19
GERTY
Allan Tatum had lived in Gerty, Oklahoma, for twenty-seven years.
When asked the population of the small community, he liked to reply, “About thirty-seven.” A more accurate count would be 125 to 150, depending on how many of the children scampering through the countryside stood still long enough to be counted.
Gerty is in Hughes County, about twenty-seven miles east, and slightly north, of Ada; about eight miles east of the Pontotoc County line. It consists of a single grocery store and a scattering of houses. There is no post office, no school. State maps of Oklahoma show no roads leading to Gerty; in fact, there are two or three, all of them dirt. One leads down from Allen, just inside Pontotoc about nine miles to the northwest; another leads down from Atwood, farther to the north. It is an area of rugged hillsides choked with thick underbrush. The coons and the possums far outnumber the people.
Tatum, sixty-one, and his wife, Linda, lived in a house a quarter mile south of the Gerty store. He was a carpenter by trade. Linda worked at Toot’s Barbecue, out on Highway 75 to the east. Most winters, when the weather turned cold and snow covered the countryside, carpentry work was slow; Tatum would spend his time hunting and trapping in the woods. It was mostly for sport; depending on what he caught, he might barbecue the meat and sell the pelts.
The winter of 1985–86 was unusually warm in Oklahoma, as it was in most of the Southwest. Afternoon temperatures were often in the sixties. The weather stayed so good that Tatum was kept busy with his carpentry, repairing fences, building barns or cabins. By the middle of January he had not gone hunting once.
Then a project on which he was working was delayed; some hardware was late in arriving. Tatum woke up on the morning of Monday, January 20, with no work to do. He decided to go out and lay some traps. He was hoping he would get a bobcat.
His wife fixed him lunch before she went off to her job at Toot’s. Tatum ate, loaded his pickup with his traps and bait. He tossed his .22-caliber single-shot rifle into the truck and climbed in. For January, the seat of the pickup parked in the sun felt extra warm against his Levis.
He drove west three miles over rutted dirt roads to open land that abutted his property. He parked the truck and carried the traps and the liquid bait into the underbrush, away from the road, where hunting would be best, making mental note of the locations; he’d be required by law to run the traps every day, to see if any animals had gotten caught, were injured but alive.
The carpenter spent the whole long afternoon out in the brush. Then, with the winter sun dying early, he headed slowly back toward the pickup. He was pushing his way through the leafless brambles of huckleberry bushes, on a sloping hillside, when a rounded white object caught his notice, lying under a bush. In the fading light he thought it was a Styrofoam head, the kind sold in five-and-dime stores, for women to keep their hats on, or their wigs.
Tatum reached down and rolled the object over with his finger. A skull was staring up at him.
He did not touch it again.
He noted the location, and continued on to his truck.
As he drove home, his thought was to keep his mouth shut about what he had found. He had no idea who it might be, how long it had been there, where things might lead if he mentioned it to anyone. He parked the pickup, went into the house, sat. Linda was still at work, would be gone till after the supper hour. He looked at the telephone, silent. Tatum had a hard time with telephones. He was hard of hearing, could not understand what people were saying on a phone.
He waited. On toward seven o’clock, his brother-in-law, Leonard Muck, came over. Leonard lived just down the road, and came by most every night to pass the time. They often hunted together.
Tatum told Leonard, and asked him to telephone Orville Rose. They both knew Orville Rose. He was the sheriff of Hughes County, had been the sheriff for eleven years.
Leonard Muck told the sheriff what Allan Tatum had found. It was already dark outside. The sheriff asked questions, and Muck repeated them loudly to Tatum. The carpenter told his brother-in-law the answers, and Muck spoke them into the phone. It was agreed that the sheriff would come out to Tatum’s place at eleven o’clock the next morning, and Tatum would take him to the place where the skull was.
None of them speculated on what the skull was doing there, or on who it might be. The sheriff especially didn’t speculate. In his eleven years he’d gotten many calls like this. Most of the time it turned out to be a dog.
Orville Rose’s office was in Holdenville, the Hughes County seat; the birthplace, twenty-five years earlier, of Donna Denice Haraway. He left there Tuesday morning with his undersheriff, Floyd Trivitt, in Trivitt’s squad car. With Floyd behind the wheel, they drove in the morning sun down Highway 48, across the South Canadian River, past Atwood, down the unnumbered dirt road into Gerty. The sheriff had considered calling the OSBI, but first he wanted to make sure the skull was human. They picked up Allan Tatum at his house. Tatum directed them the three and a half miles to where he had seen the skull.
It was still there, on the ground under leafless brush, on a bed of autumn-colored leaves, about 200 yards up a slope from the dirt road. The sheriff knelt beside it. The lower jaw was missing. In the teeth of the human upper jaw he could see a lot of silver fillings.
He could not tell if it was male or female.
They looked about in the immediate area. They saw bits of fabric on the ground, and snagged in the bushes: little more than frayed remnants; they appeared to be from blue jeans. They came upon other bones, scattered. There was no hint of flesh; that would have been devoured by dogs or buzzards, the sheriff figured, in no time. They came upon the soles of a pair of tennis shoes; the upper, cloth part was gone. Tatum saw what he thought was bits of some kind of blouse or top. It was a “streakedy, stripedy blue.” Sheriff Rose would not recall seeing any part of a blouse or top.
