by Robert Mayer
Butner asked him to describe his nephew. “He’s shorter than me,” Lurch said. “A kind of slight build. He’s got sort of sandy blond hair, parted in the middle. About shoulder length.”
It was the exact description under the composite drawing that was supposed to be Tommy Ward. When asked, Lurch said he did not think his nephew looked like Tommy Ward.
The nephew, Ricky Brewer (name changed), worked for one of the Ada factories. He hadn’t seen him for a while, Lurch said. He said Ricky did have a pickup at the time. It was yellow, he said, and shiny, not primered, and had large wheels front and back. The tailgate was off at the time, he said, because it had gotten dented.
“You ever been in McAnally’s?” Wyatt asked.
“No, never,” Lurch said. “We always stopped by J.P.’s.”
The mood in the room was lightening. Wyatt seemed convinced that his theory was true: that there had been two different sets of people seen, two different trucks; that Karen Wise and Jack Paschall had seen Jason Lurch and perhaps his nephew; that it was mistaken identity. Despondent when court adjourned half an hour earlier, the lawyers now felt exhilarated.
“We want you to testify,” Wyatt said. “You’ve been subpoenaed. You’re under court order, so it’s not really a question of whether you want to.”
“An investigator from the D.A.’s office come out and talked to me Friday,” Lurch said. “He read me my rights first. He asked me about Ricky’s truck. That’s why I didn’t show up Sunday. He made it sound like maybe I was a suspect.”
“Did he give you a subpoena?” Butner asked.
“No.”
They asked if he had ever been convicted of a felony. Lurch said no. Wyatt emphasized how important his testimony could be to Tommy Ward. “You understand that Ward’s on trial for his life here? Your testimony could save a man’s life, who we believe is innocent.”
Lurch said he understood. “I’ll be there,” he said; though he would need transportation. They said Richard Kerner would pick him up.
Wyatt told Lurch he could be held as a material witness; he could be held in jail until it was time for him to testify. “We don’t want to do that,” Wyatt said. “We’re not threatening you. I just want you to understand how important it is that you show up.” If he did not show up, Wyatt pointed out, he could be arrested.
Lurch did not have a telephone where he lived. He said he checked in at the store nearby every few hours. They told him to call in to Wyatt’s office the following afternoon, and each morning and afternoon after that, till they knew when they would be calling him as a witness. They would arrange for Kerner to pick him up.
Lurch said he would do that.
The attorneys seemed reluctant to let him go; he was that important to their case.
George Butner remembered something else. He remembered that Jim Moyer, the other person who had recognized Lurch at the preliminaries, had placed him at McAnally’s, an hour before the disappearance. Lurch repeated that he did not go to McAnally’s: except perhaps in the afternoon sometimes, when his wife would stop by there for food; he never went in the evening, or with anyone else, he said.
There seemed no way around that just now.
“When you appear in court, could you dress just the way you are now?” Wyatt asked.
“I always dress this way,” Lurch said.
“Could you let your hair down, so it hangs to your shoulders?”
“I could do that,” Lurch murmured, as if reluctant.
Lurch had a small stubble goatee; he said sometimes he had it, sometimes he didn’t. Wyatt asked if he would shave it before coming to court. Lurch hesitated, then nodded he would.
Lurch and Richard Kerner left. There was little conversation in the car as the investigator drove him home. The mood, however, seemed friendly.
Butner went to his dinner near Wewoka. Wyatt, Austin, and Willett discussed the day’s events. Despite Lurch, Leo Austin was still pessimistic.
“Some of those jurors are ready to cut Tommy’s balls off right now,” he said. “And they haven’t even seen the bad tape yet. The best we can hope for is a hung jury. And then bail out of the case. And hope the family doesn’t have enough money to retain us again.”
“I wouldn’t belly up to the bar with this one again,” Wyatt said.
The lawyer was still convinced, however, that Tommy Ward was innocent. And he still had faith in his own ability: that somehow he would pull the case out of the fire, would win an acquittal.
Richard Kerner, arriving back at his Ada motel late after taking Lurch home, was disappointed. He dined on crackers from a vending machine. He wasn’t very hungry.
