by Robert Mayer
Panelist one was excused, for having an opinion; so were panelists two and three; panelist four was excused because a nephew was married to Melva Ward.
Number five said that although he had heard of the case, he knew nothing about it. “I don’t take the local paper or watch the local station,” he said. “I have a satellite.”
There was laughter again. He was allowed to remain, for now.
Panelist six had an opinion. Number seven knew Betty Haraway, Steve Haraway’s mother. Number eight knew some of the witnesses.
On and on it went, through the morning. There was a recess for lunch. Then it continued through the long afternoon. As each panelist was dismissed for cause, the clerk reached into her box, pulled out another number, another name. Another member of the panel moved from the thinning crowd in the spectator section into the jury box: often to leave soon after, excused for cause, for having an opinion. But as the day wore on, more and more said they did not have an opinion; or that if they did, they could set it aside, and weigh only the evidence in the case as it would be presented in the courtroom.
One woman said that Tricia Wolf, Tommy Ward’s sister, shopped in the store where she worked. Don Wyatt stood and said the woman would be called as a witness; she was excused. Another said she thought she had gone to grade school with Tommy Ward, but she had no opinion; she was allowed to remain, for the time being.
A man named Keith Hildreth said he was the personnel manager at the Evergreen feed mill, and that he knew Tommy Ward’s brother-in-law Bud Wolf. The judge asked whether, because of this acquaintance, if Bud Wolf were called as a witness, the juror would give more or less credence to what Bud Wolf said than to the word of other witnesses.
“I would give his word more credence,” Hildreth said.
He was excused for cause. The judge explained to the others that if he asked that question of them, he wanted to know if they would give more or less credence to a witness—but they should not say if it was more or less.
Laughter punctuated the growing weariness.
More were called; more were dismissed. Evening was approaching. The judge recessed the case till 9 A.M. He warned the panelists, on their honor, not to read or watch news reports of the proceedings; not to discuss the case with anyone, not even their spouses.
The remaining panelists filed out, quietly.
That night, many of the participants relaxed in front of their television sets. It was the start of Monday Night Football, and the Dallas Cowboys were playing; Ada, only 180 miles from Dallas, was Cowboy country. A few attended a benefit concert for Valley View Hospital given by country singer Hoyt Axton, whose brother, John, lived in Ada; the singer was a frequent visitor.
In the morning they were back.
DAY TWO
The questioning of the panel resumed.
Tommy Ward was wearing Bud’s three-piece beige suit. Karl Fontenot was wearing the dark blue suit that Tommy had worn the day before.
A panelist said Dennis Smith was investigating a crime in which her husband had been victimized; she was excused. Another had pending business with the D.A.’s office; she was excused. A third was close to Odell Titsworth’s family; she was excused.
There were seats available now in the spectator section; the press, allowed to stand the day before, reclaimed the front row. There were seven news reporters present: Dorothy Hogue of the Ada News, others from the local TV and radio stations, from the Daily Oklahoman and the Tulsa World; by happenstance, all seven were female.
Miz Ward, Melvin, Joel, Kay, Joice sat behind them. During a recess, Joel told Don Wyatt that one woman on the panel, Mary Floyd, stern-looking, gray-haired, used to be a teacher at Latta Elementary School, and that she had disliked Tommy when he was little. Wyatt pondered the information; he was hoping to keep Mary Floyd on the jury. Her daughter was going to be a witness for the defense. He told the family this; they left it up to him.
After the recess the defense attorneys used a number of their peremptory challenges; Wyatt let Mary Floyd remain.
He had, in his mind, no profile of the jurors he wanted; he went by his gut reactions. His belief about the jury was, “When it’s right, you’ll know it.”
At the prosecution table, Bill Peterson would be satisfied with “upstanding citizens, with a stake in society.”
The questioning continued. Every panelist was asked, by the judge or by Peterson, whether, if there should be a conviction in the case, they would have any problem imposing the death penalty, which the jury would have to decide. Of more than sixty-five panelists questioned, only one, a slight, gray-haired woman, said she would have a problem.
“No matter how strong the case?” the judge asked.
“I don’t believe in taking lives,” the woman said.
She was excused for cause.
Later, Judge Powers would marvel that out of all those questioned, only one was opposed to the death penalty. Twenty years ago, he mused, there would have been twenty times that many, even in Ada.
The Feed Store Restaurant was on Broadway, half a block from the courthouse. It had a large menu. The specialty was baked potatoes with an assortment of toppings. Wooden booths lined both walls; several rows of tables filled the center. A number of the people still on the panel went to lunch there. One of them was a tall, slim, attractive young woman named Shelley Johnson. She was married, had two children, ages five and two and a half; her mother-in-law was taking care of them.
Mrs. Johnson, like many of the others, had been upset when she got her jury notice; she was nervous about being questioned. Now she felt both sides had gone easy on her. Coming to the courthouse the day before, she had not wanted to be selected; now she was hoping to remain; they had gotten her interested.
She had not expected to stay on the panel even this long, because she was so close in age, even in appearance, to Denice Haraway.