The sheriff decided not to disturb the scene. They drove back to Tatum’s house. The sheriff called the OSBI office in McAlester. The agent there said he was too busy to come down, but that he would notify the crime lab in Oklahoma City; they would send someone.
Two OSBI lab technicians arrived at Holdenville in early afternoon. The dispatcher sent them out to Gerty. They met up at the grocery store with Sheriff Rose and Undersheriff Trivitt; Allan Tatum stayed home. The sheriff led the technicians to the site.
They took photographs. They placed the skull in a paper sack, along with what other bones they could find: rib bones, finger bones. They took the soles of the tennis shoes, the frayed pieces of cloth. The largest piece was the waistband of blue jeans. It was marked “Size 9.”
Sheriff Rose produced a rake, began to rake the leaves around where they had found the skull. He came upon something bright and shiny: an earring, white-gold in appearance, with a bit of red in it.
Between the earring and the size 9 waistband, they were fairly sure the remains were of a woman.
Not far from the shoe soles, they found two white socks, about half-knee-length. Inside the socks were toe bones. In another spot they found the zipper of the jeans.
The sun, still warm for January, caught the light color of some of the bones; others were uncovered as the men continued to rake the leaves in an area about forty feet across. They found leg bones, arm bones, a pelvis. Perhaps eight or ten ribs. One of the lab men, wearing gloves, placed each find carefully in a paper sack.
Before they placed the skull in the sack, the men studied it. Near the back were two holes, one on each side. They looked to Sheriff Rose like bullet holes, as if a bullet had been fired into the back of the head on one side, and had come out the other side. The hole was too big for a .22-caliber, he guessed; it must have been at least a .38.
It was nearly four in the afternoon when they left the scene. Rose and Trivitt drove back to Holdenville. The lab men—with the bones, the bits of fabric, the single earring—drove back to Oklahoma City, where the medical examiner found a tiny bullet fragment in the skull they brought.
By chance, District Attorney Bill Peterson was working in Holdenville that day; it was part of his three-county jurisdiction. Sheriff Rose found Peterson in the office of his assistant. He told the D.A. they had found a body out near Gerty.
“Did that Haraway girl have a lot of fillings in her upper teeth?” Rose asked.
Bill Peterson said yes; her father-in-law was a dentist; she had a lot of fillings.
“How was she dressed?” the sheriff asked.
Tennis shoes and blue jeans, Bill Peterson said.
“Then I’m pretty sure this will be her,” the sheriff said. “That’s what we found out there.”
Hearing of the fillings, the blue jeans, the tennis shoes, the size 9 waistband, Bill Peterson was fairly certain, too, that they had found Donna Denice Haraway at last.
The date was January 21, 1986—the day on which, prior to their stays, Tommy Ward and Karl Fontenot had been scheduled to be executed.
The fact of the discovery of a skeleton near Gerty was kept secret that night. Even Dennis Smith, the detective captain, did not learn of it until Chris Ross mentioned it at police headquarters the following day. Ross said they suspected it might be Denice Haraway; he was on his way to Dr. Haraway’s office, to get her dental charts, her dental X-rays.
The detective captain met the assistant D.A. at the dentist’s office. They stood outside and discussed the possible new evidence, beneath the windows of the apartment in which Steve and Denice had lived. Ross went inside and talked with Dr. Haraway, who had already been told of the find. He came out with Denice’s dental impressions. Smith took them and drove, with Mike Baskin, ninety miles to the state medical examiner’s office in Oklahoma City, to deliver them personally.
It was about 6 P.M. when they got there. The office was already closed. The detectives left the impressions with a night attendant, and returned to Ada. Positive identification would have to wait till morning.
Smith was excited during the drive up and back. From what Ross had told him, there were strong indications it was Denice: proof positive of what he’d assumed from the very first night, that she was dead. The thoughts that ran through his mind he put into spoken words a few days later: “Someone had already looked at the teeth that had been found, and had unofficially said it looked like her. I was pretty excited at her being found. I knew there was a bullet hole in the head. [But] nothing was going to surprise me in this case. The location wasn’t really going to surprise me because of the different areas that we had searched.”
Hughes County had not been searched during the investigation. “Ward and Fontenot’s statement said it was out west of town. Initially the people at the scene said the vehicle went east, and in the initial search they searched out east and south and that area. There are so many possibilities. They could have gone west first. In Tommy’s statement he said that after he got through raping her, he said they were cuttin’ on her and he decided he didn’t want anything more to do with it and he went home. He said after he got home he was washing up or something and he got to thinking about them leaving her body up there, and the police might find her close to his house. I don’t know, it’s hard to really say what actually did happen. Only they really know. From him saying that, you can kind of—he’s thinking about the police finding that body, so he goes back. That’s what he says. He goes back. It’s conceivable that the body may have been there and he may have loaded the body back up, in whatever kind of vehicle. He could have gone around the loop. There are so many ways of getting to where the body was found. There are so many likelihoods, possibilities. With him being out there so close to his house. He knew all that area. But, on the other hand, it’s always conceivable that he could have gone east from the store, and gone straight out there. We had wondered ourselves [why they would go through the center of town on a Saturday night].”
About the evidence that a gun had been used, and had not been mentioned on the tapes, Smith said, “Well, I don’t know. It really didn’t surprise me. I’m open for game on anything anymore. Anything’s conceivable. I can see ’em just making damn sure she’s dead before they left her. That would be the final act, a gunshot to the head.”
