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?

Mullen is adamant that she did nothing improper, but declined an opportunity to read Melissa's statement. Becky Wendt said she would read it and then comment to the Press. She did not return further phone calls after the Press faxed the affidavit to her in early May.

Jury foreman Marion read the affidavit and offered to assist with Harvey's appeal.

After signing her statement in March, Melissa had one question: "When do I get to see him?" Harvey would like to know the answer to that question, too.

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.

Lisa Mullen and another prosecutor were fired from the D.A.'s office in 1998, after an incident at a softball game. A group including Mullen began heckling opposing Hispanic batters with shouts such as "Yo quiero Taco Bell." Mullen says she didn't taunt anyone but admits drinking beer illegally at a city park.

Sources who worked with Mullen say she was fired for her abrasive manner -- that the softball incident was just a pretext. A former prosecutor said that "she's the type of person who would get pissed off if a police officer was late to a meeting." District Attorney "Tim Curry was tired of listening to complaints about her."

The other prosecutor fired then was quoted in the Fort Worth Star-Telegram as saying he was a "sacrificial lamb," let go only to justify Mullen's dismissal.

Mullen now faces criticism as a defense attorney for her role in another case that also involves surprise witnesses, dubious testimony and nonexistent phone calls.

Her client, Jimmy Watkins, shot his wife, Nancy, and her boyfriend in 1999. He thought he was out of bullets and fled, only to find later that he had more ammo. Watkins drove back and emptied his pistol into his wife, killing her as she was talking to a 911 operator.

Mullen used a "sudden passion" defense by presenting her surprise witnesses, a mother and daughter who said they were with Watkins hours before the shooting. They testified that Watkins received a call from his wife and handed his cell phone to them. They heard the unmistakable sounds of Nancy Watkins performing oral sex on her boyfriend, they said.

"That was the sudden passion," says James Cook, the Tarrant County prosecutor who handled the Watkins case. "They were providing the proof of a triggering event, and the jury went for the testimony." Mullen's client got probation for murder.

But Cook felt he was hearing lies, even if he couldn't prove it at trial. He wondered, "What does a blow job sound like over a cell phone?" He subpoenaed Watkins' phone records and found "there was no such call."

The women pleaded guilty in April to misdemeanor perjury. Cook says, "They admitted they lied during that trial."

Mullen did not comment on the Watkins case or on allegations raised by Harvey's lawyer, Sean Buckley.

"What the evidence shows here are some acts that go beyond just malicious…There's a pattern here of 'Don't get in my way,' " Buckley says.

Last month, Buckley discovered yet another note handwritten by Lisa Mullen in the prosecutors' files. That note indicates that Mullen was considering having photographs made of a tattooed man in South Carolina. Melissa and her mother say they suspected him of being the rapist.

Buckley hopes to get Harvey's conviction overturned on the basis of "clear and convincing evidence of innocence." There is legal precedent based on the case of Joe Elizondo.

The Texas Court of Criminal Appeals narrowly voted to overturn Elizondo's conviction in 1996, after his stepchildren recanted their claims and said their biological father was the real molester.

However, the judges now on that court are far more conservative, and have been known to reject appeals even when DNA tests and other evidence have shown prisoners were wrongly convicted.

Habern is confident that Harvey can be released when he comes up for parole again next year, but Harvey does not want that way out because it would require him to confess to a crime he swears he never committed.

Release as a registered sex offender would also vastly restrict his future. Harvey would have to wear monitoring devices, post a warning sign outside his residence and avoid anyplace where children commonly gather.

In Fort Worth, Chuck Mallin has Melissa's affidavit sitting on his desk in the district attorney's office. "We're going to have to reinvestigate, again," he says. Buckley has agreed to share his evidence, hoping that Mallin will not contest the appeal.

Back in Houston, Buckley has been pulling 14-hour workdays on the appeal, which was filed May 23.

"I just want to get this guy out," he says. "It's the most clear-cut case of innocence I've ever dealt with."

Thirty miles from his office, Melissa is adamant that Harvey did absolutely nothing to her, and she wants him to have his freedom. "I remember him as a very, very sweet person. I want to do this for him." As for her abuse, she says, "It's in my memory, but it's in the past and I'm trying to get on with my life now."

The vivacious teenager enjoys floral design, which she eagerly shows off to visitors. Melissa wears a ribbon on her jacket in memory of a classmate who died of cancer earlier this year.

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