. She buzzed her boss’s office. She told him Judge Powers was calling.
At his large desk, beneath the shelf of Philip Roths and Stephen Kings, Don Wyatt picked up the phone.
Judge Powers told him his decision. He, Don Wyatt, would be Tommy Ward’s court-appointed attorney for the appeals.
Wyatt groaned. His chest sank. He did not want the assignment. He had had his fill of this case.
The judge told him the assignment was his anyway. The official document appointing him was on the way.
Wyatt hung up. He called in Winifred. As his legal assistant, much of the work load in handling the appeals would fall on her. He told her the news.
Winifred’s mind flashed to the Ward file she had maintained from the day she joined the firm. It had been in perfect order, until the trial. But after the trial everything had been shoved in any which way; it would not be needed for a long time, if ever, she’d thought; the case would be someone else’s.
“I quit,” she said. “I’d rather go on welfare.”
Winifred knew she was joking, but barely.
That same day was moving day at McAlester. The new Death Row had been completed, and fifty-six inmates, their cases in various states of appeal, would be relocated there. Because there were so many—the last execution in Oklahoma had been twenty years before—sixteen would have to double up, two to a cell; there were only forty-eight cells on Death Row.
From the beginning, Ward and Fontenot had talked about rooming together. But in recent weeks, with Karl increasingly blaming Tommy for his predicament, they had hardly been talking, had just had some desultory conversations in the yard. Now Karl told Tommy he wouldn’t share a cell with him.
Moved to Death Row, they were placed in cells across the corridor from one another. Karl was in a cell alone. Tommy’s cell had two bunks, and an inmate called Luke (name changed) was asked if he would share Tommy’s cell. Luke, who had murdered several people, said he would; he liked Tommy okay.
The inmates settled in, those who had them plugging in television sets, radios, arranging their toilet articles, their writing pads, spare prison outfits of dark blue shirts, blue jeans, blue boxer shorts, T-shirts. After a few hours, Luke turned to Ward. “Come over here and I’ll masturbate you,” he said.
Tommy was horrified.
“The hell you will!” he said.
“Look, I never done it before with a guy either,” Luke said. “But I’m here for life. I’m not getting out of here except in a box. I might as well get used to it. You’ll do it, after a while.”
Tommy knew that a lot of the men in the prison had turned gay. He made it clear to Luke that the idea revolted him.
The men kept apart. Afternoon became evening. Evening became night. In their new cells, the inmates were keyed up, restless. Long into the night, TV sets remained on, and radios. The inmates stayed awake, talking, shouting conversations from cell to cell. That was easier here than where they’d been; the doors here were made of bars instead of solid metal.
It was past 3 A.M. Most of the inmates were still awake. The sound of radios, TVs, tuned to different stations, cluttered the corridor. Karl Fontenot stood behind the barred door of his cell, looking out. An inmate in another cell started a conversation. They had to half-shout over the din.
“How come you ain’t rooming with your fall partner?” the man asked.
Karl replied, “Tommy? I don’t want to room with him. Tommy’s a snitch!”
Suddenly it was as if some implosion of sound had occurred on Death Row. The word “snitch” was the catalyst. As soon as it was spoken, loudly over the noise, conversation stopped. In the sudden, comparative quiet, radios were turned off, and TV sets. Quiet moved down the corridor like a snake, until there was total silence.
Fontenot had never spent a minute in jail, anywhere, until his arrest in the Haraway case. He was, perhaps, unaware that the deadliest word in any prison in America is the word “snitch.”
“Say that again?” the inmate said.
“Tommy’s a snitch,” Karl said. “If it wasn’t for Tommy, I wouldn’t be in here. If Tommy hadn’t given the cops my name, they never would of come to question me, for me to make that tape.”
There was silence again on Death Row. Then the other inmates started talking. They didn’t want snitches around. They started talking about killing Tommy.
They started planning aloud how to do it.
Tommy, listening, began to shake.
We could do it, one of them said, when they open the cell door to let Luke out for exercise. We could rush in and beat Tommy to death.
But then the guards would know who done it, another said. We should kill Tommy when no one is around.
Tommy became afraid, terrified. He began to shout for a guard.
A guard came down the corridor. He asked what was wrong. Tommy said, “You just get me out of here!”
The guard asked why.
“I’ll tell you after you get me out of here!”
“I have to get a sergeant for that,” the guard said.
The guard walked away. Minute after minute passed. The other inmates continued to talk about killing Tommy. The sergeant did not appear.
Luke looked at Tommy slyly. “I guess they’re waiting to see if I’m the one who’s going to get you,” he said.
Tommy was petrified. He knew Luke had killed before.
The guard returned. A few minutes later a sergeant arrived. They took Tommy out of the cell, led him down the corridor, to another section of Death Row. They put him in a cell, alone; it was larger than the other one.
“Now, tell me what’s wrong,” the guard said.
“They were threatening to kill me,” Tommy said.
He did not give details about who, or why. He did not want to get a reputation as a snitch.
He could tell the word had beat him to this unofficial protective custody area: word that “a snitch was coming down.” He told an inmate in a nearby cell that it wasn’t true; that Karl was telling lies.
“Your fall partner?” the inmate said. “That don’t make you a snitch. It happens all the time. Fall partners turnin’ on each other.”
In the morning, the news was brought to Tommy in his new cell in protective isolation: his stay of execution by the courts had been received. The stay would be in effect pending the outcome of his appeals. The state of Oklahoma no longer was planning to kill him on January 21.
In the afternoon, a guard told Ward he could go out and exercise if he wanted—not with the Death Row inmates who had threatened him, but with the Christians with whom he went to church. Tommy said he would wait a while. He wanted to make sure they were really Christians.