When the detectives arrived back in Ada from the medical examiner’s office that night, Mike Baskin telephoned Pat Virgin, Denice’s mother, in Purcell, to tell her they had found a body, that while it had not yet been definitely confirmed, it probably was Denice.
“It was good news for us that the body was found,” Smith said. “The family acted as if they were relieved to know that her body had been found. Where she was at and everything.”
The next morning, in Oklahoma City, the state medical examiner compared the dental impression of Denice Haraway’s teeth, delivered by the detectives, with the upper jaw in the skull found at Gerty. It was a perfect match. The identification was now positive. The skeleton found at Gerty was that of Donna Denice Haraway.
The identification was given out to the media. Tommy Ward heard it on a borrowed TV set in his cell.
Ward was frightened by the report. He asked for the telephone, called his mother’s house in Tulsa, spoke to his brother Melvin. He told Melvin he’d been hoping Denice Haraway would turn up alive; that way everyone would know for sure that he didn’t do it. Now there was no chance of that.
Melvin calmed Tommy down. He told him that now perhaps the police would find evidence that proved someone else did it.
Tommy called a friend. “I was hoping and praying she was still alive,” he said. “I’m gritting my teeth and hoping they’ll find evidence that proves I didn’t do it.”
“I never even heard of Gerty,” Tommy said. “I heard of Atwood, because you pass it on the way to McAlester. But I never heard of Gerty.”
Karl Fontenot also saw the report in his cell. It made him feel good, he said, for two reasons. One was that the woman had been shot, and his tape said nothing about shooting. The other was that she’d been found a long way from where it said on the tape she’d been put. “Maybe now they’ll see the tape was all lies,” he said.
In Ada, District Attorney Peterson was answering questions from the press about the finding of the body, about whether it would affect the convictions of Ward and Fontenot.
“Why would it?” Peterson said. “We convicted them without a body, and now we have one.”
He said the finding of the body simply confirmed the justness of the convictions. “They sent us out looking north, south, and west,” he said. “Every direction but the right one. I should have known to look east. They said they put her in a bunker. Everything stands up except what they did with the body.”
Peterson told the press Ms. Haraway had been stabbed in the chest and shot once in the head, “according to the medical examiner.” This statement would be reported in the media in Ada and throughout the state—that Denice had been stabbed and shot. “Nothing found so far proves their innocence,” Peterson said.
Across town, in his office on Arlington, Don Wyatt had a different reaction. “If the body suffered a gunshot wound,” he said, “this cuts against what they were trying to prove. They said the instrument of death was a lock-blade knife. If the body was clothed, this cuts against what they were trying to prove. If there was a blouse on it, I’d like to know a description of the blouse, if it was different. The people their witnesses saw on Richardson Loop must have been someone else. I heard OSBI chemists have had the body. We need to see what they found. Is there any physical evidence out there that ties the body to the defendants? We don’t know. Or to anyone else? I don’t know how hard they’re going to look out there. They feel they have their convictions.”
In late fall, Bud Wolf had bought a small black-and-white TV set to replace the color one that had been burned out by lightning before the trial. Bud and Tricia were watching it Wednesday night when the first unofficial announcement about the finding of a body was made. Tricia was watching it in the living room Thursday morning when the identification of Denice Haraway was made official. Her first reaction was a sick feeling. She felt that Tommy and Karl were now doomed. She had been hoping that Denice Haraway was alive. She had known Denice was dead, but had been hoping she was alive—both for Tommy’s sake and for the sake of the Haraways.
In the afternoon she read the Ada News, as most of the town was doing. The headline “Haraway’s remains are found” crossed the top of the front page, beside the old yearbook picture of Denice. The story in the newspaper contained more details than had been mentioned on television. It told of the blue jeans, the tennis shoes, the earring being found. It did not mention a blouse. And it contained Bill Peterson’s comment that the finding of the body would not affect the case.
After her first feeling of doom, Tricia grew hopeful again. Perhaps they could trace the bullet fragment to a gun that would lead to the killer, she thought. Maybe they would find the gun itself, or something else that the killer dropped.
And she grew suspicious. If they had found blue jeans and tennis shoes, she wondered, why hadn’t they found a blouse? She knew the blouse was the key. If they had found a blouse, she figured, and it was different from the one on the tapes, that would prove the police had fed Tommy and Karl the story on the tapes. Because how else would Tommy and Karl know about Denice having a blouse with little blue flowers, if she hadn’t been wearing it?
The hopes and the suspicions and the fears all ran together in her mind. Like Don Wyatt, she wondered how hard the authorities would look for evidence that might clear Tommy and Karl.
Richard Kerner was out of town that day. He did not hear of the discovery of the body until the TV news that night.
His first thought was “She was shot!” That, he felt, cast further doubt on the confession tapes.
His second thought was of Jason Lurch’s grandmother. The investigator had visited the grandmother when he was first trying to locate Lurch. He’d learned that Lurch had lived with her for a time, had once shoved his grandmother so hard she fell down and broke an arm or a hip. The place she lived—where Lurch had once lived—was called Centrahoma. It was in an open area of trees and scrub and hills. If you drove north from Centrahoma on Highway 75, the first community you could turn off to, about twenty miles to the north, was Gerty.
