Heart Broken

Despite the mounting evidence of innocence, a convict remains in prison

Convict John Michael Harvey complained to medical staff of chest pains, but he was ordered back to his cell after routine blood pressure and temperature checks. He later told his lawyer he demanded to see a prison doctor at his Allred prison unit, but a nurse instead threatened him with disciplinary action.

After 18 hours, sympathetic guards and a new nurse on duty got him removed to a Wichita Falls hospital. His diagnosis: heart attack.

"They told him at the hospital, because of the delay in getting him treatment, he had lost 20 to 30 percent of his heart muscle," says his attorney, Sean Buckley.

Harvey has lined up key witnesses in his latest appeal.
Scott Nowell
Harvey has lined up key witnesses in his latest appeal.
As seen in the June 12 issue
As seen in the June 12 issue

That's about the same percentage of his life the 39-year-old Harvey has spent locked up for a 1989 crime that almost no one believes he committed. Those include the trial judge, the jury foreman and the child Harvey was convicted of raping (see "Penned In," June 12).

His mother, Beverly Harvey, had spent her last 11 years -- and all of her money -- uncovering key evidence to try to clear her son's name. But just as Beverly Harvey's efforts seemed to be succeeding last spring, she died of recurring bone cancer only days before his summer heart attack.

His years of woes have come after what seemed like a promising career start in high-tech heaven. He had a good job, flashy sports car, motorcycle, fine apartment and active social life. Then he got a surprise call in 1987 that his former childhood sweetheart was living in squalor in Charleston.

Harvey rescued the pregnant woman, who returned with him to Fort Worth with her two daughters. Her children later went back to her hometown in New York, where child abuse counselor Becky Wendt insisted that the four-year-old told of being molested by Harvey.

Suddenly, the man who had never had a traffic ticket found himself charged with the aggravated sexual assault of a child. However, the case languished for more than two years before he pressed for a trial, eager to be vindicated. Instead, a firebrand Tarrant County prosecutor named Lisa Mullen gained a conviction and 40-year sentence against him in 1992.

Since then, Harvey has passed two lie detector tests. The complaining witness, now 18 years old, found out he'd gone to prison, and she swore in an affidavit that Harvey never molested her. In fact, that affidavit says her accusations against him were the result of bullying by Mullen and pressure by relatives who had custody of her earlier -- and who had a long-standing grudge against Harvey. The girl's mother agrees that he's innocent, and the daughter says she remembers that her real assailant was a big man with tattoos. Harvey has none.

If common sense were law, Harvey would be a free man today. But in Texas, overwhelming evidence of innocence is often not enough to overturn a conviction.

Chuck Mallin, appellate chief of the Tarrant County D.A.'s Office, says he found no credibility problems with the girl, although he has asked a state district judge for more time to investigate her information.

Attorney Buckley, hoping the D.A.'s office would not contest the appeal he filed in May, agreed to the extension. He also shared his evidence, including that the girl believed that the rapist may have been a family friend from South Carolina, where she stayed as a young child.

In September, investigators contacted the South Carolina man and eventually viewed him semi-nude in November.

"He doesn't have any tattoos," says Buckley. The defense attorney says Mallin told him that prosecutors would not have contested the appeal if the other man had any tattoos. Buckley calls it a "a red herring," saying the second man is "a manifestation of everything they failed to disclose."

Harvey's initial appeal in 1999 centered on a note found in prosecutor Lisa Mullen's files that indicated the victim had told Mullen about tattoos. An appellate judge said Mullen's explanation -- that the note could have been about another case, even though it included the victim's first name -- was "less than convincing," but he didn't overturn the conviction.

Mullen was quoted in June in the Fort Worth Star-Telegram (which started reporting on the appeal after the Press began investigating last spring) saying that she remembers little of the case. But when she was first contacted by the Press in May, she recalled many details of the case but was adamant that she did nothing wrong.

"I swear to you that little girl did not tell me that," she said of the tattoos. "I do not recall ever feeling that this guy [Harvey] was innocent."

Buckley is eager to get Mullen and Wendt on the witness stand in February, when the appeal is set to be heard. Marty Marion, the presiding juror in the trial, is also willing to testify on Harvey's behalf, as are the victim and her mother.

48 Hours has interviewed Harvey and other principals in the case, but Harvey is so despondent over recent developments, Buckley says, "He doesn't even want to attend the hearing.

"I'm not even sure he's in good enough health to make the trip," says the attorney. "He knows his mother basically wore herself out and he's very depressed."

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