Setting the Tone | 4

In this episode, we hear about the confession, the arrest, the SANE exam, and the year April spent in jail in pre-trial detention.

Even though she was presumed innocent, she was required to stay in jail on no bond due to the seriousness of her charge. 

We also hear about the politics playing out at the Tulsa County District Attorney's Office in the years leading up to the shooting, and what might've made DA Tim Harris hungry for a conviction in his first big murder case as DA.

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Resources:

• For crime scene photos entered at trial, supplemental info, and to see Lynda Driskell's letter to the parole board, visit okappleseed.org/episode-4-show-notes 
• To learn more about voir dire, jury selection, & potential policy solutions, check out this article: https://www.ncsc-jurystudies.org/__data/assets/pdf_file/0026/6839/buildgbettervoirdire_000.pdf
• Detailed Timeline of Events in April's Case compiled by April herself with help from her niece, Amanda: https://aprilwilkensblog.wordpress.com/2022/02/12/timeline-of-events/
• Sign the Change.org petition to support April's release: https://www.change.org/p/oklahoma-pardon-parole-board-commute-the-life-sentence-of-abuse-survivor-april-wilkens?signed=true
• Donate to keep our work going!: neappleseed.org/okappleseed
• Learn more about Oklahoma Appleseed: okappleseed.org
• If you or someone you know is experiencing domestic abuse, use a safe computer and contact the National Domestic Violence Hotline at www.thehotline.org or call 1-800-799-7233. You can also search for a local domestic violence shelter at www.domesticshelters.org/.
• If you have experienced sexual assault and need support, visit the Rape, Abuse & Incest National Network (RAINN) at www.rainn.org or call 1-800-656-HOPE.
• Have questions about consent? Take a look at this guide from RAINN at www.rainn.org/articles/what-is-consent.
• Learn more about criminalized survival at www.survivedandpunishedny.org/.
• Learn more about the Domestic Violence Survivors Justice Act at www.nysda.org/page/DVSJA.
• Follow the #freeaprilwilkens campaign on Instagram at @freeaprilwilkens, on Twitter and on their webpage at https://aprilwilkensblog.wordpress.com/.

Colleen McCarty is one of the hosts, executive director of Oklahoma Appleseed, and producer.  Leslie Briggs is the other host who is a civil rights and immigration attorney, and producer. Rusty Rowe provides additional production support. We're recorded at Bison and Bean Studios in Tulsa. Additional support from Amanda Ross and Ashlyn Faulkner. Our theme music is Velvet Rope by Gyom. 

Panic Button is created in partnership with Oklahoma Appleseed Center for Law and Justice and Leslie Briggs. Follow OK Appleseed on Twitter and Instagram at @ok_appleseed.

If you want to continue the conversation with other listeners, please join our Panic Button podcast community on Bookclubz at bit.ly/3NRHO8C.

 

TRANSCRIPT:

 

Leslie Briggs 00:00

If you're just tuning in, I suggest you go back and start listening from chapter one. Before we start a content warning: this episode contains accounts of domestic and sexual violence. This episode is going to be a little different than our previous three. This episode is being released in two parts. In part one of this episode, we'll detail April's arrest and her time spent in County lockup, and preview what the jury selection process is like, some global issues we see with the process, and summarize some of the more poignant and glaring juror stories that illuminate those global issues. In the second part, we take a break from the rigorous storytelling to offer our insights, analysis and commentary into the jury selection process. We hope to show you two things with this two part episode: one, how lawyers for both sides in this case attempt to use the jury selection to begin to manipulate the jurors and two, how prevalent domestic violence was in Tulsa in 1999... This is Panic Button: chapter four, Setting the Tone. I'm Leslie Briggs.

 

Colleen McCarty 01:52

And I'm Colleen McCarty.

 

Leslie Briggs 01:54

We need to get into everything that happened from the arrest to the trial. But if you've ever spent time in a jail or a prison, you'll know not much happens in there.