Kerner’s next thought was of Larry Jett, standing among the plaster birds and Bambis in the yard ornaments shop, lying to him about having lived in Kansas at the time Denice Haraway disappeared. Larry Jett, the investigator recalled, looked a lot like Tommy Ward. And he came from Allen, the closest village to Gerty. The place the body had been found was a no-man’s-land about one-third down from Allen and two-thirds up from Centrahoma. Both Lurch and Jett could be familiar with the area, Kerner figured.
The investigator had never relinquished his suspicion of Lurch for having attended every scattered day of the preliminary hearing, and then for not attending the trial; and for Karen Wise and Jim Moyer thinking they might have seen him that night. A combined scenario formed in the investigator’s mind: the real killers might have been Lurch and Jett, in Lurch’s nephew’s truck.
And yet all of his suspicions, Kerner knew, proved nothing.
The officers who had been working on the case from the beginning—Dennis Smith, Gary Rogers, Mike Baskin—wanted to see the spot where Denice Haraway had been found. They also wanted to search for more evidence there. A weapon, perhaps. More bones. More clothing. The story in the Ada News had quoted Bill Peterson as saying a complete rib cage had been found. That was not the case. Some rib bones were missing, and it was on the rib bones that evidence of stabbing was most likely to appear. So they wanted to find more rib bones, with stab marks.
None of the published accounts had mentioned anything about a blouse or top being found. Dennis Smith had heard that when the lab technicians removed the skeleton, under it, on the leaves, they had found evidence of a blouse. It was so decayed, so fragile, that if they had tried to touch it, it would have disintegrated. But the lab men had photographed it, Smith had been told. It was pale lavender, with little blue flowers on it.
If this was true, it had not been made public.
The three officers decided to meet at police headquarters Friday morning and go out to Gerty to conduct their own search. They would be joined by Bruce Johnson, a new investigator for the district attorney’s office; by another detective; and by Sheriff Rose of Hughes County, who could show them the place.
Detective Smith arose early, as always, to distribute the Oklahoman through the town before going to work. A story about the finding of Denice Haraway’s body appeared on the lower part of the front page, and continued inside. He paused to read it—and his blood pressure rose as he read the last part of the story. It consisted of comments the reporter had obtained from Don Wyatt, who had not been quoted in the Ada News.
Wyatt was quoted as saying the finding of the body would help the defendants in their appeals. The story continued:
“The description of that blouse was fed to them by the police” during their interrogation, the lawyer said.
“That’s how the police got those confessions. They kept going over and over on them until they gave them those stories to get them off their backs,” Wyatt said.
“They thought the police would eventually disprove their stories and [they would] be released.
“But that wasn’t the case. The police chose to believe those cock and bull stories,” Wyatt said.
The detective was incensed by Wyatt’s statements. He was furious as he met the others at headquarters, as they climbed into a black unmarked car, Smith at the wheel, and drove east on Arlington toward Gerty. As they passed Don Wyatt’s expensive law building, which happened to be on the route, Smith suddenly swung the car to the right, up the short, steep driveway, and into the parking lot behind the red brick building. It was 8:30 in the morning. The lot was empty, the building not yet open.
Frustrated, the detective captain turned the car around and started back toward the driveway. As he did, a van swung off the road into the driveway. The van was wide; there was not enough space for the car and the van to pass in the drive. Smith backed up his car. The van came up the drive, then paused beside the car. The driver of the van was Winifred Harrell; she was often the first of Don Wyatt’s employees to arrive at work.
Winifred did not recognize the black car. But she saw Dennis Smith behind the wheel. She rolled down her window to talk. She liked Dennis, thought he was a fine person. Way back ten years ago, she and her first husband, and Dennis and Sandi, sometimes took vacations together. Their contact since had always been friendly. He had chatted with her amiably during the trial. Just a few weeks before, doing Christmas shopping in Oklahoma City, she had run into Dennis and Sandi and one of their boys, and they’d had a nice chat.
The detective rolled down the window of the car. Winifred smiled.
“What are you doing?” she asked, wondering why the police would be at Wyatt’s office so early in the morning.
“When you see Don Wyatt,” Smith said, “you tell him I said, ‘Bullshit.’”
“What?” Winifred said. She was taken aback. Smith had not even said good morning.
“When you see Don Wyatt,” the detective repeated, “you tell him I said, ‘Bullshit.’”
“He’s in Muskogee today,” Winifred said. “But what’s going on, Dennis? What’s the problem?”
“Read the Daily Oklahoman,” Smith said, “and tell him I said, ‘Bullshit.’”
“Well, you don’t have to take it out on me,” Winifred said. “I just work here.”
Another officer was seated beside Smith. Mike Baskin was in the backseat. He rolled the back window down. “Birds of a feather flock together,” he said.
Angry, Winifred drove off, into the parking lot. She expected that kind of attitude from Baskin, but not from Dennis. She felt they had an honest disagreement about the case. She felt the detective captain truly believed that Ward and Fontenot were guilty. He was not the kind of person to knowingly frame someone. But she had observed Tommy Ward, had spoken to him. If Tommy was guilty, she thought, he was the best dad-gum con artist she had ever run into.
