Posted on Thu, May. 29, 2003 Star-Telegram

UPDATE:  Harvey free after 12 years in prison for wrongful conviction
Seeking freedom
Man convicted in 1992 of molesting a 3-year-old girl cites new evidence in his request to reopen the case

Star-Telegram Staff Writer

STAR-TELEGRAM/JILL JOHNSON
"It didn't register in my mind that if you prosecute an innocent man, he will be found guilty beyond a reasonable doubt," John Michael Harvey says.

STAR-TELEGRAM/JILL JOHNSON
John Michael Harvey says he pushed for a trial because he was sure that he would clear his name.

SPECIAL TO THE STAR-TELEGRAM/MARCUS JUNIUS LAWS
"If all of my claims are accurate, I am just blown away," says Sean Buckley, John Michael Harvey's attorney. "I would think they would have to come to the conclusion that the district attorney had a rogue prosecutor on his hands."

STAR-TELEGRAM/JILL JOHNSON
John Michael Harvey is serving a 40-year sentence in the Allred unit after being convicted of molesting a former girlfriend's daughter.

John Michael Harvey rests his head in his hands, grabbing a moment of solitude. The cool, quiet interview room seems miles away from the noisy, sweaty prison cell where he has lived for more than a decade.

Harvey, 38, of Bedford was sentenced to 40 years in prison in 1992 after a Tarrant County jury found him guilty of molesting a 3-year-old girl, the daughter of his live-in girlfriend.

From the beginning, he has said he is innocent.

Now, Harvey's attorney has asked a Tarrant County judge to reopen the case, citing new evidence, including a sworn statement from the victim -- now 17 -- that Harvey is not the man who molested her. The lawyer also accuses the prosecutor of misconduct.

Harvey, meanwhile, waits at the Texas prison system's James V. Allred Unit near Wichita Falls.

"It didn't register in my mind that if you prosecute an innocent man, he will be found guilty beyond a reasonable doubt," he said quietly during a recent interview.

"I knew I was innocent. I thought I would get off."

Tim Curry, the Tarrant County district attorney, said his office is investigating the matter.

"If there has been some injustice done, we will do our part to rectify it," Curry said. "That is what you do."

Putting the pieces together

Harvey's attorney, Sean Buckley of Houston, filed a request last week in Tarrant County seeking a hearing in state district court, the first step toward taking the new evidence to the Texas Court of Criminal Appeals.

Buckley said the evidence points to Harvey's innocence.

"If all of my claims are accurate, I am just blown away," Buckley said. "I would think they would have to come to the conclusion that the district attorney had a rogue prosecutor on his hands."

The allegations add to concerns raised by two judges who heard previous testimony in the case, but an appellate chief in Curry's office said the new evidence has already been rejected.

The prosecutor, Lisa Mullen, now a criminal defense lawyer in Fort Worth, said she can't remember specifics about the case, but she denies any wrongdoing.

"I would have no interest in prosecuting him if I didn't think he was the actor," Mullen said Wednesday. "I dismissed cases where there were doubts."

Mullen said she resents any allegations of misconduct, saying that she worked hard as a prosecutor and that as a defense lawyer continues to protect clients within the bounds of the law.

"I take ethics very seriously," she said.

The victim, however, said recently in a sworn statement that she named Harvey as her attacker on the witness stand under pressure from Mullen.

In the statement, the victim said: "I am also very angry with the prosecutor. I feel that she took advantage of me because she wanted to win her case."

She also said that Harvey "never molested me at any time and never touched me sexually at any time."

The girl, who recently returned to Texas to live near Houston with her mother, declined through Buckley a request to be interviewed by the Star-Telegram.

Buckley said the girl came forward voluntarily last month to discuss the case with Harvey's family. She said she had been isolated by her family and only recently became aware that Harvey was in prison.

In the court documents, the girl is identified only as S.R. and her mother as Gloria R. The Star-Telegram typically does not name sexual abuse victims or members of their families.

The girl and her mother moved to Bedford from South Carolina to live with Harvey in the late 1980s, after Gloria R. became estranged from her husband, S.R.'s stepfather. Harvey had known the girl's mother since grade school, and they had been romantically involved.

The girl periodically returned to South Carolina, and in 1989 she was sent to live with her grandmother in Geneva, N.Y. Within a few weeks, she began acting improperly and told her grandmother that she had pain in her genital area.

The grandmother called an abuse hot line, spurring an investigation by New York and Texas authorities. Harvey was indicted in 1989, but Gloria R. said then that she thought that her mother had coached the child into making the allegations against Harvey.

At the time, S.R. said that the man who attacked her was a "very big man with a tattoo."

Harvey, who has always been skinny, has no tattoos.

In her recent statement, S.R. said that her stepfather told her not to mention the tattoo during her testimony, and she said the stepfather insisted that Harvey was the man who molested her.

The girl's story is supported by her mother, who said she told Mullen that another man in South Carolina molested her daughter and that Harvey did not have tattoos. The mother said in a sworn statement that Mullen told her not to mention the other man's name during the trial.

Buckley said that two notations in the prosecutor's files indicate that Mullen knew about a tattoo before the case went to trial. One handwritten note in the file mentioned an eagle tattoo; another indicates that Mullen was considering taking a photo of the South Carolina man.

Buckley said the statements and notes alone should be enough to reopen the case.

"It is something that she said 10 years ago," Buckley said. "It just didn't come out of the blue ...

"It has too many coincidences to be a coincidence," he said.

Who knew what and when

Buckley's filings with the court say that Mullen acted improperly by not disclosing exculpatory evidence concerning the tattoos before Harvey's trial in 1992.

In an April 1999 hearing on a previous request from Harvey for a new trial, questions were raised about the tattoo notation, but no reference was made to the notation about the photo.

