by Robert Mayer
On the way to Wyatt’s office, they stopped at the house on Ashland to pick up Jimmy and his girlfriend, Nancy Howell, who were living there; they hoped also to find Willie Barnett and bring him to the meeting, but he was not at home. It was 1:30 in the afternoon when they gathered in Wyatt’s plush office. Miz Ward, Joice, Jimmy, and Nancy Howell sat nervously in chairs around the perimeter of the office. Wyatt sat behind his large desk, would stand sometimes and come around and sit on the front of the desk to address them, then go back and sit in his chair. Out the windows behind him, beyond the sloping lawns, they could see the midday traffic passing on Arlington. On the wall across from the desk a grandfather clock tracked the passing minutes. They were attentive while Wyatt explained about the judge withdrawing from the case, about how all the motions would have to be argued again when a new judge was appointed. As he reached the major points he wanted to make, he spoke simply and carefully, like a teacher in front of a class; he knew that the complexities of the law were alien to the people in front of him.
He began by explaining about his need for a transcript of the preliminary hearing; this was essential, he said, so that at the trial he could confront witnesses who might be changing their story. He said the state, he, and Fontenot’s attorney had agreed to split the cost three ways; depending on its length, the transcript would cost each party about $700 to $800. Miz Ward noted the amount. Then he turned to the next item.
“Now, we’ve got a young boy over there in the county jail who’s told me, and Mike, and anyone else who would listen, different, conflicting stories. One day he’ll give me a story about so many boys involved in this, that, and the other. This is the way it was. The next day he’ll give me a different story. He’s given us six or seven different versions of what actually occurred. All the way from ‘I don’t know anything about it’ to ‘I was there but somebody else did it.’ I don’t know what’s true and what’s not true. I do know that he’s given some bits and pieces of factual information that, if true, could be proven, and if proven, might give him a defense. But I have no way to run out and find these people, track them down, interview them, check out these leads. Your lawyer doesn’t do that.”
“Yeah,” Miz Ward murmured softly.
“I can arrange for that to be done. But if I arrange for that to be done, it costs you. Private investigators check these things out. If—if—Tommy is guilty—and I don’t know that he is—if Tommy is guilty, I feel very strongly there was a third boy involved. All the facts that cannot be disputed would indicate there is another boy in addition to Tommy involved. Or in place of Tommy.”
“Well, there was just two of the boys charged,” Miz Ward said.
“True,” Wyatt said, “but we’ve got a vehicle. Nobody ever answers the question of whose vehicle it was, or where is it.”
“That’s the big piece that’s not fittin’ in this puzzle,” Nancy Howell said.
“My feeling is that that piece is a third party, another person,” Wyatt said. “I don’t know how to prove or disprove that. But I’ve got some vibes on some recent allegations made by Tommy, and various statements, that if I could get private investigators investigating, they may turn up something. Tommy at one time kind of spun the yarn about the boys that moved to Tulsa, and had a truck. I’m not so sure that’s a yarn. The police checked it out, but you’ve got to realize that one of the boys involved was from a very prominent family. I’m not sure how close the police checked it. I would prefer to have a private investigator check it. Someone who doesn’t know Dicus from Adam, and could care less; they just want to find out what the truth is. But there are lots of little bits and pieces that he’s given us that need desperately to be researched and checked. Every stone needs to be turned over. We can’t rely on Tommy telling us what happened, because Tommy either doesn’t know, or refuses to tell. Or maybe he has told, and it’s somewhere in one of the various stories he has told.”
“I visited him Sunday,” Miz Ward said. “He’d tell ya. I told him, ‘Tommy, if you know where she is, even if she’s dead, please tell me.’ He said, ‘Mama, I don’t know.’”
“That’s why we need an investigator,” the lawyer said.
He went on to tell them that an investigator would cost money; he could not say how much—it would depend on the time he had to put in; and that they would have to raise the money. He had in mind an outfit in Oklahoma City called K-Mar, he said, which had done work for his firm before, at cheaper rates than another firm they had used.
“The point I’m getting at,” he told the family, “is, the only money you have is tied up in your house. You can’t afford to pay me the rest of the fee. You can’t afford to pay for the transcripts, you can’t afford to pay for an investigation…I’m not interested in the payment to me at this point. I’m interested in paying the expenses for the transcripts, for the investigators. What I’m saying is, don’t send me up to defend him with my hands tied, without any help. Whether you can pay me or can’t pay me is secondary right now. What I’m worried about is, let’s get the case prepared. I don’t need to sit here holding your house. If you can, use it to get the money so you can pay these expenses. All right?…I’m not in this for my health, either, but the main point right now is, I don’t want to go try this case without being prepared. I can stand to try it without being paid a lot better than I can stand to try it without being prepared…I want to find that truck. I think if we can find that truck, we might have a defense.”
Miz Ward said she thought Joel might be able to raise the money needed immediately for the transcript; for the rest, they would go to a bank or finance company and try again to borrow money against the house.
