An Oklahoma judge has ordered the second defendant in Ada’s so-called “Innocent Man” murder case to be immediately freed after spending 35 years in prison and excoriating investigators and prosecutors for withholding favorable evidence from his defense team for decades.
Tommy Ward, who was convicted twice for the 1984 kidnapping and murder of Ada convenience store clerk Donna “Denise” Haraway, had his conviction and life sentence overturned and was ordered to be freed from prison in a findings of fact and conclusions of law order issued late Friday by Atoka and Coal counties District Judge Paula Inge, who was assigned to hear Ward’s application for post-conviction relief in Pontotoc County.
Ward’s co-defendant in the case, Karl Fontenot, had his conviction and sentence overturned and was ordered released by a federal judge in Muskogee late last year. The Oklahoma Attorney General’s Office appealed that decision to the U.S. 10th Circuit Court of Appeals, which is considering arguments made earlier this year in the case.
Ward and Fontenot’s case was the subject Fontenot and Ward were subjects of a 2006 John Grisham book — and a wildly popular 2018 Netflix documentary — titled “The Innocent Man,” as well as a 1987 book by Robert Mayer titled “Dreams of Ada.” The books and movie looked at two circa-1980s murders in Ada, that of Debbie Carter and, later, Haraway.
Two men, Ron Williamson and Dennis Fritz, were convicted of murdering Carter but were eventually freed thanks to advances in DNA evidence testing.
Other Pontotoc County cases, such as that of Perry Lott, who was convicted for robbery and rape, in the 1980s have also been overturned in recent years.
One of Ward’s attorneys, Greg Swygert, said on Monday that he hopes to have Ward out of prison by Christmas.
“Tommy has heard and he’s understandable thrilled,” Swygert said. “We’re hoping to get him home before Christmas so he can see his family for the first time in 35 years.”
However, Alex Gerszewski, spokesman for Attorney General Mike Hunter’s office, said the state will seek a stay of Ward’s release and intends to appeal Inge’s ruling.
The ruling in Ward’s case, and the previous ruling in Fontenot’s case setting him free, came in late 2018 after a trove of around 300 pages of documents related to the case were discovered in the Ada Police Department’s evidence room in response to a request by Ward’s attorneys. Fontenot’s attorneys had also previously requested documents matching their description but were told none existed. The documents included police interviews of witnesses, alternative suspects and other leads that should have been made available to Ward’s attorneys in the 1980s, the court ruled.
In her order issued Friday, Inge stated that during Ward’s first trial (his first conviction was overturned) and retrial in 1989, investigators withheld key evidence from his defense attorneys, including witness interviews, reports and other key law enforcement documents.
In a 2019 deposition cited in Inge’s order, former OSBI Agent Gary Rogers, who was one of the lead investigators in Haraway’s disappearance and death, testified that he, as an investigative officer rarely included all interviews in materials turned over to defense attorneys because it would “muddy the waters … including stuff that … may or may not have had a lot to do with the particular case, and it would just add another element that the State would have to defend, …”
Unknown to Ward’s original attorneys, a key witness who put Ward at the convenience store just prior to Haraway’s disappearance had requested a $5,000 reward, telling OSBI agents that without his testimony, a guilty verdict would not be possible, though the newly-uncovered documents also showed that the witness’s description of the suspect and what he saw had changed dramatically over time.
“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 documents also contained interviews of witnesses who told police they saw individuals at the store prior to Haraway’s disappearance who did not match Ward or Fontenot’s appearance, information that Haraway had been receiving obscene phone calls at the store prior to her disappearance, and information about OSBI investigations of other suspects, despite former District Attorney Bill Peterson telling Ward’s trial court that he knew of no other suspects.
“The prosecutors’ statements are in line with the details of how the district attorney’s office and investigative officers worked together in the mid-1980s,” Inge wrote. “The district attorney’s office tried the Ward case using the OSBI’s prosecutorial summary. OSBI Agent Rogers testified he did not want to identify other potential suspects deemed ‘dead-ends’ to keep the defense lawyer from distracting the jury or judge with information that had absolutely nothing to do with the case.”
When questioned by police, Ward eventually said he had a dream about what happened to Haraway, and later offered a confession in which he, Fontenot and another man had abducted, raped and stabbed Haraway to death. He later recanted his confession. The confession was used at trial, but when Haraway’s body was later discovered miles away from where Ward had said it was, there was a bullet wound to her skull, and none of Ward’s statements fit the evidence found.
The only detail in Ward’s confession that was not later disproven was his description of a blouse she was wearing when she disappeared, and though Ward later said he was given a choice of two blouses by the officers prior to making his confession, law enforcement said it was the first time they had heard such a description.
However, this was also not true, the evidence in the case shows.
The newly-uncovered documents showed that, prior to police questioning of Ward, officers were given a description of the blouse Haraway was believed to have worn prior to the questioning of Ward.
“The process of suppressing favorable evidence to Ward is fundamentally unfair and has deprived him of his right to a fair trial,” Inge wrote. “He has been denied due process as guaranteed by the federal and state constitutions.”
Furthermore, Inge’s order states that “due to the passage of time, the Court is of the opinion Ward will not be able to receive a fair trial.”
Swygert praised Inge’s order, and said that, in addition to the 190-page opinion in Fontenot’s case that also took prosecutors and investigators to the woodshed, state officials should begin to look seriously into questions about the reliability of criminal convictions in Pontotoc County during the 1980s.
“She understood there were systemic issues of misconduct, just by the statements made by prosecutors and investigators in this case,” Swygert said. “It was clear they admitted these things. No evidentiary hearing was needed for that reason — everybody admitted what was happening: they didn’t want to give away these things to defense counsel because it could muddy the waters. That’s not allowed and that’s not what you’re supposed to do.”
Swygert said though he is happy Ward has been ordered to be freed, it has taken much too long to get this far.
“It feels fantastic. There was a lot of work done,” Swygert said. “It’s kind of bittersweet. I’m happy Tommy will now be with his family, I’m sad he missed so much including within the last year he lost his mother. I wish his justice would’ve come sooner.”
Read Judge Inge’s full Findings of Fact and Conclusions of law here: