Attorneys in ‘Innocent Man’ case spar over records missing for years

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Karl Fontenot is seen in a still image from an interview he did with Ada police in the 1980s. Courtesy

MUSKOGEE — Officials with the city of Ada and state Attorney General’s Office struggled on Tuesday during a court hearing to explain why hundreds of pages of previously undisclosed police reports related to the disappearance of Denice Haraway were found and turned over to defense attorneys years after attorneys for Karl Fontenot first requested them.

Not that their answers, or lack thereof, did much for Fontenot, who was one of two men sentenced in 1985 for killing Haraway. Fontenot and his co-defendant, Tommy Ward, have maintained their innocence for decades.

At issue Tuesday was a subpoena sent by Rob Ridenour, Fontenot’s attorney, to the Ada Police Department in 2017 asking for the department for records related to Fontenot’s case. There were no such records, Ada Police Chief Mike Miller testified on Tuesday to having told the city’s attorney, Frank Stout, at the time.

Of course nearly two years later it was discovered that there were records. And not just any records, Ridenour has said — he believes they are records that may point the finger away from his client, as witness accounts never before seen by Fontenot’s attorneys offer descriptions that don’t match Fontenot as he appeared in 1984.

It wasn’t until late 2018 that Ada police say they found the records — three boxes that included a variety of items. They notified Ward’s attorneys (he is also serving a life sentence for the Haraway murder and is seeking relief in a separate case filed in state court), but not attorneys for Fontenot. They filed a motion earlier this year seeking sanctions against the city of Ada and the attorney general’s office and U.S. Magistrate Judge Steven P. Shreder on Tuesday granted the sanctions in part against Ada. He declined to sanction the AG’s office, saying its involvement in the case came after the 2017 subpoena filed by Ridenour.

Ridenour accused both Ada officials and the attorney general’s office of a “pattern of misconduct” in the case, going back years.

Assistant Attorney General Matthew Hair, who Ridenour unsuccessfully attempted to subpoena to testify during Tuesday’s hearing, told the court he and other attorneys from the AG’s office were “being accused of sitting on our hands and doing nothing” once the documents were discovered.

Hair declined to comment after the hearing to The Frontier.

The hearing
According to testimony on Tuesday, the documents were discovered in December 2018 by the Ada Police Department’s evidence and property officer after attorneys for Fontenot’s co-defendant Tommy Ward, who is seeking post-conviction relief in state court, sent a subpoena for documents relevant to the case.

Miller, Ada’s police chief, testified on Tuesday that the Ada Police Department moved to a new station in late 2016 and transferred various property and evidence from several locations to the new department’s evidence room.

In February 2017, Fontenot’s attorneys sent a sealed subpoena to the Ada Police Department for any records it might have related to Fontenot’s case.

Miller, who has been chief since 1996 and worked at the police department since 1981, testified that he could not recall receiving that federal subpoena or what efforts he took to comply with the subpoena.

Stout, Ada’s city attorney, sent Fontenot’s attorneys a response letter in 2017 saying the police department did not have any documents relevant to the subpoena. He testified Tuesday that, after receiving the subpoena, he called Miller to ask if the police department had anything relevant to the subpoena. Miller, Stout said, immediately responded that the department had nothing.

Ada Police Department property and evidence clerk Larry Durant, who later found the three boxes of documents in the Ward and Fontenot cases, testified that Stout never asked him in 2017 to search for any documents relevant to the subpoena.

More than a year later, in December 2018, Ward’s attorneys sent a subpoena in search of documents relevant to the case.

Stout testified he was given the subpoena from the police department and then sent an email asking Miller whether the police department had any relevant documents. On Dec. 20, Durant said he found the boxes of documents and informed Miller what he had found. Two days later, the evidence was entered into the police department’s evidence database.

On Jan. 4, 2019 — the day of the deadline to comply with the subpoena — Stout checked back in with Miller to inquire whether he had found any relevant documents, Stout said. Miller told him that he did.

