Penned In

Almost nobody -- not even the trial judge or the victim -- thinks John Michael Harvey molested a child. So why's he still serving 40 years in prison?

Karen got a decent job and Harvey was hoping she was on her way to independence so their increasingly strained relationship would end. He urged her to return to New York; she wanted to bring Melissa back and get a separate apartment. The three-year-old girl returned for two months in 1988, until Karen sent her back to Geneva to visit her grandmother in January 1989. In total, Melissa lived with Harvey for about five months.

Harvey says Karen began using crystal methamphetamine, or crank; she says he indulged in it at times himself. They fought. Twice the police came to their home, once arresting Harvey, the next time Karen. When she was busted, police found pot and crank in her purse.

Harvey bailed her out and encouraged her to seek treatment. When she went to the hospital, records show she suffered from severe depression, likely because of physical abuse from her mother during childhood.

Houston's Eva Archer-Smith (shown with husband 
Rick Smith) developed key evidence for her cousin 
Houston's Eva Archer-Smith (shown with husband Rick Smith) developed key evidence for her cousin Harvey.
Attorneys Habern and Buckley believe the facts will 
lead to freedom for Harvey.
Attorneys Habern and Buckley believe the facts will lead to freedom for Harvey.

While Karen was in treatment, Harvey took a camping trip to get away from it all in 1989. When he returned, his apartment manager told him police had searched his residence. "What the hell?" thought Harvey.

An incredulous Harvey called police in his suburban town of Bedford to find out what was going on. When he drove down to the station at their request he was immediately arrested.

Police investigator Rhonda Moore told him he was being charged with aggravated sexual assault of a child. "I didn't even hear the sexual part," Harvey says. "I thought they were talking about physical abuse. I told them, 'I don't even spank Melissa.' "

This had nothing to do with spanking. It was rape.

Harvey told Moore there must be a mistake. "Melissa's only three," he said. "That wasn't even on my radar, that someone would want to have sex with a three-year-old."

Harvey later learned that the police who went through his apartment were looking for child pornography. They found none.

Karen checked herself out of the hospital and freed Harvey, using his car for bond money. At his request, she moved back to Geneva, after swearing in an affidavit that she believed Harvey was innocent of the allegations.

Harvey had never been charged with anything more serious than traffic tickets. He still had his job at EDS, although the company refused to promote him or give him any raises until the disposition of the case. After six months of waiting on an advancement there, he told his boss the charge was dropped. He was fired when EDS found out otherwise.

He moved on to Westinghouse, only to be fired again when the charge came to light. He got a job recruiting for a technical school, always dreading the day when his boss would walk in and say, "Harvey, get out of here."

Instead, nothing happened.

The accused man watched the months turn into years as the case seemed to be forgotten.

By 1991, he was in love with a woman named Amy Martin. They moved in together, got engaged -- and Harvey decided he would confront the charges against him before marriage.

Whether the Tarrant County District Attorney's Office ever would have pursued the case against Harvey is unclear. But one thing is clear: Harvey, an alleged child molester, was allowed to do as he pleased for more than three years.

Harvey tells of going to his attorney, former prosecutor Stan Hatcher, and saying, "Either I want the charges dropped or I want to go to trial." The lawyer was confident that he'd never "spend a day in jail," Harvey says.

The case headed to trial in October 1992. The assistant district attorney was Lisa Mullen. She'd earned a reputation for hardball tactics in compiling one of the most successful records of any Fort Worth prosecutor.

And her next target was John Michael Harvey.

Karen, contacted by Mullen in New York, stressed to the prosecutor she wanted the charges dropped. Mullen told her it was now a matter between the state and Harvey. Karen says Mullen "was trying to drill it into my head that he did it. I could not comprehend that."

Forensic evidence seemed scant. Mullen, herself eight months pregnant during the trial, had Dr. Andrew Nicolai testify that he examined Melissa in 1989. He said he had found no abnormalities. "There were no abrasions, lacerations, bruises." He testified that the child's hymen was still intact, making penetration "extremely unlikely." Her vagina was "a little wider than it should be," but he said that could be congenital.

A psychologist told jurors that Melissa suffered from attention deficit disorder, which could make her prone to fantasizing. Melissa had never indicated to the psychologist that she had been sexually abused. A Texas doctor who treated Melissa for the flu and diaper rash around the time of the alleged rape testified that he had noticed nothing unusual.

However, the criminal investigation had started when Karen's mother, Anna Martinez, was taking care of Melissa in Geneva. She called a sexual abuse hot line and took Melissa to social workers and wanted them to provide day care, saying the child had been acting out sexually. The grandmother testified that Melissa had told her in 1989 that Harvey "bit her tush."

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