April spent a year in pretrial detention after the shooting and before the trial. She was presumed innocent, but most murder defendants are held on no bond, meaning they would not have the chance to be out in the community before the trial. We told you in episode one that four officers responded to the shooting call at 38th and Lewis and Tulsa on the morning of April 28, 1998. Those four officers were Laura Fadem, H. G. Lawson, Officer Forester, and Officer Gann.

April told them immediately what had happened. Officer Lawson testifies the April looked quote, "Like she had been up all night, just kind of bedraggled looking." Officer Lawson went to the basement to check on the victim of the shooting and to make sure there was no one else in the house who could be armed. Officer Gann went with him. They see a blue Navajo-style blanket covering a body with blood coming out from where the head would be. And the blood pools all the way to the baseboards of the wall.

On a cluttered table near the door, there's a gun, a walkie talkie and lots of drug paraphernalia. And there are handcuffs covered and a dried white liquid. Officer Lawson checks the body for a pulse. He states it's ice cold to the touch and that there are no signs of life. He notices the body is riddled with holes. There are shell casings all around him. The police department calls in their homicide detectives to process the scene and they send April back to the station with Officer Fadem. April had been telling officer Faden the whole story, both before and after being read her Miranda rights. When they got in the car, this is what officer Fadem says happened.

Quote, "Yes. When we got in the patrol car, we started towards the Detective Division. I remember she asked me if I would turn on a certain radio channel on the radio. And I said sure, you know, she - it was - it was rock and roll channel. None of the buttons on my radio were rock n roll. So I had to tune it in. I remember it was like 10 Maybe 104. Something like that. So I tuned the Rock n Roll channel for her. And she wanted it turned up a little louder. So I turned it up a little louder. And that seemed to kind of - she enjoyed that. I guess it kind of relaxed her a little bit." When they arrived at the station. April goes with Officer Fadem into an interview room. She told the officer at the house that she had been raped and that Terry had beaten her and tried to break her neck. Even still, Officer Fadem won't say on the stand that April had been raped or injured. Officer Fadem does say there's a red mark developing on April's face as the day goes on. On cross examination, officer Fadem continues to say that April was quote excitable. Like she had something to tell everyone and she just couldn't hold it in. Officer Fadem tells April's attorney that she finds us excitable demeanor to be inappropriate to the situation. I just want to interject also here that Officer Fadem's testimony is almost comical in the fact that she uses the word "consent" wherever possible and avoids the word "rape" wherever possible. She'll say things in her testimony like "she consented to going upstairs," implying to the jury, I think, that April was consenting to some of the things that happened to her that night. I think it's just a curious way that she chose to testify. Once they get back to the station, in the interview room, the officers set up audio and video recording equipment.

We hope to be able to have some of these pieces of evidence for you but as of yet we still don't have access to it. Detective Makinson who is at Terry's house processing the scene leaves and heads towards the station once he learns that Officer Fadem is interviewing a murder suspect, potentially on her own. Even though April has told all the officers at this point that Terry had forcible sex with her and tried to break her neck before the shooting, they're insisting that she go to the station and make a statement before she can be treated for her injuries or be given a SANE exam. You'll remember saying as the Sexual Assault Nurse exam.

Detective Makinson takes a taped statement with April. April again tells the story as it happened. She never wavers. Finally, after concluding this interview, April is allowed to go to Hillcrest and receive a SANE exam for her internal and her external injuries. They collect her clothes, hair samples, scrape underneath her nails and gather potential DNA. Sidenote, that at trial when Assistant District Attorney Rebecca Knight and Gail asks, Detective Makinson, if he tested the rape kit, he responds, "In fact, I thought that Kathy Bell, the SANE nurse was going to do that. And you pointed out to me that it needed to be done. And I think you did it. So I didn't do that, no." Yes, that is the ADA asking the homicide detective at trial if you tested the defendant's rape kit, and the homicide detective is responding in front of the jury that no, he didn't test it because he thought she had done it. The question of who tests the rape kit is never answered.

