The Dreams of Ada (39 page)

The district attorney was sticking to his formula of laying out all the evidence. If he did not enter this tape, he reasoned, the defense undoubtedly would. And he wanted the confession tapes to be the ones the jury saw last.

The afternoon session began with Jimmy C. Lyon, a tall, heavyset, balding man, a truck driver. Asked his relation to Donna Denice Haraway, he said, “I’m her daddy.”

He said he had not seen or heard from her since April 28, 1984.

Her brother, Ronald Lyon, wiped a tear from under his eyeglasses as he said the same thing.

One by one after that, Bill Peterson called twenty-one witnesses, each of whom spent less than a minute in the witness chair. They were friends of Denice Haraway, cousins, aunts, uncles, great-aunts, second cousins. The D.A. asked each the same question: Had they seen or heard from Denice since April 28, 1984. Each of them answered, “No,” and stepped down.

Most of the witnesses were expressionless as they answered. The jurors were impassive as they watched.

The next witness, Lydia Kimball, an OSBI criminal intelligence analyst, testified about the extensive checking she had done in the past sixteen months to locate Denice Haraway, dead or alive: driver records in all fifty states, hospital records, prison records, all unidentified bodies in the country for the past two years. All had been unsuccessful.

“Then you have no proof that she is dead or alive,” Wyatt observed on cross-examination. “Are you still looking for her right up till today in all fifty states?”

“Yes, I am,” Ms. Kimball said.

Bill Peterson asked if she was still looking for Denice Haraway’s remains as well.

“Yes,” she said.

Between witnesses, Tommy Ward looked at the spectator section. He smiled at a blond woman seated halfway back. The woman mouthed with her lips three words to him, “I love you.”

Tommy smiled.

The woman was Charlene, who had met Tommy in jail, who had written to Tricia saying she and Tommy planned to marry after the trial.

The state’s forty-ninth witness was Detective Mike Baskin. He recounted his actions as the first detective to arrive at McAnally’s. He described his search for Denice Haraway that night, and the countywide search held the next day. Then he arrived at May 1, 1984—the day that Tommy Ward was first questioned. The attorneys for both sides approached the bench, as if on some prearranged schedule. After a brief conference, the judge again ordered the jury taken from the courtroom. The critical moment of the trial, in terms of the law, was at hand. The defense would now move that no statements made by the defendants could be used, because the state had not proved the corpus delicti—that a crime had been committed, and that the defendants had had something to do with it.

Leo Austin, the former judge, Wyatt’s partner, approached the lectern. He made his argument facing Judge Powers, the jury box empty behind him. He was well aware of its importance. If the judge ruled that the corpus delicti had not been proved, he would have to dismiss the charges. And the boys could never be tried again, even if physical evidence were found against them—because that would be double jeopardy.

Austin cited relevant portions of the law involving corpus delicti. “The way I read that, your honor,” he said, “is that the state has to prove before the confessions and admissions can be entered, can be considered by this court and by this jury, that the state must prove that a death has occurred, and that that death was caused by the conduct of another person. The court has heard the evidence. There’s only a few witnesses that can testify as to any conduct on behalf of these defendants. We have before us evidence as to the conduct and so forth of Ms. Haraway. We have before us two witnesses—Timmons witnesses—who are not positive in their identifications of these defendants, especially defendant Fontenot, only defendant Ward. On the basis of a zero to ten, Lenny Timmons gave us a six. The other witnesses—Ms. Wise, Moyer—have not connected the defendants with this store but with another store. They agree it’s on the same night, but I ask the court, is that sufficient to show that these defendants were involved with this crime?

“Even assuming for one moment that the state has presented evidence beyond a reasonable doubt to show that there was the death of a person in this case, I ask the court to search the evidence—even circumstantial evidence—and find where there is any evidence showing that these two individuals were involved in the conduct—the cause of death—of Ms. Haraway, even assuming that there was a death. The instruction is clear, your honor. It says, ‘Such proof must consist of evidence which is wholly independent of any confession or admission made by the defendants.’