The finding of the body in Gerty had only confirmed her belief in his innocence. She felt it made no sense for the boys to give a true confession, and then not tell where the body was, even after they had been convicted and sentenced to death. Smith had maintained before that if they burned the body, they had nothing to trade for a life sentence; or if they had thrown her in the river, they would have had no idea where she was by the time they were arrested. But now they had found the body, not burned, not thrown in the river: just left under some bushes. If Ward and Fontenot had put it there, Winifred felt, it made no sense for them not to have told the police where it was.
Dennis Smith swung the car east again on Arlington and drove out to Gerty. Sheriff Rose met them there, showed them the place where the body had been. The men walked about, searching. Then they got down on their hands and knees to search. Two autumns of leaves had fallen since the night of the disappearance. They poked about in the mulch, using their hands, using a metal detector in hopes of finding a knife, or a gun, or both.
They spent all of the morning there, and part of the afternoon. The metal detector unearthed the second earring, white-gold with red in it. But no weapon. They found more bones—the lower jaw with all the teeth intact, a few small bones. But no additional ribs. The winter-bare branches of huckleberry bushes tried to scratch at their faces as they crawled underneath. Dennis Smith felt that with the dirt road running only 200 yards away, the place was fairly accessible, a lot less rugged than he had been led to believe.
The next day, Saturday, Don Wyatt and Bill Willett decided to go bird hunting. Not exactly by chance, they decided to hunt in the wooded area near Gerty. As they prowled with their shotguns, up the sloping terrain, Wyatt was reminded of the hill country of Tennessee. A person would have to know his way around, to come in here at night, he thought; it was rugged country.
One juror in the case, hearing of the finding of the body, felt relief for Denice Haraway’s family. Only after you bury a loved one, she felt, can you put the death behind you and get on with your life. The fact that Denice had been shot did not lead her to question the verdict, she said.
Another juror echoed that feeling. “It doesn’t really matter how you do it,” he said. “She’s still dead. Just because you say you killed her one way, and you did it another way, doesn’t make you any less guilty.”
Fontenot’s trial attorney, George Butner, was conducting another murder trial, in Duncan, Oklahoma, in the south-central part of the state, when he heard that Denice Haraway’s body may have been found. The initial report did not include the cause of death, and Butner’s first thought was about the clothing—the blouse. If they found her blouse out there, and it was different from the one described on both tapes, then that would be monumental, he felt; then the boys would be home free. He assumed that the cause of death would be stabbing. “In my wildest dreams,” he said later, “I never thought that they would find the body and they would discover she had been killed with some other kind of weapon, that she had been shot.”
With the fact of Denice Haraway’s death now established beyond all doubt, Butner did not think an appeals court would free the defendants on any grounds without ordering a new trial. But he felt that this new evidence—the cause of death being a bullet wound—was extremely exculpatory. Since the state’s case rested so heavily on the confession tapes, and those made no mention of shooting, he believed the Court of Criminal Appeals—or some other court along the way—would order a new trial, and let a jury decide whether the confessions stood up.
In a profession where he was frequently called upon to defend murderers who were probably—or admittedly—guilty, Butner had never been sure about Karl Fontenot, one way or the other. The discovery of the body with a bullet in the skull raised new doubts in his mind, increased the likelihood that Karl was innocent.
About Tommy Ward he had more of a problem, because Ward had placed himself at the scene twice—not only in the confession tape, but again more than two months later, when he told his Marty Ashley story. If Ward had not been there that night, Butner felt, then he had real psychological problems.
The responsibility of getting Fontenot’s conviction overturned was no longer Butner’s. The case was now in the hands of Terry Hull, a female attorney in the Appellate Public Defender’s Office.
Terry Hull knew of the case, had been following it in the newspapers. She called George Butner to get more details. She felt that the case, with all its twists and turns, was the most incredible, the most difficult to believe, that she had ever encountered or heard of. The finding of the body in Gerty, with a bullet wound in the skull, was yet one more incredible twist.
Her early reaction was that there would be many promising grounds for appeal in the case: not because of the actions of Judge Powers, whom she felt was an excellent judge, but because of the nature of the case. But she could not determine what lines of appeal to follow until she read the voluminous transcript of the trial, and that would not be ready until April 25—six months after the date of sentencing.
Like all appeals, these would be decided one day in the calm, orderly atmosphere of the Court of Criminal Appeals in Oklahoma City. That, Ms. Hull felt, was one hundred percent to the good of her client—to get the decision making away from the roiled emotions and passions of a small town like Ada.
Her first action after the discovery of the body was to petition Judge Powers to hold a disclosure hearing: to compel the district attorney to turn over to the appeals attorneys all exculpatory evidence that may have been found along with the body, as well as the official medical examiner’s reports.
In the medical examiner’s office, meanwhile, opinions had changed. The first examination of the rib cage had been made for the office by Dr. Richard McWilliams, a consulting forensic anthropologist. He had reported “a scalloped cut wound” on one of the ribs. On the basis of that finding, Bill Peterson and the press had been informed that Denice Haraway had been stabbed as well as shot. During the next eight days, however, Dr. Larry E. Balding, a forensic pathologist in the medical examiner’s office, had made further studies. He had also called in for consultation Dr. Clyde Snow, a nationally known physical anthropologist on the staff of the University of Oklahoma. (In June of 1985, Dr. Snow had been one of six U.S. experts sent to Brazil to study and verify the remains of Nazi torturer Josef Mengele.) Together, Drs. Balding and Snow came to a new conclusion: that the marks on Denice Haraway’s rib cage had not been made by a knife, but had been made by animal teeth, “to a 98 percent degree of certainty.”
On January 31, Dr. Balding telephoned Bill Peterson and told him of this finding. He made a memo of the phone conversation for his files.
Peterson did not notify the defense attorneys of this new finding. Nor did he tell the press or the public, who were left to believe there was evidence that Denice Haraway had been stabbed as well as shot.
Inside the prison, Tommy and Karl were still not speaking. Tommy remained in protective isolation; Karl hung out increasingly with the man who was threatening to kill Tommy because of his unpaid poker debt; with the men who were threatening to kill Tommy because Karl had said he was a snitch. Tommy read his Bible, took a Bible correspondence course, went to chapel regularly. Karl dropped all pretense of religious faith. He was in with, in Tommy’s view, “a bad bunch.”
In the Pontotoc County Jail, Ward’s weight had dropped forty pounds, from 165 to 125. He had not liked the food; he’d been too nervous to eat much, and lack of exercise had decreased his appetite. At McAlester, though he was still nervous, there was exercise and better food: real milk instead of powdered milk; even a steak sometimes. He built up rapidly to his normal weight, grew muscular from doing pushups in his cell, joked about developing a small belly.
One day he was handed a note by a trustee. It was from the inmate in the cell across the corridor. The inmate wrote Tommy that he was falling in love with him.
Tommy was repelled. One day he’d seen that same inmate performing oral sex on a trustee through the bars of his cell. Tommy kept away from the door, out of sight, as much as possible after that.
His cell was a few feet from the shower room. In protective isolation he was allowed to shower alone. Karl usually was brought to shower with two or three of his new buddies. One day Tommy could hear them talking by the shower room. One of the inmates was urging Karl to tell the authorities that Tommy had killed Denice Haraway. Then, the inmate said, they could kill Tommy in the prison, and no one would care—and Karl would go free.
Tommy was afraid Karl might do that, might believe he could get freed that way.
A month after the body was found, Ada authorities decided to conduct one more search of the fateful hillside near Gerty. They scheduled it for Saturday, February 22. Members of Denice Haraway’s family learned of the planned search, and asked if they could go along and help. The district attorney’s office felt it could not refuse the request.
The weather had turned warm again after a brief period of snow. The peach trees in Dennis Smith’s yard were already in early bloom; he was hoping a frost would not destroy them.
The day of the search was sunny and blue, the temperature near sixty degrees. The detective captain was apprehensive as he headed to Gerty. Another search might prove useful in turning up more bones, more clothing, perhaps even the murder weapon. But with members of Denice’s family along, it could become an emotional scene. A professional police officer looking for pieces of a skeleton was one thing; a family looking for pieces of a daughter, a wife, a sister they had loved, was something else.
About forty people had gathered at Gerty when the search began at 9 A.M.: officers and family both. They lined up a few hundred feet from where the skull had been found. Shoulder to shoulder, they got down on their hands and knees, and began to rake through the fallen leaves with their fingers, their hands. Among them were Steve Haraway; Dr. Jack Haraway; Jimmy Lyon, Denice’s father; Ron Lyon, her brother; and other relatives, including several women. Side by side with the law officers, they crawled across the hillside, turning up the dead leaves, brushing past thickets beginning to show green buds of new life. They reached the spot where the skull had been, searched there; continued past it for many more yards. The searching went on for hours. There were no outbursts, no tears. Smith’s fear of an emotional scene wasn’t realized. The searchers were stoic, methodical.
When they had crossed the hillside, they did another search, walking this time. It was late afternoon by the time they quit. They had found more bits of blue-jean fabric, a few small bones. Nothing more.
Some time later, when the lab people had finished photographing and cataloguing the bones, X-raying the skull, testing the remnants with chemicals—recording the evidence of the homicide, in case a new trial were ever ordered—the remains of Donna Denice Haraway would be turned over to her family for interment.
The service would be private. Not even the police would be invited. No public announcement would be made.
On Monday, March 3, the principals—judge, attorneys, D.A.—were back in the courtroom where the trial had taken place, this time for the evidentiary hearing. It was mostly routine. Terry Hull, joined by Don Wyatt, requested that all exculpatory evidence obtained by the D.A. since the trial—including the medical examiner’s report—be turned over to the defense. Bill Peterson said he had not yet received the official report, that he would make it available when he did. Judge Powers ordered that all new evidence in the case, already obtained or that might be obtained in the future, be turned over to the appeals attorneys within five days of discovery.
As the hearing neared its end, Don Wyatt approached the bench. His ailing father-in-law, he told the judge, had died in December. And his own father had died, unexpectedly, of a heart attack just eight days before, on February 23. Because of this, it was an extremely difficult time, Wyatt told the judge. He requested, for personal reasons, to be relieved of his duties as Tommy Ward’s court-appointed attorney for the appeals process.
Judge Powers denied the oral motion. But he told Wyatt to submit the request again in writing.
In the ensuing days, the judge contacted other Ada attorneys. None of them wanted to work on behalf of Tommy Ward. The judge could have appointed them against their will, but he did not like to do that; he did not think it made for good justice.
About a week later, the judge found an attorney in Seminole, thirty miles north of Ada, who agreed to take the case. His name was Joe Wrigley. The judge then granted Don Wyatt’s motion to withdraw, and he appointed Wrigley to be Ward’s new lawyer.