“Things are looking good,” Wyatt told them, referring to the news that Judge Jones had withdrawn. He was hoping, he said, that a new judge, from another county, might grant a change of venue closer to his home, away from all the publicity in Ada. “That would be the best thing that could happen to us,” he said.
“It’s slow, I realize. But we’ve got to start getting ourselves ready…We’ve got to start preparing a defense. I thought I could do it with Tommy. I think we should just leave Tommy where he is and not worry about Tommy putting together his defense, because I don’t think Tommy knows what is true and what is not true. Or if he does, he isn’t going to tell. We will become confused listening to Tommy.”
The others laughed softly.
“Yeah,” Miz Ward agreed.
“The thing that gets me,” Joice said, “I was at home, and Tommy was with me that night. ’Cause he took care of my kids. What gets me so confused…”
“Can you stand up in front of a jury,” Wyatt interrupted loudly, “and say absolutely, positively, ‘I know as a fact that on this night, at this time, Tommy was with me’?”
“Yes,” Joice said, “because the next day I told Tommy that I was glad you was home with me, and he looked at me. He goes, ‘I don’t care what they say, they’re going to get me anyway.’ Them’s his exact words. He goes, ‘They’re gonna get me anyway.’”
“The next day?” Wyatt asked.
“The next day. That’s when they picked him up, the next day.”
“No, that was Monday,” Miz Ward corrected.
“On Monday,” Joice said. “Because they was harassin’ him anyway.”
“Prior to her being missing?” Wyatt asked.
“Prior to her being missing,” Joice said. “They was harassin’ him and pickin’ him up and everthing.”
“He’d be walkin’ down the street…” Miz Ward said.
“He’d be walkin’ down the street,” Joice said, “and they’d pick him up for nothin’.”
They talked of Robert swearing that he and Tommy had fixed the plumbing under the house that night; Wyatt told Joice to have Robert get receipts from the place where he had bought the plumbing supplies.
“Willie!” Wyatt said. “Anybody know where Willie is?”
“We came by his house, and he had just left,” Miz Ward sai
d.
“The elusive Willie,” Wyatt said.
“He’s a real person,” Joice assured him, laughing.
“If you were at home with Tommy during the night there,” Wyatt asked, “did Willie come over?”
“Yeah, Willie was there…Tommy told him not to play with the bird.”
“Will Willie remember that?”
“I think so,” Joice said. “Willie talked to somebody else and told ’em he remembered Tommy telling him not to play with the bird. And Jimmy had come over to the house, too, while Willie was there. Both of them were there.”
“And Tommy was there?” Wyatt asked.
“Tommy was definitely there,” Jimmy said.
“Him and Tommy got in a fight,” Joice said.
“We never got to throwing fists,” Jimmy said. “We was just in a argument. That’s why it brings my memory back to me.”
The meeting went on a while longer, the lawyer urging them to bring in any factual material they could muster. When they left, Don Wyatt had in his mind for the first time the skeletal idea of a defense. First, he had alibi witnesses saying Tommy was with them at the time; but they were all family, except for Willie Barnett; Willie would be the key. Second, if they could find the truck, and tie it to someone other than Tommy…
His first move, after a new judge was named, would be to hire a private investigator, and see what he could discover.
Karl Fontenot’s attorney, George Butner, had no such option. As a court-appointed attorney, he would receive a fee of $2,500 from the state for handling the murder case. There was no money granted for expenses with which to hire an investigator. The U.S. Supreme Court had ruled in the Gideon case, in 1963, that an indigent defendant is entitled to an attorney, even if he can’t pay for one; that was by now an accepted part of American law. But that was as far as the ruling had gone. The state of Oklahoma had at its disposal in this case the investigative arms and personnel of the Ada police department, the Pontotoc County Sheriff’s Department, the Highway Patrol, the OSBI, and the district attorney’s own investigator; but the Supreme Court had never held that an indigent defendant was entitled to what a wealthy defendant could buy: the service of private investigators working to unearth exculpatory facts on his behalf. Butner could only sit back and see what Don Wyatt’s investigator might find.
On Saturday, Joel came down from Tulsa to visit with Tricia and the family. He also had remembered something he wanted them to tell the lawyer. He’d remembered a night a few months before Denice Haraway disappeared. Tommy had ridden his motorcycle up to Tulsa. The bike had broken down, and Tommy stayed overnight at Joel’s house. Before going to sleep they had watched TV. On the news was a story about a young woman who had been hit by a car while crossing a street; the car had dragged her for a quarter of a mile, killing her, mutilating her body. In the early morning hours, Tommy woke up on the living room sofa, screaming. Joel went in to see what was wrong. Tommy told him he’d had a terrible nightmare. It was so real, he said. In it, he was driving the car that killed the woman.
Joel asked the family to tell this dream to the lawyer. He hadn’t wanted to tell it, to discuss the case at all, on the phone; he was convinced the police were tapping Tricia’s phone.
Chris Ross, too, was having dreams.
Bill Peterson had two assistant district attorneys. Ross was one of them, had been for two years and three months.