Stout then came and picked the documents up and took them to his office, Miller testified, although no inventory or count of the documents had been made and no measures to preserve the evidence’s chain-of-custody were made. At least one of the boxes — one containing several hundred pages of documents — was not sealed. Stout said he began making copies of the documents the day he was informed they had been found and had turned them over to Ward’s attorneys and the attorney general’s office by Jan. 7.

Stout said he spoke with Assistant Attorney General Matthew Haire on Feb. 1, 2019, about sharing the information with attorneys representing Fontenot, Stout testified, and Fontenot’s attorneys were notified that the documents existed on Feb. 5 or 6. However, Ridenour said Ward’s attorneys had already told another one of Fontenot’s attorneys about the existence of the documents by then.

On Feb. 7, Fontenot’s attorneys filed a motion for sanctions against the attorney general’s office for withholding the documents. Soon after that, Fontenot’s attorneys subpoenaed Haire to testify, although that subpoena was later quashed.

When Haire was subpoenaed, Brett Macy, chief investigator for the Oklahoma Attorney General’s Office and former Oklahoma City Police officer, was assigned to investigate how the documents came to be and where they had been for so long. Haire said he had opened an inquiry into the documents, but removed himself after the subpoena for him to testify was issued. Macy was assigned to continue that investigation.

Prior to Macy travelling to Ada to meet with city officials about the documents, an investigator for Fontenot was given permission by the attorney general’s office to accompany him. By that point, there were “tensions” between Fontenot’s attorneys and Ada officials.

“I did voice my concerns. I knew there had been tensions between some of the attorneys and city officials,” Macy said, adding that he worried those tensions would make it difficult for the city officials he planned to interview to be open about what they knew.

Stout said he was “upset” by the allegations by Fontenot’s attorneys against the city and state in Fontenot’s Feb. 7 motion for sanctions, and was unaware that Macy was an investigator, rather than an attorney.

Macy, who is the son of former Oklahoma County District Attorney Bob Macy, interviewed Stout and Assistant Ada City Manager Angie Dean about how the documents were found. They told him, Macy said, that there were two officers at the police department who had been custodians of the documents in question, but both of those officers had since died.

Macy testified that he met with Miller during his trip to Ada, but did not interview him, nor did he interview Durant.

Macy said his investigation could not definitively conclude who found the documents, how they showed up in the police evidence room or why they had been missing for so long.

“Basically, this report had to be written with the evidence we had at the time,” Macy testified.

To the best of his understanding, Macy said, prior to November 2016, the documents had been sitting in a room at the police department full of miscellaneous records and equipment known as the “Mistletoe room.” They were then moved to the new police department in November of 2016, but had not yet been entered into the police evidence database when Fontenot’s attorneys issued the February 2017 subpoena.

“What we have here is a delay in the production of records…for approximately two years,” Shreder said. However, Shreder continued, there is no evidence that the Oklahoma Attorney General’s Office knew the documents existed prior to January 2019, and that the AG’s office was responsible for only a one-month delay in production of the documents.

Shreder granted only one of four of Fontenot’s requests for relief in the motion for sanctions — putting a preservation order on all evidence and documents pertaining to Ward and Fontenot’s case. Another of Fontenot’s requests for relief — filing an amended petition — had already been granted in the case.

Shreder denied Fontenot’s request to be released on bond pending the resolution of his claims and a request to bar any state arguments that too much time has passed for Fontenot to seek relief.

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Clifton Adcock

Senior Staff Writer

A veteran investigative reporter who has covered eastern Oklahoma for more than 15 years, Clifton joined The Frontier in April 2017. A native of southeastern Oklahoma, he has covered numerous issues from criminal justice to politics for publications including the Tulsa World, the Oklahoma Gazette, and Oklahoma Watch. Clifton holds a master’s degree in journalism from the University of Oklahoma. Clifton can be reached at clifton@readfrontier.com. Follow him on Twitter @cliftonhowze
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