Time for a little Lilliputian justice in Oklahoma

Rob Warden reviews the case against two Oklahoma defendants wrongly convicted in a case in which prosecutors withheld significant evidence, and offers a suggestion on the appropriate remedy.

There never will be anything remotely resembling justice for Karl Allen Fontenot and Thomas Jesse Ward, who have languished behind bars in Oklahoma for just shy of thirty-five years for a murder they didn’t commit.

Nothing can compensate Fontenot and Ward adequately for those lost years—several of which were spent on death row—but Senior U.S. District Court Judge James H. Payne took a laudable step in the right direction two weeks ago in granting a federal writ of habeas corpus to Fontenot—ordering prosecutors to retry him within 120 days or to drop all charges and release him.

Ward’s case is pending in the Oklahoma courts, but because his and Fontenot’s convictions rest largely on confessions that obviously were false and coerced, Payne’s decision bodes equally well for both men.

In light of the facts, as laid out in Payne’s August 21 opinion and order, there is virtually no chance that either man could be convicted at a fair trial—which neither has ever received.

In November 1984, Fontenot and Ward, then in their early 20s, were arrested and charged with the abduction, rape, robbery, and murder of 24-year-old Donna Denice Haraway, who had disappeared the previous April 28 from a convenience store where she worked as a cashier in the Pontotoc County town of Ada.

Karl Allen Fontenot

The principal prosecution evidence was dreams Fontenot and Ward separately described on video tape during interrogation by Ada Detective Dennis Smith (now deceased) and Oklahoma Bureau of Investigation Agent Gary Rogers. The dreams were problematic because they implicated a local trouble-maker, Odell Titsworth, as the ringleader in the crime. The problem was that Titsworth had been physically incapable of the acts attributed to him because he had recently suffered a broken arm in a struggle with police.

Nevertheless, and even though Haraway’s body had not been found, Pontotoc County District Attorney William N. Peterson and his top assistant, Christopher L. Ross, pressed ahead with the prosecution. Fontenot and Ward were tried jointly and convicted by a Pontotoc County jury in September 1985 for the abduction, robbery, and murder of Haraway and sentenced to death a month later.

Thomas Jesse Ward

In addition to the dream statements, the prosecution presented one dubious witness who claimed to have seen Ward and another man at the convenience store from which Haraway had been abducted, two witnesses who placed Ward and Fontenot at nearby convenience store a little before the Haraway abduction, and a jailhouse informant named Terri Holland, who claimed Fontenot confessed to her in the Pontotoc County Jail that he and Ward committed the crime.

On January 6, 1986, while Fontenot and Ward’s appeals were pending, Haraway’s body was found, revealing additional discrepancies between the dreams and the crime: The dream victim had been stabbed to death, but Haraway had died of a single gunshot wound. The dream victim’s body had been disposed of in a concrete bunker or burned in an abandoned structure near a creek, but Haraway’s body was found 20 miles from the creek and it had not been burned. The dream victim had worn a flowery white blouse—matching one Haraway’s sister had described to investigators—but her corpse had on a red flannel shirt.

You would hope that someone in a position of authority would find it hard to swallow that Fontenot and Ward had independently described dreams in which the victim had been stabbed, in which Titsworth was the ringleader, and in which the victim wore a flowery white blouse—all of which were wrong.

But no.

Without reference to the lack of veracity of the dream statements, the Oklahoma Court of Criminal Appeals reversed the convictions—Fontenot’s in April 1987, Ward’s in May 1988—because the statements, which implicated each other in the crime, had been improperly admitted into evidence against both men at the trial.

On remand, Fontenot was tried in June 1988 before a jury on a change of venue to Hughes County, again convicted, and sentenced to death. Ward was retried in May and June 1989 and convicted by a jury on a change of venue to Pottawattamie County, but sentenced to life in prison rather than death.

Both convictions rested on essentially the dream statements and the other dubious evidence presented at the joint trial. The Court of Criminal Appeals affirmed Ward’s conviction in January 1994 and six months later affirmed Fontenot’s conviction, but remanded his case for resentencing based on the omission of a crucial jury instruction during the penalty phase of his trial. He was resentenced to life without the possibility of parole.

For the next three decades, the prosecutors and Oklahoma Bureau of Investigations stonewalled defense demands for exculpatory evidence that had been withheld before the trials.

But in April 1999, any illusions that the dream statements and the jailhouse snitch testimony of Terri Holland bore any indicia of reliability ought to have been dashed by the DNA exoneration of Ronald Keith Williamson, who had been sentenced to death by a Pontotoc County jury in 1988 for the 1982 murder of a young Ada woman named Debra Sue Carter.

Williamson’s conviction rested on his description of a dream about the murder purporting to contain details of the Carter murder that only her killer would have known. The Williamson dream statement had been obtained by none other than Dennis Smith and Gary Rogers, who obtained the Fontenot and Ward dream statements. And Terri Holland, the jailhouse snitch who had testified that Fontenot admitted the Haraway crime, testified at Williamson’s trial that he similarly had confessed to her.

Eventually, the Oklahoma City Law School Innocence Project entered the case on Fontenot’s behalf, and the Center on Wrongful Convictions at Northwestern University Pritzker School of Law and Sidley Austin LLP joined Mark Barrett, an Oklahoma lawyer who had been instrumental in the Williamson exoneration, in representing Ward.

Ensuing discovery uncovered previously withheld exculpatory evidence that persuaded Judge Payne to grant Fontenot’s writ of habeas corpus. The evidence included documents and witness statements corroborating Fontenot and Ward’s alibi, which they had advanced at their trials, but that had not been persuasive absent corroboration. The withheld evidence constituted, to Payne’s satisfaction, “solid proof of Mr. Fontenot’s probable innocence.”

Payne, of course, advanced no opinion on what would be an appropriate ending to this sad saga—but perhaps some would consider it fitting to borrow from Lilliputian law (as described in “Gulliver’s Travels”): When an accused person “makes his innocence plainly to appear . . . the accuser is immediately put to an ignominious death; and out of his goods or lands the innocent person is quadruply recompensed for the loss of his time, for the danger he underwent, [and] for the hardship of his imprisonment. . .”

At least, it seems to me, opposed as I am to capital punishment in all cases, that it would be just to free Fontenot and Ward, quadruply recompense them, and fill their vacated prison cells with those still living who falsely accused them—including, although not necessarily limited to, former Pontotoc County DA Peterson, assistant DA Ross, Agent Rogers, and Terri Holland.

Rob Warden is co-director of Injustice Watch and executive director emeritus of the Center on Wrongful Convictions, which represents Thomas Jesse Ward.