Ross was twenty-eight years old; his hefty body was topped by a moon face and merry eyes that could lull the unwary; they masked a fierce intelligence, an instinct for the jugular, that would make him a strong prosecutor. The defense attorneys had moved for separate trials for Ward and Fontenot; the prosecution wanted to try them together. If the judge—when one was appointed—granted a separation, the D.A. had decided, then he would try one case and Chris Ross the other. For several weeks now, Ross had been having trouble sleeping because of the anticipation. He would sleep for about forty-five minutes and then wake up, his mind instantly alert and working on the case, so involved the instant he was awake that he was sure he had been dreaming about it, though he could not recall the dreams themselves. The conflicting facts, the images, held his mind the way a trap held an animal; he wrestled, tried to free his mind, but could not. After long hours in the dark, weariness would finally lull him to sleep again; forty-five minutes later he would awaken, prosecuting the case in his head.
Like his boss, he was convinced that Ward and Fontenot had killed Denice Haraway, that they had done it alone, that they had rung the name Odell Titsworth into their stories merely as a scapegoat, that there had been no third person. Believing this, Ross in his sleep-stolen nights found himself thinking over and over about a single statement of Tommy Ward’s, amid all the facts and fantasies and permutations of the case, amid all the bits and pieces from different witnesses that would have to be strung together into a coherent whole to convince a jury beyond a reasonable doubt. Over and over he played in his mind something Tommy had said on the tape. The exchange went like this:
Q: Did she have a bra on?
A: Yes.
Q: What did he [Titsworth] do with it?
A: He took it off later, after I was biting her on the tit.
Of all the vicious details recounted on the tapes, that was the image that kept coming back to Ross’s mind as he waited in vain for sleep. Titsworth, in Ward’s narrative, had at that point already raped her; why would he then be taking off her bra while Tommy bit her on the breast? The answer to that question seemed important somehow—but Ross didn’t know what the answer was, or why it was important. In fact, the question itself was absurd, he told himself, because Titsworth hadn’t been there at all. Still, the image wouldn’t go away, much as he tried to kick at it, as at a worrisome dog, and relax, and sleep.
Tricia stood outside the house in the late April sun, gazing somewhat wistfully up Ninth Street; it was a quiet street that dead-ended a block and a half away; there was little through traffic. Beside her on the patchy lawn was an overturned tricycle, other toys awaiting the return of the kids from school. She could have been any one of tens of millions of housewives across America, except that what she was wishing for, just then, was to see her brother, accused of a brutal murder, come walking down the street.
She recalled how, about three years before, Tommy and another fellow had left Ada to go motorcycling across the country; they had gone to California, then all the way east to the Carolinas, stopping in places to make some money by working in garages, or as dishwashers, or by picking tomatoes. Every so often Tommy would call, to let them know he was all right. One day after about a year, when they hadn’t heard from him for a while, Tricia and the kids were standing in front of the house, right where she was standing now, when out of the quiet distance they saw Tommy come walking up the street. They’d had no idea that he was on his way home. The kids jumped up and down with glee, and ran to meet him, and climbed all over him. Tricia waited till he approached, and hugged her around.
Standing there now, remembering, Tricia was overcome by the memory; she wanted more than anything to see Tommy come walking down the street again.
Donald Powers lived in the tiny village of Chandler, in Lincoln County, about eighty miles due north of Ada, near the old Route 66. He had been a judge for twenty-eight years, but had retired two years before. Since then he had spent as much time as he could playing golf. But in Oklahoma it was not uncommon for a retired judge to be called back into service from time to time, to help out in a county where the court calendar had gotten backed up, where there was an overload of cases. So Judge Powers was not surprised when the chief justice of the state of Oklahoma called and asked if he would take on a murder case in Pontotoc County.
It was the Haraway case, the chief justice told him.
Donald Powers had never heard of it.
The retired judge said he would take the case if it fit in with his schedule. He was told that a trial date had not yet been set. Why then, yes, he would take it,
Judge Powers said.
The chief justice thanked him, and said it was his. The attorneys in Ada were notified. They didn’t know Judge Powers. Bill Peterson, asking around, learned that the judge was a conservative, a strict constructionist of the law who ran a tight courtroom; the D.A. wanted nothing more. Don Wyatt and George Butner were hoping for someone who had not been exposed to the fierce emotions surrounding the case; they, too, had gotten their wish.
Judge Powers got in touch with the Pontotoc County court; he requested a copy of the transcript of the preliminary hearing in the case, and of all pending motions. The transcript—five volumes, 1,090 pages—was not quite ready; the motions were sent to him. In the quiet of his home, eighty miles from Ada, the judge began to prepare.
Sunday, April 28, 1985. One year to the date of the disappearance. The anniversary was called to the attention of the town in a front-page story by Dorothy Hogue in the News.
UNSOLVED, VIOLENT
CRIMES HAUNT ADA
the headline said. The story summarized briefly the Haraway case, and the Debbie Carter case that preceded it. The last paragraph of the Haraway segment said:
Although authorities have searched many local areas, both before and after the arrest of Ward and Fontenot, no trace of Haraway has ever been found. However, Det. Dennis Smith said he is convinced the case is solved.