OKLAHOMA CITY (AP) — An Oklahoma man is just days away from walking out of prison after a federal judge decided he has spent 35 years in prison for a kidnapping and murder that evidence indicates he likely didn't commit, and yet his freedom could be short-lived.
U.S. District Judge James Payne in August ordered Karl Fontenot, 55, to be released by Thursday, writing in his nearly 200-page decision that newly discovered evidence provides "solid proof of Mr. Fontenot's probable innocence." The judge cited numerous problems with his conviction including: new evidence establishing an alibi and other suspects; sloppy police work; bungled crime scenes; and the prosecutor's withholding of evidence and knowing use of false testimony, among other things.
"This pattern and practice resulted in a systemic due process violation of Mr. Fontenot's constitutional rights," the judge wrote of the case that John Grisham featured in a bestselling book and Netflix documentary.
Nevertheless, Oklahoma's attorney general is appealing the decision, and local prosecutors are mulling whether to retry Fontenot.
"We have not made a decision," said District Attorney Paul Smith, the prosecutor tasked with a potential retrial. "I've requested assistance from the (Oklahoma State Bureau of Investigation) to kind of rework the case and to give me an opinion on the efficacy of that, and that's ongoing."
Smith declined to elaborate on his thinking about whether to retry Fontenot, saying he didn't want to jeopardize the pending appeal or any future trial.
The convictions of Fontenot and co-defendant, Thomas Ward were based almost entirely on accounts they said they retrieved from dreams. These "dream confessions" came after hours of interrogation by Ada police and state agents. Those investigators were desperate to solve the disappearance of convenience store clerk Donna Denice Haraway in 1984, just two years after the unsolved rape and murder of another young woman in the small central Oklahoma town.
After the details of both men's confessions were proven untrue — Haraway's body was discovered years later in a different location and had been shot to death not stabbed as the pair had said — a state appeals court ordered new trials. Local prosecutors again secured their convictions, based largely on their confessions.
Videotaped confessions, including those obtained from Ward and Fontenot, are powerful tools for prosecutors to present to a jury, but a surprising number of confessions in murder cases have been proven to be false, said Vanessa Potkin, director of post-conviction litigation at the New York-based Innocence Project.
"As DNA exoneration cases show us, a staggering number of people routinely falsely confess to crimes they didn't commit," Potkin said. "One-fourth of the people proven innocent by DNA testing made admissions and confessed during a custodial interrogation to a crime they were completely innocent of. It is much more common than people tend to believe."
Potkin said Fontenot's confession shares many characteristics common among false confessions, including a suspect with a low IQ, a lengthy interview with seasoned detectives that was conducted off camera, and investigators who provided Fontenot with details about the crime during questioning.
"Most people believe they would never confess to a crime they didn't commit, but the reason most people say that is that they've never been inside of an interrogation room with skilled detectives who are highly trained," she said.
Fontenot's attorney, Tiffany Murphy, said her client understands his freedom hangs in the balance.
"He was extremely excited to be found actually innocent, which he is," Murphy said in a brief telephone interview with The Associated Press. "But he also understands that this is not over."
The convictions of Ward and Fontenot have come under intense scrutiny for years and have been the subject of numerous books, including Grisham's "The Innocent Man," which he produced into a six-part documentary.
The books and documentary also feature the high-profile exoneration of Ron Williamson and Dennis Fritz, who both were convicted in the 1982 killing of Ada waitress Debra Sue Carter. The case featured the same cast of investigators and prosecutors, along with the same jailhouse informant who testified against Ward and Fontenot. Williamson at one point came within days of being executed. Both were later freed.
Murphy, now a law professor at the University of Arkansas, first took up Fontenot's case more than six years ago when she was the head of the Oklahoma Innocence Project.
Fontenot's supporters have been collecting clothes, furniture and other necessities for him, and secured a place where he can live after his release.
Ward's appeal is proceeding separately in state court, and he remains imprisoned at the R.B. Conner Correctional Center in Hominy, Oklahoma.