Until this evening, Kerner had been convinced that Tommy Ward was innocent. But now he didn’t know. Why, he wondered, would Lurch come to every day of the hearings, if he had not been involved? That showed an inordinate interest in the case. Perhaps, Kerner thought, Ward was letting Fontenot take the second rap because Lurch was bigger, and tougher; because Lurch had threatened him. Perhaps, he thought, the culprits were Jason Lurch and Tommy Ward.
DAY SEVEN
In the morning Dennis Smith resumed the stand. Wyatt asked him why he had held a picture of Denice Haraway in front of Tommy Ward during so much of the questioning on October 12. “In order for him to know who we were talking about,” the detective said. He described the October 18 questioning as a “low-key type of interrogation.”
Wyatt suggested that Odell Titsworth had been held in jail long after the police knew he was not involved, so he could be used to threaten the other two.
George Butner hammered again at the idea that all of the key elements in the confession tape had been planted in Ward’s mind on October 12. And he focused on Officer Holkum’s testimony, suggesting that Holkum had given the detectives a detailed description of what Denice Haraway had been wearing within a day or two after her disappearance. Smith said, “Apparently we didn’t” pay attention to what Holkum had seen that night; he said no detectives had interrogated Holkum until after October 18. Pressed, he admitted that this had not been good police procedure.
The detective was followed to the stand by Marty Ashley. Bill Peterson asked if he had raped and killed Denice Haraway.
“No, sir,” Ashley replied.
Peterson asked if Ashley had kissed her and driven away with her.
“No, sir,” Ashley said.
Watching, Dorothy Hogue of the Ada News thought: he looks a lot more like the composite than Fontenot does.
But that, she knew, did not mean he’d been involved.
In the afternoon, the state called Gordon Calhoun, a college student from Whittier, California, a sometime worker at Disneyland. At the time of the disappearance, Calhoun had been living in Ada, next door to Jannette Roberts. He was clean-cut and earnest-looking. He testified that on the night in question, he’d had a party at his apartment, but that Ward and Fontenot had not been there.
Calhoun said that in May, he and Fontenot “talked about the Haraway case. Karl mentioned he knew who did it. I didn’t believe him. I had no reason to believe him.”
He said Fontenot was the type of person who always said things that were not to be believed.
On cross-examination, Wyatt handed him Jannette Roberts’s Polaroid pictures. Calhoun was in one of them, with Fontenot, that was dated 4-16-84. He conceded that he was present in the picture.
Wyatt asked him to describe Karl’s hair in the picture, for the benefit of the jury.
“It is above his ears.”
“It’s above the collar, is it not?”
“Yes.”
Wyatt handed him the composite sketch that supposedly was Fontenot. “It does not compare,” Calhoun said. “Not with the long hair.”
Wyatt handed him the picture showing Jannette’s daughter, Jessica, and the Easter basket, hand-dated 4-22-84; and the one, dated the same, that appeared to show Jannette and Tommy. Wyatt asked him who the man on the couch was. Calhoun studied the snapshot closely. “It
looks like Tommy Ward,” he said.
“Tommy’s hair was well up over his ears, wasn’t it?” the lawyer asked. “Cut short, wasn’t it?”
“Yes.”
“If the dates are correct,” Wyatt said, “state’s exhibits one and two [the composite sketches] could not be Karl Allen Fontenot and Tommy Ward?”
“No.”
“Am I right?”
“You’re right.”
Calhoun looked around the courtroom uncertainly. The pictures had been a surprise to him and to the prosecutors.
Wyatt asked if the other picture did not contain “an unopened Easter basket,” and “a little kid standing next to it, kind of anticipating.”
“Yes,” Calhoun said.
On redirect, Peterson, examining the pictures, emphasized that the dates were handwritten, and that Calhoun did not know by whom. Calhoun stated that on April 28 he had seen Karl, and that he had long hair.
Wyatt asked him to turn over the pictures of Tommy, and of the child with the Easter basket, and to read off the last three digits of the code numbers.
Each was 554.
“They appear to have come from the same roll of film, don’t they?” Wyatt asked.
“Yes.”
The two pictures of Fontenot, hand-dated six days earlier, both bore the code 212—different from the Easter pictures.