At the 1999 hearing, Mullen testified that the victim did not tell her that the man who molested her had a tattoo. She said the note was not from an interview but was simply scribbling done during the trial, according to court documents.

Mullen also testified that if she had been told about the eagle tattoo, she would have filed a motion with the trial court to take pictures of Harvey.

But Judge Harry Hopkins, who presided over the 1999 hearing, said in his ruling that the tattoo was never mentioned during the trial and that Mullen's explanation "was something less than convincing as to what prompted this handwritten note."

He nonetheless denied the request for a new trial.

Buckley said the second notation indicates that Mullen knew about the tattoo in 1992.

"The new evidence [about the tattoo] is going to cause some people severe problems with Mullen's testimony at the previous hearing," Buckley said.

Buckley also accuses Mullen of knowing that one of her witnesses, a former Bedford neighbor of Harvey's, committed perjury.

The neighbor testified that she was called by Gloria R. in the middle of the night in July 1990, saying that Harvey had beaten her after she confronted him about the sexual abuse accusations.

The neighbor said she contacted Bedford police shortly after picking up Gloria R. and said the police already had Harvey in custody.

But telephone records submitted as part of Harvey's new appeal indicate that the phone calls never occurred. Gloria R. denied making the call, and records show that she was living in South Dakota at the time.

Arrest records reveal that Harvey was not in custody at the time.

Notes included in Buckley's court filing, however, indicate that the jury considered the neighbor's testimony crucial.

"My understanding is that they did not give the victim's testimony a lot of credibility, but they felt the other testimony was strong," Buckley said.

Mullen said Wednesday she couldn't remember the contents of the notes, but said there is no question that "those notes came from the trial and from getting ready for the trial."

Chuck Mallin, chief of the appellate division of the district attorney's office, said many of Buckley's claims were raised during early court proceedings and they "didn't go very far."

"Most of this stuff has already been litigated," Mallin said. "I take recantations with a grain of salt. The court has to be careful in overturning a jury verdict."

The judge in Harvey's original trial, however, also said recently that he had concerns about the conviction. Visiting state District Judge R.E. Thornton said that after the jury delivered its verdict in 1992, he "didn't feel right when it went down." Still, Thornton decided to honor the jury's decision.

Thornton added that he did not feel that Mullen was abusing the system during the trial but said he wrote a letter to the parole board recommending that Harvey be granted parole.

A dark cloud

Today, Harvey spends his days with people he'd rather not know.

"I'm serving time with guys who do molest children. Who do hate. Who do commit violent crimes against other people," Harvey said as he rubbed his hand over his shaved head. "Life like that is horrible."

Harvey said he pushed for the original trial because he wanted to clear his name. He says he would not have pushed for the trial if he had been guilty.

"I had this dark cloud hanging over me that needed to go somewhere," Harvey said.

Since his conviction, his family has worked for his release and hired private investigators. In addition, Harvey passed a 1998 polygraph test.

So far, however, his appeals have been rejected.

"If I don't get justice this time, the whole system is shot to hell," he said.



UPDATE:


Posted on Tue, Jun. 10, 2003

DA seeks more time to study innocence claim

Star-Telegram Staff Writer

The Tarrant County district attorney's office asked a judge Monday to give it more time to investigate claims that a Bedford man was wrongfully convicted in 1992 of sexually molesting a 3-year-old girl.

John Michael Harvey's attorneys asked the court to reopen the case last month after the victim -- now 17 -- said that the prosecutor pressured her during the trial to identify Harvey as her attacker.

The girl, identified as S.R. in court papers, also said she told the prosecutor, Lisa Mullen, that she was attacked by a "very big man with a tattoo." Harvey is thin and has no tattoos.

The Star-Telegram typically does not name sexual abuse victims or members of their families.

"We want to look and see if there was a lapse," said Steve Conder, an assistant district attorney in the appellate division. "We take each of these [innocence claims] seriously."

The judge will set a schedule for conducting the investigation after consulting with Harvey's lawyers.

Sean Buckley, the Houston attorney representing Harvey, said he is pleased with the district attorney's response. He said the office has been very "attentive" and sent someone to interview S.R. and her mother in Houston last week.

"So far, so good," Buckley said.

Beverly Harvey, the defendant's 69-year-old mother, who lives in Palm Beach, Fla., said she has spent nearly $200,000 over the years trying to prove her son's innocence. She was elated that her son's case was being reopened.

"I hope and pray that God will finally get him justice," she said.

Harvey was sentenced to 40 years in prison in 1992 after being found guilty of molesting the girl, the daughter of his live-in girlfriend. Harvey has always claimed to be innocent and the victim of an overzealous prosecutor.

Mullen, who is now a defense attorney, has denied doing anything wrong but said she can't remember specifics about the case.

S.R. recanted her testimony in a sworn statement in March. In the statement, she said that Harvey "never molested me at any time and never touched me sexually at any time."

S.R. said she did not speak out earlier because her family had kept her isolated and she didn't know that Harvey was in prison.

Her mother, identified only as Gloria R., also gave a sworn statement saying she told Mullen that another man in South Carolina molested her daughter and that Harvey did not have tattoos.

The mother said Mullen told her not to mention the other man's name during the trial.

Buckley has also accused Mullen of withholding evidence from Harvey's attorneys and of knowing that one of her witnesses committed perjury during the trial.

In documents filed with the court Monday, Conder said a court ruling in 2000 rejected accusations of prosecutorial misconduct by Mullen and that they can't be raised again.


Max B. Baker, (817) 390-7714 maxbaker@star-telegram.com

False Child Abuse Allegations
Police/Prosecutor Misconduct
Truth in Justice