“Your honor, we talked to the jury in this case, and told them that they were going to have to search their souls. This is the kind of case where we feel strongly that the state has not proven a corpus delicti. They have not proven the death. There is no body. I realize that they can show it circumstantially, but they have not proven it beyond a reasonable doubt. Even assuming for one moment that they have proved that, I ask the court to search the record and find that these two individuals caused the death. It says, ‘And the fact that her death was caused by the conduct of another person.’ I respond to the argument of the state.”

Austin left the lectern. George Butner adopted his argument on behalf of Karl Fontenot.

“Court’s going to overrule the motion,” Judge Powers said immediately. “I think there is sufficient circumstantial evidence by which the jury can find the corpus delicti, and I will overrule the objection at this time.”

Bill Peterson, at the prosecution table, nodded. It was as if a weight had been lifted from his chest. A feeling of serenity flooded through him. The tapes would be admitted as evidence—all of them. He felt confident now that he would win.

Judge Powers would say, after the trial, that the ruling had been, in his own mind, “a close call.” But if he had, indeed, agonized over the issue, he had made up his mind before Austin presented his arguments. Austin said later that day, “Before I started, the judge said, ‘Let’s get the corpus delicti argument out of the way.’ That sort of takes the enthusiasm out of your presentation.”

The jury was returned to the courtroom. Mike Baskin resumed the stand. He said he had read Tommy Ward his Miranda warnings before questioning him on May 1. Asked if Ward had understood his rights, Baskin said, “I can’t remember the exact reply, but it would have had to be affirmative or there would have been no interview.”

He said Ward on May 1 had short hair that was sticking up in the back, with gaps. “It didn’t look like too good of a haircut.” He said Ward had small scratches on his right hand.

The questioning leaped to October 12, to the interview with Ward in the basement of Norman police headquarters. Baskin told how Ward had given a different story that night from the one he had on May 1 about what he’d been doing the night of the disappearance. He said that the ensuing questioning was not intense, that Ward had not been threatened in any way.

It was late Friday afternoon. There would be no time to show the tape that day. The trial was recessed till Monday. The attorneys from both sides, along with Dennis Smith, went into the district attorney’s office, to edit the tape; to excise the part in which Ward was asked to take a polygraph and agreed to do so. Judge Powers drove home to Chandler, to his wife and his own bed, for the weekend.

The county fair was in town at the old rodeo grounds. There were rides, food booths, exhibits. An intermittent drizzle was falling, but Bud and Tricia wanted to get out of the house that night to get their minds off the trial. They took Rhonda, Buddy, and Laura Sue to the fairgrounds, to walk around.

Melvin and Miz Ward stayed home in the house on Ninth Street. In early evening, the telephone rang. Melvin answered it. The woman calling identified herself as Peggy Lurch.

She said she was the wife of Jason Lurch. She said that police investigators had come to their house that day; they had told her husband they wanted him in court Monday morning. Peggy was a friend of Joice, she said; she thought the family should know what was going on. Jason might call later, she said.

When Melvin hung up, he told Miz Ward; she called Don Wyatt at home. Wyatt asked her what she knew about Lurch. She said that Jason knew Tommy. At the preliminary hearing, she said, he had come up to her during a recess and told her, “I know Tommy didn’t do it.”

“What did you think he meant by that?” the lawyer asked.

“I just thought he was being nice,” Miz Ward said. “He knew Tommy, and he knew he wouldn’t do something like that.”

Wyatt kept his own thoughts to himself: perhaps Lurch knew Tommy didn’t do it, because he knew who did; perhaps because he, Lurch, had done it! Wise and Moyer thought they had seen him that night…

“Tell him I’d like to meet with him in my office,” Wyatt said. “Sunday. At three o’clock.”

When Bud and Tricia got home from the fair with the kids, they were told about the call. Soon after, the phone rang. Bud answered. It was Jason Lurch.

Lurch agreed to come to the Wolf house at 2
P.M
. Sunday, and to go with them from there to the lawyer’s office.

But on Sunday, Jason Lurch didn’t show.

13

“MYSTERY MAN”

S
teve Haraway went to Norman for the weekend, to spend time with his friends. Karl Fontenot spent Saturday night making picture frames out of empty cigarette packs. Tommy Ward joked about the case with a friend, who was in jail briefly for driving without a valid license.

“When I get out of this mess,” Tommy said, “I’m gonna get me a police escort out of this town. When I get rich, I’m gonna buy me a brand-new pickup—and I’m gonna paint it gray primer.”

On Sunday, after church, Bud and Tricia waited at home for Jason Lurch. Two o’clock passed, and two-thirty, and three. Lurch did not appear. They went to Wyatt’s office without him.

Bud went over the testimony he would swear to about Tommy’s having short hair at the time. He said that on Saturday, April 21, late in the afternoon, Tommy had come by the house to borrow five dollars, because he had a date that night and was broke. He was wearing a baseball cap and looked different; no hair was falling from beneath it.

“What happened to your hair?” Bud recalled saying. Tommy, he said, swept off his baseball cap with a flourish, and said, “Ta-da,” and did a full, bowing turn, showing off his new short haircut.

The attorneys were much impressed with Bud; he was gentle, soft-spoken, a solid citizen; he’d held the same job at the feed mill for six years; before that he had worked as a bookkeeper for the city of Ada.

He was a leader of his church. They could not ask for a better witness. Except that he was Tommy’s brother-in-law.

Bud told them he was convinced that Tommy was innocent.

Richard Kerner arrived at the law office, bringing Jannette Roberts; the lawyers went over her testimony about the Polaroid pictures of Tommy and Karl with short hair. Then Wyatt turned to Kerner.

“Find Jason Lurch,” he said. “Give him a subpoena. See if you can get him down here to talk to us.”

Wyatt told the investigator to explain to Lurch the lawyer’s current theory: that Lurch had done nothing wrong; that he had been in J.P.’s the night of the disappearance, shooting pool with someone who looked like Tommy Ward, someone with a red-and-gray-primer pickup; that the pickup at McAnally’s—described as grayish-green—was different; that the two incidents were not related. Tell Lurch he had nothing to fear from the defense, Wyatt said.

But Wyatt feared that the district attorney had already gotten to Lurch, and that to remain uninvolved in the case, he would deny being at J.P.’s that evening.

They had no idea of Lurch’s whereabouts. The investigator set out to find him.

Wyatt and Austin met the same afternoon with the psychiatrist from Oklahoma City who had interviewed Ward in his cell, had given him a battery of standard tests. They were hoping he would say that Tommy, psychologically, was incapable of committing such a crime.

The doctor told them that on the basis of his tests, he felt Tommy was below normal in intelligence; that he had a lot of insecurities, neurotic problems, bundled up inside him; that he could easily be programmable by the police. But he could not say for sure that that was what happened. He could not rule out that Ward might have done it. He thought, in fact, that he might have, he said.

The lawyers were disappointed. They felt the young, bearded shrink was making sure he would not be asked to testify.

They decided that he wouldn’t.

When he left the office that evening, Wyatt’s mind turned again to the man in the back of the courtroom. The “mystery man,” the
Daily Oklahoman
had called him, after the playing of the Jim Moyer tape. No lawyer likes an unknown quantity at a trial. “I’m afraid of Lurch,” Wyatt said.

DAY SIX

A video screen was already set up in the middle of the courtroom, facing the jury box, as the jurors took their places in the morning. A smaller video screen was placed on the judge’s bench. The spectator section was full.

The overhead lights were turned off. There were no windows in the courtroom. The only light was from the corridor, coming in through the small glass panels in the doors.