“If the dates are correct,” George Butner asked, “these photographs are better evidence than your testimony, is that correct?”
“I suppose,” Calhoun said.
It was 4:55 P.M. There was a brief recess. Tommy Ward, who had been praying to Jesus for deliverance, could not help wondering if his life was going to be saved by an Easter basket.
Others in the courtroom were wondering the same thing. The corridors were astir with conversation about this unexpected evidence. Gordon Calhoun was down in the district attorney’s office on the first floor.
When the recess ended, the state recalled Calhoun. Peterson showed him the pictures again. Calhoun said the clothes he was wearing in the picture of himself and Fontenot were the clothes he had worn on a fishing trip to Blue River on Memorial Day. He said the pictures were not taken on April 16, 1984, as they were dated.
The silence in the courtroom seemed almost to stir with relief.
The clothes were cutoff jeans and a T-shirt. Questioned by Wyatt, Calhoun said he wore a T-shirt almost every day, but that he wore the cutoff jeans only about once a month. Wyatt asked if he could have worn the jeans in April. Calhoun insisted the pictures had been taken on Memorial Day.
He admitted that he had talked to Bill Peterson for two or three minutes during the recess.
Like most of the witnesses, Calhoun was excused subject to possible recall. In his case it meant he could not yet go home to California.
The day’s testimony ended with Leonard Keith Martin, who’d been in the city jail in October 1984. As a trustee, he’d been sweeping the floor outside the cells, he said, when he heard Fontenot say: “I knew we’d get caught. I knew we’d get caught.”
Asked whom Karl was talking to, Martin said, “To nobody. There was nobody else there.”
Gordon Calhoun had seemed, to some observers, to be among the most believable witnesses to take the stand. He was neat and intelligent. He’d lived in Ada, attending ECU, for only a short time, and had no roots in the town. Now he lived out west. He appeared to have no personal stake in the outcome of the trial. He was the kind of witness a jury was likely to believe.
The state had called him to discredit one of Tommy Ward’s early stories—that he had been at a party at Calhoun’s apartment that night. Bill Peterson was being thorough, as was his custom. Don Wyatt had jumped at the opportunity to have the Polaroid pictures entered into evidence and verified during the testimony of a strong state’s witness.
Calhoun’s testimony had appeared, at first, to be a major breakthrough for the defense—until after the recess, when he said the Fontenot pictures had been taken Memorial Day, and therefore were falsely dated. That clearly had been devastating to the defense. One picture did have the wrapped Easter basket—but would the jury accept that mute testimony, in light of the doubt Calhoun had cast on the others? That the same roll of film was used did not prove conclusively the pictures had been taken the same day.
The attorneys, hurrying to Wyatt’s office, tried to put these thoughts from their minds. Waiting for them, they knew, were pictures Richard Kerner had taken that day—pictures that had gotten Wyatt excited, that made him think they might have solved the case—with suspects other than Ward and Fontenot.
Their attention returned to Calhoun’s testimony, however, when, at 6 P.M., moments after they arrived at the office, Calhoun showed up there as well.
The young man looked upset, confused. He told Wyatt that his conscience was bothering him. He said he was afraid that during Peterson’s redirect examination, he may have left the impression with the jury that he was sure the “April 16” photos were taken Memorial Day. He was not positive about that, he said, and did not want to leave the wrong impression. He was on no side, he said; he just wanted to tell the truth.
Wyatt’s spirits soared; he was impressed with the young man’s concern. He told him they had two options. They could bring that out when they called him to testify for the defense; or he could go talk to the judge in the morning, and explain his position, and ask the judge if he could go right back on the stand to clarify it. Wyatt told him to do whichever he wanted; he did not know if the judge would go along with the second option.
Calhoun left, to decide what to do.
Wyatt, Butner, Bill Willett, and Bill Cathey went into the library. Wyatt spread before them the new pictures Kerner had taken. The investigator had tracked down and photographed the truck Jason Lurch had mentioned the night before—the truck his nephew, Ricky Brewer, had owned at the time of the disappearance. In the pictures was a pickup, pale gray or beige. It was shiny, not rough—but it had patches of red primer all over it, larger wheels on the back, and had no tailgate. It seemed to the attorneys to fit the description of the truck seen at J.P.’s by Wise and Paschall—even more than the others Kerner had photographed.
