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?

Martinez also admitted she had never liked Harvey.

Melissa was interviewed by Becky Wendt, the director of family violence services for a nonprofit agency in Geneva. She testified that Melissa "spontaneously said, 'John touched it, my peepee, with his hand.' " Wendt says the child also told her that Harvey locked her in a closet and threatened her to keep quiet.

Wendt said that in five sessions with the young girl, Melissa detailed vaginal, oral and anal rape -- and says the girl told her the man who did it was John Harvey.

Harvey demanded dismissal or a trial on the charges 
that later sent him to prison.
Daniel Kramer
Harvey demanded dismissal or a trial on the charges that later sent him to prison.
Better times: Harvey and his mother in 1991.
Daniel Kramer
Better times: Harvey and his mother in 1991.

However, Melissa was hardly as spontaneous on the witness stand.

Mullen asked her, "Has anybody ever done anything, something to you, touched you in a way you didn't like?"

"No," the girl replied.

"Okay, has anybody ever touched you in a private place?"

"No."

"Do you remember anything bad happening to you while you were here?"

"No."

Mullen delved into questions about whether anyone "put anything in one of your private places" and even asked if she was just scared.

Melissa kept telling her no.

At several points, the girl tried to get up and leave. Mullen told her to sit down. "She froze," Mullen says. "I thought I was going to have to ask for a dismissal."

What happened next is what critics contend was coached testimony.

The child told Mullen she remembered talking to her earlier, but she said she hadn't told her about anyone touching her inappropriately.

"You need to listen to my question, okay?" Mullen said. "Do you know somebody named John Michael Harvey? Let me ask you that."

"Yes."

Melissa began saying yes to all of Mullen's questions -- the same questions she'd said no to moments earlier -- except now Mullen was saying "John Harvey" with each inquiry about sexual contact. Melissa said yes to all of it.

"I knew what [Mullen] wanted me to say," Melissa says today. "I have never been pushed as hard as I was pushed that day.

"I would have said anything to get off that stand. I was just so embarrassed. My mother wasn't there" -- Karen was to testify later and was not allowed in the courtroom -- "so I couldn't say, 'Mommy, come get me.' All I had was my grandma, and she just kept putting her hand up at me, like, 'Sit up there. Stay.' "

Harvey still had his witnesses. One of them was Karen, who said she noticed no abuse of the child and that her mother had been vindictive toward Harvey. But she seemed hazy on details. She also testified that Harvey told her that were he to be convicted, she might get in trouble for not reporting the abuse.

Harvey himself denied any sexual contact with Melissa, then told Mullen he'd never beaten Karen.

"I guess, then," the prosecutor shot back, "you don't recall an evening where she confronted you and you beat the hell out of her?"

An irate Judge R.E. Thornton immediately retired the jury and scolded Mullen for her "highly inflammatory and highly improper" question. Jurors were told to disregard the comment, but Thornton refused to grant a mistrial.

Then Mullen, Perry Mason-like, called a surprise witness. She said she had a rebuttal to Harvey's denial of physical abuse: a former neighbor.

Texas, with rare exceptions, doesn't allow surprise prosecution witnesses. Mullen had never notified the defense that she intended to use the neighbor in the trial -- the prosecutor said she thought Harvey would admit to domestic abuse so there would be no need to call that witness.

Hatcher's objections were overruled, and devastating testimony followed. The neighbor said Karen had called her collect from a phone booth in 1990, and she had picked up the bruised woman. She said Karen told her Harvey beat her after she confronted him with allegations of child sexual abuse. The neighbor insisted she even had the phone records to prove it.

Hatcher didn't ask for that proof, and he didn't call Karen back to the stand to deny the testimony.

The jury deliberated for two days. When the verdict was read, Harvey's mother turned to comfort his fiancée, Amy Martin. "Don't worry," she said. "We'll get him out soon. He won't do four years."

Martin told her, "They said 40 years -- not four."


Beverly Harvey has since devoted her life to freeing her only child. Her tiny Florida condo has been mortgaged and converted into a legal office. She has spent more than $200,000. Over the past decade, a small army of attorneys, investigators, family and friends has been working on the case.

Harvey had told almost no one in his family about the trial, saying, "I never thought I could lose." Archer-Smith only found out in 1995 that her cousin was in prison. Initially, she thought Harvey might be guilty. She wondered, "Why else would a jury convict him?"

Archer-Smith began researching the case and found that the phone records of Harvey's former neighbor showed there had never been a collect call from Karen -- who has always denied the neighbor's story.

Also curious was that the neighbor had two hot check charges pending when Harvey was indicted. Those bad check charges were later dismissed -- by prosecutor Ken Mullen, Lisa Mullen's husband at the time.

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