The Dreams of Ada

by Robert Mayer

  “Okay,” Bill Peterson said. “And did you relay this information to the police?”

  “Yes, sir,” Holkum said.

  “Okay. Did you—was it anything that they already didn’t know?”

  “At that time,” Holkum said, “I don’t know if they had the information already or not.”

  There was little cross-examination. The defense attorneys were thrilled with Holkum’s testimony; they had not known of his existence. They had tried hard to get Janet Weldon to say she had told the police about the blue-flowered blouse soon after the disappearance; she had insisted she had not. Now an Ada police officer had admitted he’d seen the blouse. This would buttress their planned arguments that the police had fed the suspects the information on the tapes—including the critical, detailed description of the blouse.

  It appeared to some that the district attorney had made the first blunder of the trial in calling Richard Holkum to the stand. Bill Peterson didn’t think so. He did not know if the defense attorneys knew of Holkum’s stop at McAnally’s; he could not risk their suddenly calling him to the stand later. That would look as if the prosecution had been trying to withhold evidence.

  Karen Sue Wise, the clerk at J.P.’s, who had supplied most of the details for the composite drawings, was called next. She told of the two young men shooting pool in her store that night, acting weird. She identified Tommy Ward positively as one of them. She said she could not remember what the other one looked like. The truck outside she described as “mixed red primer and gray primer.” Asked why she remembered Ward, she said, “His eyes. He was staring at me, watching me. It scared me real bad.”

  Ms. Wise was questioned and cross-examined at length. Don Wyatt showed her a composite drawing—the one he had drawn a moustache on. Then he showed her a photograph of Marty Ashley. He asked if this man had been in her store that night. She agreed that the pictures were similar. But she said, “I know him, and that is not the man.”

  “She knows Ashley!” Wyatt whispered excitedly to George Butner. But later Ms. Wise amplified. She said she had gone to school with him, knew his appearance, but did not know his name.

  She admitted seeing a man in the back of the courtroom during the preliminary hearing who looked familiar. “I recognized a familiar face,” she said. “I guess I was just scared.”

  Cross-examined by Butner, she said the cowboy she had seen loitering one night outside her apartment “resembled” the man in her store on April 28. Butner placed his hands on Karl Fontenot’s shoulders as he sat at the defense table. “Was Karl in your establishment on April 28, 1984?” he asked.

  Ms. Wise replied, “I don’t know.”

  Bill Peterson, on redirect examination, referred to the man outside her apartment who had frightened her. “Was that the person in J.P.’s that night?” he asked.

  Ms. Wise said, “I don’t know.”

  As they broke for lunch, Tommy Ward felt things were going well. “I guess the Lord is starting to answer my prayers,” he said.

  Bill Peterson was also feeling good. He asked a journalist, “Any stuff sticking today?”

  Peterson called Jack Paschall, the ECU professor and part-time employee at J.P.’s, who had joined Karen Wise at the store that night. A dark, intense man with sideburns and a moustache, Paschall again identified Tommy Ward as one of the men in the store that night. He recalled attending a lineup on November 8, picking out number 6—which was Ward—and saying to Gary Rogers, “If it’s not him, it’s his twin brother”; then adding, “No, it’s just him.”

  He had never identified the other man, he said, and still could not do so. But of Tommy Ward, “I’m sure within the limits of human frailty.”

  Cross-examined, he told of two conversations with Richard Kerner, in which he had been shown photographs of two different trucks. He said he could not rule out either, that some of the details he recalled about the truck could be wrong.

  Wyatt showed him a Polaroid picture the police had taken of Ward when they first questioned him on Tuesday, May 1, three days after the disappearance; his hair was very short. Wyatt noted that the disappearance had occurred on a Saturday night, and that Ada’s barbershops were closed on Sundays and Mondays. He asked if Paschall would stick to his identification of Tommy Ward even if it was proved that his hair had been short on April 28. Paschall said he would stick to his identification, even then.

  On redirect, Assistant D.A. Chris Ross observed that Ada’s barbershops are open on Tuesdays.

  The next witness was Jim Moyer, the gas station attendant who said he had stopped by McAnally’s for cigarettes about 7:30 P.M. and had seen two men acting suspicious there. He said he was sure one of them had been Ward; he was not sure about Fontenot. He recalled on cross-examination the man in the back of the courtroom at the preliminary hearing, who looked like the man in the store with Ward.

  Wyatt asked if Moyer recalled telling Richard Kerner, “I may be wrong. I may be helping the wrong side here.” And he introduced the tape recording, which had been made without Moyer’s knowledge; this was the first he knew of its existence. Judge Powers allowed the tape to be played for the jury. They heard Kerner ask, “You are reasonably sure the guy at the preliminary with ‘Lurch’ on his belt is the second man and he knows Tommy and spoke to him at the preliminary?” And they heard Moyer answer, “Right.”

