Attorneys for a man convicted for the 1984 kidnapping and murder of an Ada woman say they plan to file a federal case to try and overturn his conviction after the Oklahoma Court of Criminal Appeals overturned a lower court’s order that would have made him a free man.
Tommy Ward, 61, and Karl Fontenot, 58, were twice convicted and were eventually sentenced to life in prison for the murder of 24-year-old Ada convenience store clerk Donna “Denise” Haraway.
Last Friday, the Oklahoma Court of Criminal Appeals ruled unanimously to reverse a lower court judge’s order that Ward’s 1989 murder conviction be overturned and that he be set free. Meanwhile, Fontenot is free following a federal court decision that overturned his conviction, a decision later upheld by a federal appeals court.
Ward and Fontenot’s case was the subject of a 2006 John Grisham book and a popular 2018 Netflix documentary of the same name titled “The Innocent Man,” as well as a 1987 book by Robert Mayer titled “Dreams of Ada.” The books and movie looked at two separate murders in the 1980s in Ada, that of Debbie Carter and the subsequent wrongful convictions of two men in that case.
Shortly after the Netflix documentary was released, attorneys for Ward said a trove of hundreds of pages of documents related to the case that had never been given to them or attorneys for Fontenot were discovered in an Ada Police evidence room. The boxes contained numerous records of interviews, alternate suspects and other leads that by law should have been turned over to the defense teams by prosecutors and police, the attorneys said.
Though both Ward and Fontenot provided investigators with confessions in the case, both later recanted. Ward’s attorneys said he offered a false confession and had details in his confession fed to him by law enforcement. After Haraway’s remains were discovered more than a year after her disappearance, numerous details in the confession did not match the forensic evidence at the scene.
Shortly after the documents were discovered in late 2018, a federal judge in Fontenot’s habeas case overturned his conviction and ordered him to be released from prison or for the state to hold a new trial. The state appealed that decision to the U.S. 10th Circuit Court of Appeals, which upheld the lower court ruling, and sought a hearing before the U.S. Supreme Court, which denied the request. The Pontotoc County District Attorney’s Office must decide by early December whether to refile charges against Fontenot.
Similarly, the judge assigned to Ward’s case, Judge Paula Inge, ordered that Ward’s conviction be overturned, citing the newly discovered evidence and writing that the records showed investigators knowingly withheld exculpatory witness and evidentiary information from Ward’s trial attorneys, and that Ward’s constitutional rights were violated.
“The investigators seem to have taken on the roles of prosecutor, judge and jury, determining that only ‘relevant’ evidence was evidence which fit their theory of the case,” Inge wrote. “It also seems highly probable the district attorney’s office knew favorable evidence was being suppressed and turned a blind eye…”
The Oklahoma Attorney General’s Office, which took the reins in the case from the Pontotoc County District Attorney’s Office, appealed that order to the Oklahoma Court of Criminal Appeals.
In its ruling issued Friday, the Court of Criminal Appeals reversed Inge’s ruling granting Fontenot post-conviction relief and remanded the case back to Inge’s court to decide whether the newly-discovered evidence would have significantly impacted the outcome of Ward’s trial, had it been available.
In reversing Inge’s decision, the court wrote that Inge abused her discretion in overturning the case because Ward had previously raised some of those same issues in his direct appeal in the 1990s and thus were procedurally barred. The court’s order also stated that Ward waited too long to file a post-conviction relief application after receiving an initial set of case documents from the Oklahoma State Bureau of Investigation in 2003.
A spokeswoman for Oklahoma Attorney General John O’Connor’s office declined to comment on the ruling or the case, citing pending litigation.
One of Ward’s attorneys, Norman lawyer Mark Barrett, said Ward and his legal team were
“very disappointed” in the ruling. But Barrett said they plan to keep fighting for Ward’s freedom.
“His team representing him is very disappointed, as is Tommy Ward, but we’re going to keep pushing forward,” Barrett said. “It’s a great disappointment, but Tommy’s a really pleasant person and has to keep his chin up and keep praying for the right result. We, of course, believe in his innocence and hope he gets out at one of these stages very soon since we believe he’s in there for something he didn’t do.”
Barrett said Ward’s legal team has two avenues to try and accomplish that. The first is the newly-discovered evidence question that was sent back to Judge Inge by the Court of Criminal Appeals, which asks whether Ward’s conviction should be overturned in the interest of justice. The second, he said, is a habeas petition filed in federal court.
“We’ll try to get the newly discovered evidence issue resolved in his favor in the district court, and in the meantime, we’ll consider taking the issue that did get resolved by the Court of Criminal Appeals to federal court since it’s a federal constitutional issue,” Barrett said. “So we lost, but it’s not over, is the bottom line.”
Another of Ward’s attorneys, Gregory Swygert of the Center for Wrongful Convictions at Northwestern University’s school of law in Chicago, said one concern the team has is if Inge again overturns Ward’s conviction, the state may appeal the case again to the Court of Criminal Appeals, where it may again be overturned.
“Hopefully, we can get this in front of her quickly. Unless the AG changes his position and agrees relief is necessary, they’re likely going to appeal it again,” Swygert said. “Maybe he sees that this is a case where there was an unfair advantage the Constitution does not allow. The right thing to do is to admit that and move forward with a new trial if that’s what the DA wants to do.”
Swygert said a federal case similar to Fontenot’s may be more effective.
“The nice thing about that is they are insulated from some of these politics,” he said. “Karl Fontenot won at each stage, even to the top, in federal court. We hope Tommy’s case will follow a similar path.”
Swygert said the OCCA ruling that Ward was procedurally barred from asking a court to look at issues that were brought up decades earlier on direct appeal, despite the newly discovered evidence, sets up a dangerous precedent.
“Because he did that, he is apparently forever banned from bringing another claim, despite the fact that the evidence he may rely on doesn’t come out until later. I think that is contrary to U.S. Constitutional law,” Swygert said. “This ruling, in effect, incentivizes prosecutors to play dirty. If you have Brady material, just trickle it out. As long as they bring it (before a court) one time, they’ll be forever insulated from rebuke. That just can’t be the case.”