“When I got home last night, my husband had the kids fed and dinner ready,” Mrs. Johnson said. “All I had to do was fix breakfast this morning. I could get into that.”
The court session resumed. With seats now available, Tricia was present for the first time. She had just returned from a doctor’s appointment, and was happy; she had not gained any weight since her last visit.
The questioning of panelists continued. Bill Peterson waived the state’s sixth peremptory challenge: the state was prepared to accept the panel now in the jury box, he said.
The defense continued to remove people. Wyatt, Austin, Butner huddled together, going over the names, agreeing on whom to eliminate with their sixth, seventh, eighth challenges.
The state continued to pass.
The defense had one challenge left. The attorneys felt it was as good a jury as they were likely to get, without being able to read their minds. But they had to use up their last challenge, in order to protect their court record. Should they lose the case, and want to appeal on the grounds that a change of venue should have been granted, that an unbiased jury could not be found in Ada, then they had to use up all their challenges.
The attorneys looked from one face to the other in the jury box; they conferred; they looked again; finally they shrugged, agreeing.
They dismissed panelist number five: Shelley Johnson.
The young woman flushed deeply; stood; left the jury box.
“She was making eye contact with the district attorney, but not with anyone at our table,” Don Wyatt said later. “We had to choose someone. Who knows?”
Shelley Johnson, disappointed, went home to fix dinner. In her place a short, dark woman named Janet Williams was called. She answered to the satisfaction of both sides the routine questions: she had formed no opinion in the case; she knew none of the witnesses; none of her family was in jail.
There was no reason to excuse her for cause. At 4:12 P.M., Judge Powers asked those remaining in the jury box to raise their right hands, and he swore in the jury in the Haraway case, a day earlier than either side had expected.
In the
spectator section, about fifteen panelists remained uncalled of the eighty-three that had appeared the day before. Two alternates were called, to sit with the jury, to vote only if a regular juror became incapacitated. The defense was permitted one peremptory challenge for each alternate seat; the attorneys liked both people who were called, but had to dismiss them both, to protect their record. Two more were called, seated, sworn in.
The jury was complete. It was composed of eight women and four men. Both alternates were men. The panel included school teachers, housewives, retired people, a worker at the cement plant.
The judge admonished them, as he would every night, not to discuss the case, not to read of it in the papers or watch the TV news. Then he sent them home. The presentation of evidence would begin in the morning.
As they left, several of the younger women smiled at one another, as if they had made new friends; as if they had passed some inspection, some test.
The library at Wyatt, Austin & Associates was lined with sets of lawbooks bound in deep blue, green, beige, and maroon. Filling most of the room was a conference table surrounded by leather chairs. That night, the members of Tommy Ward’s family were called into the library, one at a time, to prepare the testimony they would give.
Seated around the table were Wyatt, Austin, Winifred Harrell, Austin’s attractive young wife, Shawna, and the newest member of the firm, Bill Cathey. With each witness, Wyatt played himself, asking the questions he would ask at the trial. Leo Austin, tall, serious, played the district attorney, cross-examining the witnesses, giving them a taste of what they could expect in court.
For the most part, the lawyers felt the rehearsal was a disaster.
Kay was called first. She would testify as to how she had cut Tommy’s hair short, above his ears, the week before Denice Haraway disappeared, a week before she and Miz Ward went to Lawton to visit Melva. Young and pretty, she made a good appearance, was open and unhesitating in her replies; she did well. Joel was called next; his testimony would be peripheral; he did all right, once he got the hang of it. Then came Joice, the key alibi witness; and then her husband, Robert. Their story was basically the same, but it differed in many little details—enough that Bill Peterson might destroy them. With each new question and answer, the attorneys grew increasingly exasperated; repeatedly they had to warn the family not to volunteer information, to answer only the question that was asked.
Joice said she, Robert, and Tommy had been at a party at the Canadian River the night before the disappearance; that the next morning Tommy was hungover and feeling sick, and stayed in the house all day, and that she did the same. She said Robert left for work about 2:30. In the evening, she said, Willie Barnett dropped by, and started annoying the bird, and Tommy sent him home; then Jimmy came over, and he and Tommy quarreled about some money Jimmy said Tommy owed him; then he left. She went to bed about eleven, she said; Tommy had never left the house. About one in the morning, she said, she got up to use the bathroom, and there was no water. Robert came up and told her they had shut it off because a pipe was leaking under the house, and he and Tommy were fixing it. She went back to sleep.
Robert, questioned next, said he got home from his job as an ambulance driver at 11:20 that night, and found Tommy asleep on the sofa. He watched television, then heard water running. He checked all the faucets, then went outside; water was puddling from a leak under the house. He did not know how to turn the water off; he woke up Tommy, and Tommy turned it off. Together they spent several hours fixing the pipe, he said.
Most of the discrepancies between the two stories concerned the party the previous night. Wyatt told Robert he would be a strong witness if he and Joice got their memories together, but a disaster if they did not.
