Fort Worth Star-Telegram (TX)

March 5, 2004

Prosecutor takes stand in hearing on '92 case

Author: MAX B. BAKER; Star-Telegram Staff Writer

FORT WORTH--A former prosecutor denied Wednesday that she withheld evidence or pressured anyone to testify against John Michael Harvey, a Bedford man who claims he was wrongly convicted of molesting a 3-year-old girl.

Lisa Mullen, now a criminal defense attorney, said she also has no doubt that Harvey, sentenced to 40 years in prison in 1992 for the crime, was the girl's attacker. The victim, now 18, has recanted her previous testimony.

"I didn't push this case to trial," Mullen testified in state District Judge Sharen Wilson's court during a hearing on whether Harvey should be granted a new trial or be set free.

"I've disqualified murder cases when I felt that someone was innocent."

On Wednesday, the victim and her mother testified that Mullen had "badgered" them into testifying against Harvey and that they were told to withhold evidence about another man they believed could be the attacker.

Harvey's attorneys are arguing that the girl's recantation supports their client's claims that he is innocent. They also are arguing that some evidence should have been disclosed to the defense before the trial.

Among the evidence were notes taken by Mullen indicating a big man with an eagle tattoo on his backside may have molested the girl. The girl's mother identified that man as a family friend in South Carolina.

Mullen said she can't remember why she wrote that down, but she denies being told by the girl's family that the man was a possible suspect.

"It is not consistent with her actual notes," said David O'Neil, one of Harvey's attorneys. "They had to have prior knowledge of the evidence and that evidence should have been turned over to the defense."

Almost 12 years after Harvey's trial, the complicated facts of the case, the large cast of characters scattered across the country and allegations of an overzealous prosecution continue to haunt the district attorney's office and Harvey's family.

The Star-Telegram reported last year that the victim had voluntarily recanted her testimony that identified Harvey as her attacker after learning that he was in prison.

The judge and jury foreman in Harvey's original trial also have said that the new evidence and allegations that someone else may have committed the crime have made them wonder if Harvey is guilty.

Wilson will decide if there is sufficient evidence to revisit the case and make a recommendation to the Texas Court of Criminal Appeals.

The girl, identified as S.R. in court documents, now denies that Harvey was her attacker. She also has said that she didn't know her attacker's name but that he was "a very big man with a tattoo." Harvey is slight and has no tattoos.

The girl also testified Wednesday that she has learning disabilities that affect her memory and that she has given conflicting statements about the case.

Gloria R., the girl's mother, testified that the family friend in South Carolina has tattoos. The Star-Telegram typically does not name sexual abuse victims or family members.

However, Mike De La Flor, an investigator for the Tarrant County District Attorney's office, testified that he went to South Carolina in October and viewed the man's entire body. He said that he did not find any tattoos or evidence that tattoos had been removed.

Also testifying Thursday was a New York psychologist who works with sexual abuse victims. She told the court that she interviewed S.R. five times before the trial, after the girl had been sent from Texas to New York to live with her grandmother.

The psychologist, Becky Wendt, said that S.R. told her that Harvey -- or "Daddy John" as she called him -- had touched her in sexually inappropriate ways.

Sean Bradley, another of Harvey's attorneys, tried to discredit Wendt by pointing out that her testimony in a controversial sexual abuse case in New York had helped to wrongfully convict another man who was later cleared.

Chuck Mallin, chief of the Tarrant County District Attorney's appellate division, said after the hearing that the defense had not presented sufficient evidence to justify a new trial for Harvey.

But Eva Archer-Smith, a cousin of Harvey who watched the proceeding from the courtroom, urged the judge to ask herself, "Did this guy do it?"

"I think there was never enough evidence to convict him," Archer-Smith said.

Max B. Baker, (817) 390-7714 maxbaker@star-telegram.com