Kerner had talked to the nephew as well. He was very cooperative. He was married, had children, worked the night shift at a factory. But he was also about five-eight, slim, with sandy-brown hair, shoulder length, parted in the middle—just like the composite sketch. The attorneys were joyful, began joking. They felt these pictures, combined with Jason Lurch’s testimony, would convince the jury it was they who had been seen at J.P.’s that night.
And perhaps—since Jim Moyer placed Lurch at McAnally’s—it was possible that these two were the killers.
George Butner was elated. For the first time since he took the case he felt there was a chance of getting Ward and Fontenot off. But with two other sets of truck photos already introduced by the defense, he felt they needed to get an identification of this truck from Wise or Paschall.
The attorneys agreed that Paschall probably would say it might be the truck and it might not be—as he had done with the other truck pictures. They decided Karen Wise was their best bet. But they did not know how to reach her; she had been avoiding Kerner.
They decided to call Sue Mayhue, the woman in the D.A.’s office who kept track of witnesses, to ask her for Wise’s phone number. But they knew this would tip off the D.A., who might tell Ms. Wise not to talk to them.
“Ask for three numbers,” Bill Cathy suggested, grinning.
They liked that idea. Bill Willett made a list of several witnesses whose numbers they would ask for, to confuse the opposition, to send them scurrying. He called the D.A.’s office. Chris Ross answered. Ms. Mayhue had already left. Willett looked up her home phone number, and called her there. The line was busy. He called again a few minutes later. There was no answer. The attorneys were convinced that Ross had called her and told her not to be available.
Still, the lawyers were in a boistero
us mood.
Talking further, they decided to jettison the Elmore City scenario, to focus in on Lurch and his nephew as the likeliest suspects. Wyatt got an idea. Xeroxed diagrams of the longer scenario had already been prepared for their own use. They could “accidentally” let one slip to the floor during a recess in the morning, let the D.A. find it and be thrown off the track.
Between Gordon Calhoun’s conscience and Richard Kerner’s photos, they felt things were going their way. Their new optimism was irrepressible; they laughed and joked for the first time in weeks.
But they knew that the confession tapes would be played the next day, and that they were disastrous to the defense.
“Tomorrow I’m going to wear my flak jacket,” George Butner said.
Wyatt sent word to Tricia that night: he did not know if Tommy would get off; but they should have plans ready to spirit him out of town, directly from the courthouse, in case he did.
DAY EIGHT
By now the cast of characters was as in a long-running show, and the audience was diminishing. Dr. Haraway, Betty Haraway, and their daughter, Cinda, sat in the second row, as they did every day; Melvin Ward sat in the third row, the press up front. The rest of the spectator section, filled to capacity the first few days, had thinned to about two-thirds. But this afternoon would be box-office. Word had spread through the courthouse, and this afternoon the benches would be packed, the spectators hip to hip in discomfort; this afternoon they would show the tapes.
The morning began with a former inmate at the city jail, Terry McCartney Holland, on the stand. Mrs. Holland told of a conversation she’d had in the jail with Fontenot shortly after his arrest. She said he first told her that he, Tommy, and Odell Titsworth had done it. He was excited when he said that, she said; he told her the same story that was on the tapes; and he gave her three guesses as to where they had put the body: in the river, in the concrete bunker, in the burned-out house. She added that he later told her other versions, in which he was not involved, just Tommy and Odell. On cross-examination, she said she felt Karl got a kick out of telling these stories; he would be wide-eyed as he told the stories, walking all over his cell; he enjoyed the notoriety, she said. Karl told “tall stories” about everything, she said. He told her what a great guy his buddy Tommy Ward was—“a great-looking guy, well-built, stocky.” She expected, from Karl, to meet “a great god” in Tommy Ward, she said. She heard so many different stories from Karl that after a while she didn’t believe any of them. He scared her at first—then she realized he was “just a blowhard,” she said; but Karl did think a lot of Tommy; it was sort of “hero worship.”