That evening after the SANE exam April goes to the station and gets booked into the jail. By this time it's 10pm. The shooting happened around 8am. April's case begins to wind its way through the analysis of our justice system. She is appointed a public defender a young lawyer named Daman Cantrell. Mr. Cantrell worked for the Tulsa County Public Defender's office at the time, but, now, he as well as Assistant District Attorney Rebecca Nightengale serves on the bench as a Tulsa County District Judge. He works on civil cases now and still remembers this case as one he, quote, "really would have liked to try himself." I am sure April and everyone who knows her wishes that too. When Mr. Cantrell was her attorney, he worked hard to make sure that April got the mental health treatment she needed in the jail. He gets another, female attorney, Lynn Worley involved in the case, she is able to gain admittance to visit April and she is able to bring Licensed Professional Counselor Lynda Driskell in with her. The two of them visited April for a total of 40 hours of therapy during the year she served in the county jail. Here's an excerpt of a letter from Lynda to the parole board in 2009:

"I met April in July of 1998, when I became involved in her case as an advocate and counselor with domestic violence intervention services in Tulsa, Oklahoma. At the request of the national clearinghouse for the defense of battered women, April's case was referred to DVIS so that she would have access to counseling during her trial. April was initially held in the Tulsa County Adult Detention Center in Tulsa while she awaited trial. I met with her there for approximately 40 hours of face-to-face counseling sessions and wrote a pre-sentence investigative assessment report on her behalf. Since she has been incarcerated at Mabel Bassett Correctional Facility, I have maintained contact with April for the past 11 years.

Her parents, Rex and Louise Fitchue, have also kept me apprised of the outcome of April's appeals. My first impression of April as a sensitive, compassionate young woman has not changed since I met her all those years ago. At that time, her story of domestic violence paralleled the hundreds of stories I had heard from other women who were battered. However, the outcome of her circumstances was the most tragic of any case in which I have been involved.

The photographs and forensic documentation of the brutal injuries April sustained from Terry's acts of physical and sexual violence, strengthened my belief that she acted in self-defense. I sincerely believed then, as I do now, that April did what she had to do to survive. April acknowledges that Terry Carlton's death was a horrible loss for his family. And, at the same time, April has always maintained that she would have died if she had not defended herself against Terry's brutal assaults and threats to kill her.

April also acknowledges the pain that Terry's family has endured. And I believe for that she is truly remorseful." Lynda was actually an expert on battered woman syndrome. And she's who April's defense attorney should have called it trial, but didn't. We'll talk about that more in a few episodes. A few months before trial, April's parents began to grow uneasy at the thought of leaving their daughter's fate to a public defender. An insider tip: if you're ever entitled to a public defender, you should take it because a, they absolutely know what they are doing. And b, oftentimes have better relationships with judges and prosecutors because they're around them so much. So her parents get the money together to hire a private attorney, and they choose a man named Chris Lyons. You're going to hear a lot about Chris Lyons on this podcast. I think it's worth saying here that hindsight is 2020. And there are always things that you wish you would have done differently, especially in a murder trial. And also a lot has changed in the last 20 years around how we talk about domestic violence, how we think about drug addiction, and how we go about defending a murder case like this, as well as how April would have been seen by her peers. Nonetheless, it's unavoidable. We will be talking about Mr. Lyons and some of the choices he did and didn't make in defense of his client. And as of the time of this recording, we have reached out to Chris Lyons office trying to start a dialogue with him about this case, but we have not yet heard back. If that changes, we'll be sure to update you.

A year goes by mostly without incident as April languishes in the county jail. Outside the jail, there's some big drama going on in the Tulsa County District Attorney's office. Longtime top Tulsa cop and elected District Attorney David L. Moss died of a heart attack in 1995, just one year after being elected to his final term. His first assistant, Tim Harris was appointed interim District Attorney until then-Governor Keating appointed former mayor Bill LaFortune to the role. In May 1998, a month after April shot Terry in self-defense, LaFortune announced that he was resigning and Governor Keating was faced with another tough appointment.