  “I wasn’t sure about Fontenot,” Moyer said after the tape had concluded. He told of trying to reach the D.A. all summer to tell him this, without success. He said that during the preliminary hearing in the winter he had told a detective about “Lurch,” but that no one ever came to ask him more about it.

  Of the truck he had seen outside, he said he’d seen no one else in it, and that there was nothing unusual about it—it had a tailgate.

  The next witnesses, Lenny Timmons and David Timmons, told in detail about driving up to McAnally’s and finding the clerk missing. They repeated that they had seen nothing unusual about the couple leaving. Lenny Timmons repeated about Ward that on a scale of one to ten, his certainty was a six. “It may or may not be the man,” he said. About the woman, he said, “Nothing was apparent to me that she was being forced.”

  “Everything looked normal?” Wyatt asked.

  “Yes.”

  David Timmons said the man had his arm around the woman’s waist. He said when the pickup left, it went east, away from town. He, too, saw “nothing unusual” about the couple leaving.

  All through the testimony the jurors watched the witnesses, and listened—except for one elderly man, juror number nine, who sometimes looked at the ceiling; and one young man, juror number one, who stared intently, with narrowed eyes, at Ward and Fontenot.

  It was 6:15 when the judge recessed the proceedings until morning.

  DAY FIVE

  Gene Whelchel led off. He echoed the testimony of his nephews, the Timmons brothers, about how they had found the clerk missing from McAnally’s. He said he did not at first realize that the woman leaving was the clerk; but that later, when he looked at the driver’s license, he realized it was she.

  Sergeant Harvey Phillips, the first officer on the scene, testified to what he found there. When he was through, Don Wyatt approached the lectern with a magazine in his hand. There was a hint of scorn in his voice as he asked, “Are you the same Harvey Wayne Phillips that was quoted in Startling Detective magazine?”

  The officer said he had never talked to anyone from that magazine.

  Wyatt for a moment looked puzzled, almost stunned. He had not known the author of the article had made up all those quotes. He hesitated, turned, walked back to the defense table. “Startling Detective!” he muttered under his breath, with disgust. He tossed the magazine onto the table and took his seat.

  Two new witnesses, Arthur and Mary Scroggins, an elderly couple, testified. Arthur Scroggins said he was driving west on Richardson Loop, in the area of the Holiday Inn, on the night in question when, about nine o’clock, a gray-primer pickup passed them, go
ing west, at a high rate of speed. Mary Scroggins said that as the truck sped by she noticed three people in the pickup, and that one had blond hair. She did not know if they were male or female, she said.

  The manager and the owner of McAnally’s testified about Denice Haraway’s fine work habits, her reliability.

  Then the courtroom was cleared. Bill Peterson was preparing to introduce the tape of Tommy Ward being questioned on October 12. But there was a place on the tape where Dennis Smith asked Ward if he would take a polygraph examination; and any reference in court to a lie-detector test could lead to a mistrial. Judge Powers wanted to view the tape alone before deciding what to do.

  A video screen was set up in the courtroom. With the jurors already gone, the judge cleared out the spectators and the press.

  In the corridor, a lady reporter from a radio station looked over her notes, to phone in a report. She had developed her own shorthand; she did not like the defense attorneys, did not use their names in her notes. Instead she referred to them as “HD 1” and “HD 2.” “HD” stood for “Hot Dog.”

  Detective Captain Dennis Smith was not permitted in the courtroom, because he would be a witness. He spent much of the time standing in the corridor, finding out during recesses what was happening inside. Now, with the judge busy viewing the tape, Smith went to the Feed Store for some iced tea. He knew the tape was more than ninety minutes long; he’d been there.

  As he sipped his tea, a lawyer not involved in the case came in. He razzed the detective about the lady on the jury whose ex-husband was in jail. “The most important thing in any case is who you got in that box,” the lawyer said.

  Smith was thinking not of the jury box, but of the bag on the defense table. He was wondering what was in it, for Don Wyatt to bring it in and let it sit there every day. He was pretty sure he could guess—the bones and the skull they had brought to Tommy Ward’s cell. He was not overly concerned. He was hoping the incident might even prove useful with the jury—by showing that the police had done everything they could to recover the body for the family.

  The lawyer, sitting at another table, came over again. He told the detective of a T-shirt he had seen, that he hoped to get. The T-shirt said, “Innocent Until Proven Broke.”

  The October 12 tape was the one in which, for almost two hours, Tommy Ward declared his innocence to Detectives Smith and Baskin, while Smith was holding in front of him a large picture of Denice Haraway. After viewing the tape, Judge Powers decided to admit it as evidence, with the reference to the lie-detector test excised. The defense attorneys were joking happily as they emerged from the courtroom and crowded into the elevator.

  “We’re on a roll!” George Butner said.

  “We sure are,” Wyatt agreed. “That’s the best evidence we’ve got!”

  So why was Peterson entering it?

  “That’s what the judge said,” Don Wyatt noted. “The judge said, ‘Why do you want to enter this?’ Peterson said, ‘I want to enter it.’ Heck, we’re not objecting!”

  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.