By Clifton Adcock
The Oklahoma Attorney General’s Office has appealed a federal judge’s ruling issued last month that ordered the state to release or hold a new trial for Karl Fontenot, one of the defendants profiled in the John Grisham book and NetFlix documentary “The Innocent Man.”
In late August, U.S. District Judge James H. Payne issued a 190-page order in Fontenot’s case that excoriated prosecutors and law enforcement investigators and ordered the state to either permanently release Fontenot or hold another trial for him within 120 days.
Payne’s order states that Fontenot’s attorneys presented newly-discovered evidence in the case that helped prove Fontenot’s probable innocence. In January, the Ada Police Department discovered hundreds of pages of documents in the case that had not been turned over to Fontenot’s attorneys.
Fontenot is serving a life sentence in the 1984 killing of Ada convenience store clerk Donna “Denice” Haraway, though her body was not found until 1986. Prior to the discovery of Haraway’s body, an Oklahoma State Bureau of Investigation agent interviewed Tommy Ward, who said he, Karl Fontenot, and another man robbed the store Haraway worked at, then stabbed and raped her before burning her body.
Fontenot was arrested the next day. Both he and Ward confessed to the killing, but quickly recanted their confessions and have claimed for years that they were coerced into saying they killed Haraway. Ward, who is also serving a life sentence in the case, is also seeking to have his conviction overturned, though his case is in state court.
On Friday, the Oklahoma Attorney General’s Office filed notice that it would appeal Payne’s ruling to the U.S. 10th Circuit Court of Appeals, as well as a motion asking Payne to stay his ruling until the appellate court could review its appeal.
In its request for Payne to stay his order, assistants attorney general Matthew Haire and Theodore Peeper warned that if a stay is not granted, the state would suffer “irreparable injury,” since it is unlikely the appeal could be heard by the 10th Circuit before the end of the 120-day time frame. Or, Haire and Peeper wrote, if the state went ahead with preparations for a new trial for Fontenot and the order was overturned by the appeals court, it would result in a waste of time and resources.
In the motion, Haire and Peeper also touch on their grounds for appealing the order, the reasons they believe the appeal will be successful and the reasons the state’s motion to dismiss Fontenot’s case should have been granted.
The court used a legally incorrect standard of review, failed to apply properly deferential standards to state court decisions, uncritically accepted arguments and evidence by Fontenot’s attorneys and ignored state-court determined facts that were unfavorable to Fontenot’s case.
Fontenot’s years-long delay in filing the federal habeas lawsuit should have yolked his case with “an extremely difficult burden of producing new and reliable facts in order to surpass his procedural bars,” and should have negatively impacted the reliability of the evidence of “actual innocence” presented, Haire and Peeper wrote.
“Failure of this Court to consider Petitioner’s inordinate delay and apply appropriate deference to the state court’s rulings wrongly permitted Petitioner habeas relief,” the state’s attorneys wrote, “and this is why Respondent has a high likelihood of success on appeal.”
The attorneys also stated evidence that Harraway had given birth prior to her murder and testimony of a witness who said he saw Fontenot at a party the night of Harraway’s disappearance, both of which were cited as proof of innocence by Payne, had been rebutted, was “weak and untested” proof, and was an example of Payne uncritically accepting information from Fontenot’s legal team.
Payne’s determination that Fontenot’s confession was the result of law enforcement misconduct relied heavily on alleged Brady violations by law enforcement and the circumstances surrounding his confession, the attorneys wrote, but the court should have deferred to an earlier Oklahoma Court of Criminal Appeals ruling that “found that Petitioner’s confession was corroborated by other evidence, voluntary, uncoerced, and it was not affected by any police misconduct.”
“This Court’s factual findings have now been used to permit Petitioner to pass through state and federal procedural bars and have his petition reviewed,” the state’s motion reads. “When Respondent, through the State of Oklahoma, is entitled to deference under the law, it should be entitled also to review of this Court’s rulings appearing to take it away.”