For the second time, Winifred Harrell closed her file on the Tommy Ward case. “In one way, it’s a relief,” she said. “In another way, I hate to get out of it.”
Miz Ward drove down from Tulsa to visit Tommy, a two-hour drive, on Saturday, March 8. It was one of their better visits; they spent most of it reminiscing about Tommy’s childhood, about his dad.
Tommy remembered a game they used to play, where his dad would look like he was asleep in a chair. The kids would go over to him and stick their finger in his hand, and he would grab their finger and hold it tight and not let go, all the time pretending that he was asleep. The kids would start yelling, “Let me go, let me go.” But he would not let go.
They reminisced about times Tommy got whipped with a switch his dad kept in the back of his 1949 pickup. Usually he got whipped for going to another kid’s house after school without getting permission; he’d always be sure to be home by dark, by suppertime, but he’d still get whipped if he hadn’t gotten permission first. He remembered one time when he left a note at home that he was going to a friend’s house to help with a yard sale. When he got home, he got whipped in spite of the note. “You’re supposed to be here,” his dad said. “The note ain’t you.”
These personal visits were the only times Tommy could hear his family’s voices now; Bud and Tricia had lost their telephone in January, because they could not pay for the collect calls, and could not say no to them; Miz Ward, living at Joel’s house, had lost the phone there for the same reason.
Miz Ward remembered times when Tommy’s dad would be upset because someone had done something wrong and none of the kids would own up to it. He would get angry, trying to get somebody to admit doing it. Tommy would sit at the table, twitching his fingers, twitching and twitching, and finally he would say, “I did it, Daddy!” He would take the blame, and get the whipping, when a lot of the time he hadn’t done it. He just couldn’t stand to see his father angry like that.
When Miz Ward recollected that, Tommy said, “Just like now.”
One day as Tommy was led from the visiting area, an inmate on his way there began to talk to him. He said he had been amazed that Tommy and Karl were convicted, and said that he knew they didn’t do it. Tommy did not recognize him at first; then he realized who it was. It was Billy Charley, from Ada: the fellow whose name had been called in to the police about thirty times, the same number as Tommy’s, as looking like one of the composite drawings. Now Billy Charley was in McAlester himself, doing time for burglary.
Billy Charley asked Tommy Ward how he was doing. They wished each other luck.
On April 25, 1986, six months to the day after Ward and Fontenot were sentenced to death, their petitions in error—the formal name for their notices of appeal—were filed with the Oklahoma Court of Criminal Appeals. On the same day—the deadline—the twelve-volume transcript of the trial was filed with the court, and was sent to the two appeals attorneys. That set a new calendar in motion. The attorneys, Terry Hull for Fontenot and Joe Wrigley for Ward, would have 120 days to file written briefs supporting their motions to overturn the convictions on various grounds. The state of Oklahoma would then have 60 days to file answering briefs. These would be prepared not by District Attorney Peterson, but by the State Attorney General’s office. The appeals attorneys could request time to reply to the answer briefs; it was normally granted by the court if sought.
When all of the briefs had been filed, the Court of Criminal Appeals would schedule oral arguments. Only after these were heard would the court issue its rulings. The appeals on behalf of Ward and Fontenot would be handled separately throughout, as independent cases.
This initial appeals process normally would take up to a year, or more. The court, on the various motions, could overturn the convictions, could order a new trial for one or both defendants, or could turn down the motions and let the convictions and the death sentences stand. If that happened, the attorneys could find other avenues of appeal. There were inmates at McAlester who had been sentenced to death in 1977 and whose appeals had not run out nine years later.
One hope of Death Row inmates throughout the country was the case pending before the U.S. Supreme Court concerning the exclusion from juries of persons opposed to the death penalty. If the court ruled that such exclusions in capital cases were unconstitutional, hundreds of death sentences might well be commuted to life. The attorneys for Ward and Fontenot had that possibility in mind, because of the single gray-haired lady in the Ada courtroom who had been dismissed for that reason. But on May 5, 1986, the Supreme Court ruled, by a 6–3 vote, that such exclusions were permissible. The convictions, the sentences, would stand.
In the spring, the attorneys finally received their copies of the medical examiner’s report on Denice Haraway. The probable cause of death was listed as a gunshot wound to the head. It described “an entry gunshot wound to the left occiput and an exit gunshot wound to the right temporal region.” There was no reference anywhere in the report to stab wounds. There was also no reference to the expert finding, “to a 98 percent degree of certainty,” that there were no stab wounds evident. The attorneys remained uninformed of that finding.
Asked why the D.A.’s office had told the press Denice Haraway had been stabbed and shot, Chris Ross said the rib bones found had scratches on them “that would be consistent with being stabbed—that could have been stab wounds.” He conceded that the marks could also have been made by the teeth of dogs, coons, or other animals. He, too, did not mention the “98 percent” finding that they were animal marks.
The absence of any reference to stabbing in the official document was not reported in the media.
If there was any photographic evidence of the lavender blouse—as Dennis Smith had heard, but not seen—it was not included in the medical report.
In late spring, Karl Fontenot voluntarily roomed with Hank—one of the men who wanted to kill Tommy Ward. Those few people on the outside who had befriended Karl, including his new attorney, became concerned. They began to wonder, should he ever be cleared and released, what kind of life he would lead on the outside, after his time in McAlester.
