By Camilo Smith
By Craig Malisow
By Jeff Balke
By Angelica Leicht
By Jeff Balke
By Sean Pendergast
By Sean Pendergast
By Jeff Balke
Chuck Mallin, appellate chief of the Tarrant County D.A.'s office, dismisses the tattoo note as "gibberish." He says the appeal lacked merit, and that trial attorney Hatcher "did a damn fine job in that case." Hatcher, now back working as a Tarrant County prosecutor, did not return calls from the Houston Press.
Judge Harry Hopkins didn't buy Mullen's explanation about the note. "By far the most disturbing matter before the court is the allegation of prosecutorial misconduct, especially as it relates to the failure of the prosecutor, Ms. Mullen, to disclose exculpatory evidence to defense counsel," he wrote. "Ms. Mullen's attempted explanation was something less than convincing as to just what prompted this handwritten note."
However, Hopkins upheld Harvey's conviction, saying there was no direct evidence at the hearing that the victim had ever told anyone that the perpetrator had a tattoo.
Without Melissa's testimony, the judge implied, there was no smoking gun. Harvey's family had searched in vain for the girl, hoping to get her side of the story. Mallin says investigators for the district attorney had also tried to find Melissa in 1999, but "her stepfather didn't want her to be found."
In a state where critics say the standards for overturning a conviction are impossibly high, it seemed that Harvey had only one way out after the appellate hearing. He would be eligible for parole in 2002, after serving one-quarter of his 40-year sentence.
His case falls under a Texas law with a parole rate of less than 1 percent. Twelve of the 18 parole board members -- not just a simple majority -- must vote to release him.
The family enlisted veteran parole attorneys Sean Buckley and Bill Habern, but both were skeptical initially. "You can't win those child molester cases," Habern says. But after reviewing the evidence, he says, "I started thinking, 'This guy is innocent. We might be able to do something here.' "
At the parole hearing, the attorneys presented videotaped testimony from Karen, a letter from Judge Thornton supporting Harvey's parole, the polygraph results and other evidence from the 1999 hearing. The parole board voted 10-8 in Harvey's favor, still two votes shy of freedom.
Archer-Smith offered to have Harvey stay in her home if paroled, but prison officials nixed that plan -- as a sex offender, he wouldn't be able to come within 500 feet of any children, even her two kids. "It seemed like all the doors were closed," she says. "We had pulled out all the stops trying to find Melissa and there just seemed like there was nothing left to do."
Actually, an investigator for Beverly Harvey found Melissa living in California with relatives of the stepfather, J.R. Williams, who had been granted custody after Harvey's conviction.
Harvey's family says Williams kept Melissa hidden from them and told her John Harvey raped her.
Melissa also says that Williams, before Harvey's trial, "told me to say this is what John did to me and I need to say this and this and this, and he needs to be put away." She now says Williams was angry that Karen had left him in 1986, and he blamed Harvey for that. (Williams could not be reached for comment.)
Beverly Harvey's investigator got into an ugly confrontation with Williams's relatives. Williams sent the girl back to Karen, who hadn't lived with her daughter in eight years.
It wasn't until last winter that the two began talking about the rape and the trial. "One day the floodgates opened and it all came out," Melissa says. She hadn't realized earlier that Harvey was in prison for the rape, she says, because the 1992 trial had seemed like a weird dream. Karen remembered that Harvey had a cousin in Houston, and in February she called Archer-Smith.
"You may not know who I am," Karen's phone message began.
"I knew exactly who she was," says Archer-Smith. "I had read her name 10,000 times. I knew the birth dates of her children. Even though I'd never met her, I felt like I knew her better than I know most of my friends."
Archer-Smith was stunned that Karen had left a Houston number. "I called back immediately. When I asked if she knew where Melissa was and she said, 'She's with me,' I nearly wrecked the car."
Melissa wanted to help free John Harvey. Attorney Buckley thinks their statements, along with the other evidence, will convince an appeals court to overturn Harvey's conviction. The centerpiece of Buckley's argument is Melissa's affidavit. It begins:
"Around the time I was 3 or 4 years old, I was sexually molested by a man. I do not know the man's name, but I think I might recognize him if I saw him again. I do remember that he was a very big man with a tattoo. I also know for sure, and I have always known for sure, that the man was not John Michael Harvey."
Harvey, her affidavit says, never molested her.
"I am very angry with the prosecutor," Melissa says in the affidavit. "I feel that she took advantage of me because she wanted to win her case."