Just six months before the next DA election. Keating chose Chuck Richardson, who Keating describes to the Tulsa World at the time as a nail-chewing, anti-crook aggressive prosecutor. Governor Keating stated that that was the kind of prosecutor Tulsans wanted. He chose Richardson even though public records showed that Richardson's father, Gary, had donated 1000s to Keating's campaign. In addition, Richardson did not have the support of the Tulsa police department. Years prior, Richardson had defended a murder case, quote "a little too zealously," according to police, who said that he browbeat them on the stand. You can imagine, once TPD realized that Richardson was going to mount a full-on campaign for DA that fall of 1998, they needed to come up with a challenger who they could fully support. Former first assistant district attorney Tim Harris filed in the race to run against Richardson.

Even though Harris only raised $30,000 compared to Richardson's $117,000 (and those are 1998 dollars), he won the seat in November '98 to take office in January 1999, just four months before April's trial. It's worth noting that the Tulsa World actually calls out Harris's two largest donations that are in the $2,000 range, and one of them is from his mother. The 1998 race was the first one in a long time to break campaign donation records. Harris would go on to collect thousands in donations over the years, and he would be reelected three more times until he chose not to run again in 2013. We're obviously going to talk a lot more about Mr. Harris as we go on. But for now, let's look at the landscape right before trial. Tim was a big underdog to a very moneyed candidate who had the backing of Oklahoma's tough-on-crime governor. And yet, Tim won. And now he has to prove himself. He has to show the people of Tulsa County that he can deliver.

April's case is one of the biggest cases to go at that time. And it's one of the first big murder cases Tim Harris will try as elected prosecutor. It's also one of the first cases to officially use battered women's syndrome as a defense after it was certified as admissible by the Oklahoma Court of Criminal Appeals in a 1995 case called Bechtel v. State. On April 5, 1999, April's murder trial officially began. Chris Lyons and his legal assistant Ed Clark, who had just graduated with an Associate of Applied Science degree in Paralegal Studies the year before, were sitting at the Feds table with April. At the prosecutors tablem were newly-seated district attorney Tim Harris and his first chair, Rebecca Brett-Nightengale. Ms. Brett-Nightengale also goes on to run for district judge and wins the seat in 2003. She still sits on the bench today, and is one of the longest standing judges in the district.

April's father came to every day of the trial and her sister, Mary, took detailed notes each day to report back to their mother. In Tulsa, Jurors are pulled from a cross section of the population that have driver's licenses. Everyone who gets assigned to jury duty that week shows up Monday morning and they sit in the basement of the courthouse until their name is called. And they're sent to a courtroom where a jury trial is about to happen. Then the lawyers commence a process called voir dire. Voir Dire is French for "to speak the truth." This is the process of making sure your jury panel is truly impartial to both sides, and that each juror understands a few critical things. One, the defendant is presumed innocent of the charges presented and, two, the state has the burden of proving every element of the crime charged. The defense does not have to prove anything.

Voir dire, or voe dy-er if you're an Oklahoma State Court attorney, is the literal most boring part of a criminal trial. However, it's also one of the most important things and you can win or lose cases on voir dire. The goal is to choose 12 impartial jurors and one alternate in case someone gets sick or cannot make it back to the court for some excusable reason. Each attorney's side gets nine peremptory strikes. A peremptory strike, just as a side note, for the non-attorneys listening is an opportunity to strike a juror to get rid of them with - without reason. You don't have to have cause. But, and this is important, if an attorney can get someone to say that they cannot be fair or if the court gets them to say it, then they must be struck for cause. So that's the difference peremptory you strike them. You don't have to have a reason. Except you can't be discriminatory based on race.

If you testify during voir dire as a juror, that you can't be fair, impartial, you'll be stricken for cause. And this makes sense if you think about it, because it's in the interest of both sides that anyone be removed, who says they cannot be fair, if an attorney believes someone might be able to be fair, but they just don't like the perspective that person brings to the trial, then they can use one of their peremptory strikes, it ends up being a big strategy piece - how you use your strikes on who how to see what the other side is striking. So naturally, if you can get one of the jurors you don't like stricken for cause, that it's more peremptory strikes for you to exercise on people who clearly favor one side or the other. But they won't come out and say, "Look, I can't be impartial." So yeah, it starts getting heady really quick.