Miz Ward was next. She was shy, diffident, mumbling her answers stoically. That was not what the lawyers wanted; they wanted tears. “You know what you sound like?” Leo Austin chided her. “Your attitude is like, ‘Well, I’ve got eight. If I lose one, I’ll still have seven.’ You’ve got to show some emotion up there. Your boy is innocent and they want to kill him!”
Miz Ward mumbled that she would try.
The rehearsals had started at 6:30; now it was past 10:30. There was exasperation in the room. Finally they called in Tricia, in her eighth month, who had been waiting for four hours; Bud was home with the kids.
Tricia was nervous. But her sunny personality, her strong voice, changed the mood; it was as if a dark shade had been thrown up, letting in the light.
Her only testimony would be about the phone call she received from Tommy from the jail the morning after his arrest, in which he had told her, right then, that he had told the police a dream, and they had made him say it was real.
“What else did he tell you?” Wyatt asked.
“He said the police had called him all sorts of names.”
“What names?”
“Oh, you know…names.”
“What names?” Wyatt insisted.
Tricia flushed. She looked down at her hands, folded on her belly; then looked at Wyatt. “I can’t say them,” she said.
“You’ll have to say them,” Austin said. “We want you to say them.”
Tricia thought a moment. “Can I use initials?”
“Go ahead,” Wyatt said.
Tricia flushed again. “S.o.b. He told me they kept calling him an s.o.b.”
“Good,” Wyatt said. “Now say the words. What names did he say they called him?”
Tricia shook her head. “I can’t. I don’t even know if I can say them initials in the courtroom.”
They let it go, for now. Perhaps her obvious sincerity, her inability even to repeat a swearword, would impress the jury. Wyatt, sizing her up as the matriarch of the family, told her how badly most of the others had done. He told her that Joice and Robert had better get their stories together: not to lie, but to get their memories straight, and if they didn’t remember things, to just say they didn’t remember. “They better become good, strong witnesses,” he said, “or else they will inject a lethal poison into Tommy.”
Leo Austin, playing Bill Peterson, had asked each of them, “Wouldn’t you lie to save your brother?” All of them said, “No.” Wyatt told them that he might lie to save his brother’s life. “A better answer,” he suggested, “might be: ‘I would, or I might’—however they felt—‘but I don’t have to, because he didn’t do it! I’m telling the truth.’”
Now Wyatt said to Tricia, “I believe Tommy is innocent. It will be a grave injustice if they convict that boy. But they will, unless we have good witnesses. We can’t perform miracles for you. It has to come from the witness stand.”
Tricia asked if there would be time to do this again one night, after she talked to the others. Wyatt said it depended; if the state ended in two or three days, there would not be time; if the state’s case went into the following week, then perhaps they could.
It was after eleven when they piled into their cars and went home. The lawyers were shaken. They knew these people had not been to college, did not understand the law, had never been in a situation such as this before. Still…
Only Winifred Harrell, driving her van home to Kings Road, felt good. She had never met the family before; their names had been abstractions on subpoenas, voices on the telephone. But she had been impressed, this evening, with Joel; she had been even more impressed with Tricia. No one growing up in that family, Winifred felt, could do what Tommy had said on the tape that he had done. She had begun by believing without doubt that he was guilty; Richard Kerner’s scenarios had raised doubts. Now her conversion was complete. She was convinced that Tommy Ward was innocent.
DAY THREE
The spectator section in the courtroom filled slowly. The Ward family occupied most of one row: Miz Ward, Tricia, Kay, Melvin, Robert, Joel. For a time, Dr. Jack Haraway, Steve’s father, was sitting beside Joel Ward; neither seemed to know who the other was. With the dentist was his wife, Betty, their daughter, Cinda.
Ward and Fontenot entered with their attorneys—Ward in blue, Fontenot in rust. Tommy hugged Miz Ward, who was wearing a full pink dress. Mrs. Haraway watched, expressionless. Dr. Haraway turned his head. All the other Wards hugged Tommy, patted him on the back.
The attorneys for both sides left the courtroom, disappeared into the judge’s chambers. Ward and Fontenot were alone in the front part of the courtroom. No guards were visible.
“If they try to escape,” a girl reporter for a local radio station said, “I’ll take my shoes off and run after them, and kill them myself.”
Ten minutes passed, twenty, thirty. A copper-colored water pitcher on the judge’s bench reflected the recessed ceiling lights in an abstract pattern. The press, the spectators, began to wonder: was a plea bargain being worked out?
“They’d have to pass it along to the defendants,” said Bill Willett, Don Wyatt’s aide, who was standing in the doorway.
Would Wyatt take it, if one was being offered?
“Last night was scary,” Willett said. “And the investigator’s material is so convoluted…”
Nearly an hour passed before the attorneys returned, before Judge Powers took the bench. There had been no talk of a plea bargain by either side. What had occurred amounted to two small victories for the defense.
In the first, Wyatt had learned that state witnesses planned to say Tommy Ward had threatened them, or talked of robbery, on other occasions. Wyatt was convinced these incidents had been invented. His legal arguments were that any such testimony was irrelevant to the charges before the court. Judge Powers agreed; those witnesses would not be allowed to testify.