The videos were switched on. In near darkness, the jurors watched the screen facing them. The spectators and the press could see the screens at oblique angles.

The image of Tommy Ward appeared on the screens. He was seated, wearing a light-colored athletic shirt, blue jeans, sneakers. His questioners in this October 12 tape, Detectives Dennis Smith and Mike Baskin, were not visible. Only their voices could be heard; they spoke softly most of the time. When, for about half of the hour-and-forty-five-minute tape, Smith held a picture of Denice Haraway up in front of Ward, the back of the picture appeared on the screen as a dark rectangle.

The jurors saw Ward being told his rights, and saying he did not want a lawyer. They saw him tell a different story of what he’d been doing the night of the crime than he had told the detectives on May 1. They heard him say that the first time he was questioned, he had been confused about the dates. They then saw him deny repeatedly, for more than an hour and a half, that he’d had anything to do with the disappearance, or that he knew anything about it.

They did not see any reference to a polygraph.

When the tape ended, there was a short recess; afterward, Mike Baskin resumed the witness chair. Under questioning by the assistant D.A., Chris Ross, Baskin admitted letting on during the interrogation that he knew more about the crime than he did; this was standard procedure, he said. Ross asked about the incident of bringing the skull and bones from the college to the jail; he knew that if he did not bring it up, the defense would. Baskin said they had done this to try to learn the location of the body.

As they walked down the stairs for the lunch recess, Ross and Baskin, who looked somewhat alike, were joking.

“Well, Baskin, did I minimize your damage?” Ross asked.

“No,” Baskin said, “you’ve thrown me to the wolves.”

In the corridor, Melvin Ward was standing by himself, smoking a cigarette, looking shaken. He had left the courtroom while the tape was on, because, he said, he could not bear to watch this “police badgering” of his brother.

In the afternoon, Don Wyatt cross-examined Baskin. He asked if he had lied to Ward on the tape when he said there were witnesses. “Part of it was lies,” the detective said. Wyatt pressed the point further, saying a claim that the police had a statement given by a witness under oath was “an absolute, bald-faced lie.” Baskin said he would call it “a poor choice of words.”

Wyatt walked to the defense table. He opened the paper sack that had been carried into and out of the courtroom for four days. He pulled out a skull and some bones.

“Wasn’t this the same mind games,” he asked, “as when you brought this into the cell at night?”

If the jurors were startled by the skull and bones being produced in court, as Wyatt had hoped, there was no indication of it. They continued to watch impassively.

Baskin conceded that bringing the skull to the jail was not proper police procedure; he said the district attorney had chewed him out about the incident several times. “I agree that probably I shouldn’t have done it, and it was a mistake,” he said.

George Butner focused his cross-examination on the notion that all of the major statements in Tommy Ward’s subsequent confession had been planted in Tommy’s mind by the police during the October 12 questioning: the ideas that there had been two men, a pickup, a kidnapping, rape, murder, that Denice had screamed, had cried, had run away, had slipped and fallen. Punching his fist into his hand, he enumerated how each of these facts or actions had been contained in the police questions on this tape, as when the detectives asked: Do you think she screamed? Do you think she tried to run away?

Butner asked how the police could not have known what blouse Denice had been wearing until after the confession tapes were made, since Ada policeman Richard Holkum had seen her that night. Baskin replied that communication in the Ada P.D. was not well coordinated.

The detective conceded that fingerprints were never taken at the scene. He said a cigarette found burning in an ashtray at McAnally’s had been discarded before he arrived. Don Wyatt suggested that since Denice Haraway did not smoke, the cigarette might have been the perpetrator’s; and that through saliva tests, they might now know the blood type of the perpetrator—if such tests had been done on the cigarette. Wyatt noted that the man leaving with the girl had opened the glass door, according to the eyewitnesses, and that glass is the very best surface from which to take fingerprints.

The next witness was Jim Allen, who had been an inmate in the county jail in December of 1984. He was a trustee, a cook, and could wander around inside. He said Tommy Ward had told him in the jail that Ward and Marty Ashley had abducted and raped and killed Denice Haraway, and that Ashley had dumped her body into the Canadian River. He said he and several detectives had gone out in that area to look for the body, but had found nothing.

It was 4:20
P.M
. Detective Captain Dennis Smith took the stand, the fifty-first witness for the state. He was wearing a beige suit, a yellow button-down shirt, a striped tie. Under direct examination, he reviewed his involvement in the case, from the night of the disappearance to the present moment. Of the October 12 questioning, he said he had attempted to bluff Ward, in order to elicit information. He said this was a common procedure, “to try to get at the truth.”

Of the skull incident, he said that when, around October 25, he pulled the bones out of a sack in front of Karl Fontenot, “Karl stepped back and asked if Tommy had given a confession, and you found her at the river.”

The questioning moved to the January 9 story by Ward that Denice Haraway had run away with Marty Ashley. An audiotape of the statement was played for the jury. Late in the tape, Ward said he hadn’t known what Denice Haraway looked like, and that Jim Allen got hold of a picture, to show him. At the defense table, Don Wyatt whispered to Butner, “That’s it!” And he wrote in large capital letters on a pad: “ALLEN PLANTED THE STORY.”

Also on the tape, the jury heard Wyatt ask Ward: “You never told Karl before today about your dream?” And Tommy said, “No.”

Richard Kerner’s gray 1985 Mercury Marquee glided smoothly along State Road 99, heading south, away from Ada. He was going to find Jason Lurch.

On Sunday he had located Lurch’s grandmother in an outlying town; she did not know where Lurch was living. On Monday he sought out other relatives, in decrepit houses in town. Early in the afternoon, in exchange for half a pack of cigarettes, someone told him Lurch was working as a cowboy, breaking horses, in a village twenty-five miles south of Ada. “Go to the store, and down a road, and there’s the place where Jason is at,” he was told.

Kerner followed the directions. He found the lone store in the village, drove a short distance down a dirt road to a house. Three men in their twenties were standing in the open space in front of it, talking. Flat land, parched by the drought, spread in every direction.

Kerner got out of his car and approached them; all three were dressed like cowboys.

“I’m looking for Jason Lurch,” he said. “You know where I can find him?”

The men looked from one to the other. None of them spoke.

Kerner chose the tallest of the three and addressed him. “You Lurch?”

At first there was no response. Then the man said, “Yeah. What do you want?”

The other two edged away. They moved between the investigator and his car. They positioned themselves, blocking the way to the driver-side door.

The sun beat down on the flat land. Kerner did not know if he was in trouble or not. He could feel the extra weight he had let accumulate around his middle in recent years; he was aware that he was fifty-two, a grandfather. He thought: years ago I could have taken on three guys, but not now.

“I’m a legal investigator, working for Tommy Ward’s attorney, Don Wyatt,” he said. “The attorney would like to talk to you.”

“What about?” Lurch said.

Kerner told him what about. Lurch said he did not think he wanted to talk to the lawyer.

Kerner persisted. He told Lurch how he might be able to help out his old buddy, Tommy, who was in a jam. He wasn’t committing himself to anything, Kerner told him. Why not just come see what Don Wyatt had to say?

After half an hour, Lurch wavered. He said he had no transportation. Kerner said he would drive him to Ada, and bring him back afterward.

Lurch agreed.

They climbed into Kerner’s car and, mostly in silence, rode north.

When court adjourned for the evening, Wyatt, Austin, Butner, and Willett stood talking in the parking lot across the street. Leo Austin was extremely dismayed by Ward’s Ashley tape; he felt several of the jurors, hearing these lies, had already made up their minds that Ward was guilty. Butner also seemed down, even though things appeared to be going well for his client; there had been no evidence yet against Fontenot.

“What’s going on at your office tonight?” Butner asked.