But another way attorneys use voir dire is to begin to create a narrative and set the tone for their case. And a really masterful attorney can pique the curiosity of jurors with the types of questions that they ask. And if they traverse the landscape carefully enough, they can begin to prejudice jurors against the defendant or against the state subliminally. We see this happen in April's case almost immediately. First, it's a huge advantage, but the state gets to go first and talk to potential jurors. So Tim Harris, the one we just talked about a little bit ago who just got elected, he gets to go up in front of the potential jury pool. There are 12 jurors in the box and probably 20 people sitting out in the gallery of the courtroom. But the people sitting out in the gallery have to pay just as close attention to the questions as everyone in the box because when someone gets stricken from the box, they randomly call someone out of the gallery to come and fill that spot. So, the process takes a long time.

In April's case it took five whole days to pick the jury. Tim Harris talks to the folks in the box for a long time and his primary focus being the fact that they were going to hear things about intravenous drug use and quote, "violent relationships that would be completely foreign to them and foreign to their ways of life." What this does is immediately begins to other April as someone foreign to the jury, she is someone that they can never understand or get behind. She's dirty, she uses drugs and she fights. She's one of those women who can really antagonize you if you know what I mean. He asked the jurors if they have ever experienced abuse, if they know any police officers if they would be biased against April or for April because she is moderately - yes, he said moderately - attractive. The questions go on for what seem like ages. By the time Chris Lyons the defense attorney is able to get up and speak to jurors, they are completely worn down and intellectually exhausted. And they view Tim Harris as their faithful guide through this extremely confusing and exasperating legal process.

 

So as you can see, this trial gets complicated fast. Once the jury is chosen, things really get up and running, and we can see two sides emerging. One is clearly gaining more traction in the room, and the two sides are, one: April was a poor, dirty drug addict who needed to get her fix. She was a gold digger. She used Terry for money, and vacations and ultimately went to his house that night to kill him and rob him. Two, the other side: April was a battered woman who had tried to call the police and file protective orders but to no avail. And because the system abandoned her, she had to take matters into her own hands to protect yourself.

 

Voir dire is a necessary and important part of the entire trial process. In theory, it keeps us from devolving into blood feuds when a conflict arises amongst members of our society, calling 12 people from the community at large to decide what is fair and just is a poetic way to keep the peace. Jurors are some of the most powerful people in our society. They decide the norms we must abide by within the bounds of the law. So who makes it onto a jury is important for how our communities dole out justice... In part two of this week's episode, Colleen and I will be exchanging stories to highlight just some of the curious, upsetting and strange ways both the State and Defense go about selecting the jury. This jury pool has a very high number of potential jurors who have experienced domestic violence or mental health issues. There are stories that illuminate the problems of disproportionate dismissals of black and brown jurors, female jurors, jurors who have documented mental health diagnoses that are completely managed, among others. We hope you'll find our analysis of the jury selection process insightful before we return to storytelling next week. So check out part two of this week's episode to hear jury selection analysis in detail. In next week's episode, we'll be taking a deep dive look at one of the state's witnesses who offers particularly damaging testimony against April. Panic Button is a co-production of Oklahoma Appleseed Center for Law and Justice and Leslie Briggs.

 

We're your hosts Colleen McCarty and Leslie Briggs. Our theme music is Velvet Rope by GYOM. The production team is Leslie Briggs and Rusty Rowe. We're recorded at Bison and Bean studio in Tulsa. Special thanks to Lynn Worley, Amanda Ross, and Ashlyn Faulkner for their work on this case. If you or someone you know is experiencing domestic abuse, use a safe computer and contact the National Domestic Violence Hotline at thehotline.org or call 1-800-799-7233. Help others find our show by leaving us a rating and writing a review. Follow us at OK_Appleseed across all social platforms. You can subscribe right now and the apple podcast app by clicking on our podcast logo and clicking the subscribe button. If you want to continue the conversation with other listeners, please join our Panic Button podcast community on Book Clubs. Join for free at Bit.ly/3NRHO8C. Thanks so much for listening.