Tommy Ward remained alone in his isolation cell, reading his Bible, writing letters and poems. One poem he called “Loneliness.”
In a letter, Tommy wrote:
I’ve seen with my owne eyes 3 deaths. One my dad and I seen a boy named Earney Horner at school get hit by a cemi truck. And seen a guy wreck on a motorcycle…That is the most frightning moments of my life, when I seen those 3 deaths.
In another letter, he wrote about his father:
After dad retired from the glass plant in Ada we picked up beer cans and sold them. We use to go out every pretty day and pick up beer cans on the side of the highways. There propely isn’t a highway in Oklahoma that we didn’t pick up cans on.
After we colected the cans for a wile we would smash them and put them in toe sacks and take them to the beer company in Shawnee. Back then the cans was 10 cents a pound. When we would take the cans and sell them we would get quiet a bit of money for them because we had so many pounds of cans. We didn’t half to pick up the cans because we needed the money. We picked them up so dad would get walking exercise. Since dad enjoyed walking he decided to pick up cans wile he did it. At first we would walk around near our house in Ada. Then as time went by we started going out on the highways all over the place. At that time I believe all of us kids were home besides Jimmy. Dad went into the hospitle of a heart atac. After that when he got out we quit picking up cans. I went out a few times around the house picking up cans for a wile. The summer of 83 I picked up cans because I didn’t have a job. I also picked pecans and sold them at the place they bie them in Ada. But getting back to the story. After dad had the heart atac we quit picking up cans. We didn’t go fishing as much eather. Then dad went into the hospitle again with gaulstones. After dad got out a cuple of years later he went back in the hospitle because the tube they put in him grew back wrong or was pinched some way. But they took tests on him and figgered that was what was wrong with him. When they operated on him they found surosis of the liver. The doctors sowed him back up and told the famaly. We all were at the hospitle when the doctor called mom and Joel (I believe) into the office. We all knew that something had must be wrong. Then mom and Joel came back to the waiting room crying and they told us about dad. The doctor told mom that he had only 6 months or so to live. Dad only lived 3 months.
Dad stayed in the hospitle a couple of weeks then came home. Dad was a pretty good size man. In the 3 months time he lived he lost a lot of weight. The first month he was home he got around pretty well on his own. The second month he got to were he stayed in bed the most of the time. He slep a lot also. He would be siting in his chair and fall to sleep with a lit cigarett in his hand and birn holes in his chair. We kept pretty well watch on him wile we were home from school and wile we were at school mom kept pretty well watch on him. Then in the third month he lived dad got real bad. Me or Melvin or Joel would half to help him up and down. The time was drawing nearer and nearer to his death and we knew it. I cry every time I think about how bad he got. I would half to hold him up wile he used the bathroom. And hold him so he wouldn’t pee all over the place. I had to help him to the bathroom the most of the time because Melvin would start crying and run outside. Joel was working at Don Hays Osmobeal and Caddlac and would come home around 5 or 6 oclock in the afternoon.
It was a hurrafying experance seeing dad get weeker and weeker. Then one day the teacher came in the classroom and told me that my sister was on her way to pick us kids up that our dad was about to die. I left the classroom crying and went outside. Me and Kay was the only ones in school at that time.
Mom came picked us up at school and took us home. It was on a Friday that she picked us up from school. Dad was in bed bearly breathing with his eyes closed. We stayed in his bedroom for 3 days watching his breaths get smaller and smaller. That Saturday night dad stoped breathing. My sister Trisha screamed No Daddy and grabed him he all of the sudden started breathing again. We all cryed for a long time after he started breathing again. Then the next morning (Sunday) about 9:00 dad took his last breath and died. I ran out of his room to the living room and cryed. I could hear Trisha crying and screaming no daddy no. I got up and went outside. Thadd Sellers was outside and I told him about dad and he came over. We didn’t have a phone so Thadd called the fuenarl home and they came after him.
When the people came to take dad away my famaly was crying and telling thim no that they cant take him away. Trisha cept screaming wake up daddy wake up. Joel and Melvin was screaming no daddy wake up. I went around to the back of the house and sit down crying. I couldn’t watch them people take my dad away.
One night, on his bunk in McAlester, Tommy Ward had a dream. He dreamed he had gotten out of prison, and was asleep at the house on Ashland Avenue; the house in which his father had lived, and had shaded with a pecan tree, and had died; the house the lawyers had sold. In the dream it was still his home. In the dream he was asleep in his bed when a drill came poking through the wall. The man who killed Denice Haraway was drilling through the wall into his room. The guy knew that the police would be after him, now that Tommy had been cleared and freed. Tommy saw the drill coming through the wall. He saw a hand coming through the hole. He tried to get out of bed, but he couldn’t move. The hole kept getting larger; the hand of Denice Haraway’s killer was pushing through it, coming after him. He tried to scream, but he couldn’t make a sound. He heard voices in another room. He tried to get up and run to them, but his feet wouldn’t move. The hand was coming closer.
He woke before the hand could get him. He had not seen the face of the man who killed Denice Haraway, only the hand.
His whole body was sweating. He got up from his bunk and took a drink of water. Then he sat on the edge of the bunk, trying to calm himself. His heart was going ninety-to-nothin’.