T H E W R O N G F U L C O N V I C T I O N O F J A M E S H A R R O D By John Albert

Jeanne Gunter was an attractive, youthful and vivacious 39-year-old woman in 1971 when she first met Ed Tovrea. They gradually came to know each other over the next two years and then, in 1973, they were married. Jeanne was finally able to lead the life to which she had long aspired, as a glamorous, wealthy socialite in Phoenix, Arizona. Ed Tovrea was a very successful, wealthy and prominent, 67-year-old man.

They had been married for ten years when Ed died in 1983 of natural causes. In his will Ed left 200 thousand dollars to each of his three children and the balance to his wife, Jeanne. The estate Jeanne inherited was worth about 2.3 million dollars in cash, plus she gained control, as executor, of the land trust which gave her an income of approximately $300,000 per year. The real estate portion of Ed Tovrea's estate which had been set aside in the trust was a 43-acre parcel of land with the famous landmark, "Tovrea Castle," on it. That land is in a prime location. It was then valued at 3.9 million and is currently being sold for 754 million dollars. Ed's will states that the land trust reverts to his children upon Jeanne's death. His son, Ed "Hap" Tovrea, was made a trustee of that land trust.

Then Jeanne herself died on March, 31, 1988, a violent, unnatural death, of gunshot wounds. She had been murdered in the bedroom of her home. She was shot five times in the head, professional execution style.

Jeanne had never managed to win the affection of her husband's children. They had been friendly at times but the children resented the way Jeanne had restricted their access to their father especially during his last months before he died. And they resented the fact that they were left out of their father's estate in his will. Jeanne had inherited nearly everything. When she was killed, her step-children became suspects. The prosecutor pointed out that, Hap Tovrea, stood to gain control of the land trust from his father's estate upon Jeanne's death. That was offered as a motive for the murder.

The cash portion of Jeanne's estate passed to her real daughter, by a previous marriage, Deborah Noland Luster. If one "follows the money," it would also implicate Deborah. Jeanne had not been any more successful in endearing herself to her own daughter than to her step-children. She and Deborah had been estranged in the months before Jeanne's murder. Jeanne was quoted by her sister as telling both her best friend and her insurance agent a few weeks before she died, that she intended to change her will to disinherit Deborah.

There is a third theory of the murder. Jeanne Tovrea was a thrill-seeker, unrestrained by legal or moral compunctions. According to police records she was involved in several illegal enterprises. She was a drug dealer, she transported drugs, she financed drug deals and she had been operating a loan sharking business with people who were reputedly gang connected. Jeanne told many of her acquaintances the details of her illegal activities and her relationships with gangsters. She was not a discreet or circumspect person. This theory of the murder suggests that Jeanne had come to know too much about her cohort's criminal activities so she was killed to silence her. The police investigators have a confession made in 1991 from a man who says that he was hired by Jeanne's criminal associates to have her killed. He admits to his part in the murder and names the people who hired him and the actual killer. He quotes the actual hit man confessing to him.

The police did not, however, make formal charges against anyone for the murder of Jeanne Tovrea. The case went unsolved until an "Unsolved Mysteries" program highlighted the case. A man from Albuquerque, New Mexico, called the police anonymously in Phoenix, Arizona, in December of 1993, to report that after watching that program, he knew the killer to be James Harrod. Finally, twenty months later, on September 14, 1995, the police arrested Harrod and charged him with the murder. He was tried and convicted on May 27, 1998, and sentenced to death.

Jeanne Tovrea lived in a guarded, gated community on the side of a mountain in Phoenix , Arizona. The prosecutor's theory was that James Harrod, and a hired hit man, hiked over the mountain, came into the private community from the rear, entered her backyard through the fence gate, then broke into her home through the kitchen window. Harrod, who weighed 225 pounds, supposedly climbed through the twenty by twenty-four-inch window opening after having carefully removed the glass. Having gained entry, he supposedly helped his unnamed accomplice into the house and then he remained in the kitchen while the accomplice committed the murder in the bedroom. Then they both left through the sliding patio door, setting off the house alarm but leaving no tracks in the pure white carpeting.

Ten years after the murder, at James Harrod's trial, the police claimed to have found twelve fingerprints matching Harrod's prints on a pane of glass. That pane of glass had been removed, intact, from the kitchen window, by removing the vinyl glazing bead. But James Harrod had never been there. His fingerprints were never on that glass or anywhere at that house. No photographs of the latent fingerprints were taken. Some of those prints were negative impressions. That is, where the ridges and furrows are reversed. The pane of glass itself was never taken into evidence by the police. It was left laying at the scene of the crime.

That kitchen window is a conventional aluminum, horizontal sliding window. The vinyl glazing bead which holds the glass in place is on the inside of the window. It is not possible for the glass to be removed from the outside without breaking the glass. It was never shown that the pane of glass actually came out of that window. The entire prosecution scenario of the crime is based upon a false hypothesis.

As Deputy Maricopa County Attorney, Paul Ahler, said in his closing remarks, "The fingerprints are the glue that holds this whole thing together."

James Harrod's fingerprints had been entered in the national fingerprint data base in 1987 when he became a licensed real estate agent. The police would have identified him eight years earlier if his prints had been found at the scene. All of this suggests the conclusion, that the fingerprint evidence may have been faked. The alleged fingerprint evidence was the only forensic evidence offered to connect James Harrod to the crime.

That prosecution theory of the crime raises many more questions than it answers. If Harrod had hired a professional hit man to perform the killing why would he break into the house himself? Why not leave the entire job up to the professional? If he was willing to break into the house himself, then why would he hire a professional killer? Why would he have carefully left his fingerprints on the window glass? Why not just smash the glass? Why did Harrod not wear gloves? What purpose could have been served by Harrod breaking into the house along with the professional killer? James Harrod did not have a prior record, he was not even alleged to have had any criminal connections or criminal background. This was a professional killing. James Harrod was an amateur.

No weapon was ever found. Harrod had owned a .22 pistol but ballistics tests showed it was not the murder weapon. No footprints matched Harrod's. His boots and shoes were tested but showed no evidence of ever having been in that terrain. There was no blood, hair or fiber evidence. There was no physical evidence of any nature to point to Harrod except for the alleged fingerprints. All of the theories of the crime presuppose a professional hit man hired by either Jeanne Tovrea's step-children, or her daughter, or her gangster associates through a middle man. The prosecutor charged and convicted James Harrod of murder for being the middle man, who then hired the hit man. No evidence was offered to prove who supposedly hired Harrod or who he supposedly hired to make the hit.

The defense counsel, with the approval of the prosecutor, brought in a highly regarded polygraph specialist from out of state to administer a lie detector test to Harrod. When Harrod passed the test, the specialist concluded that he had answered honestly. Harrod was shown to be truthful in denying any part in this crime. But that was no surprise. The prosecutors, Deputy County Attorneys, Paul Ahler and Bill Culbertson, knew that James Harrod was innocent of this crime. They had the confession of the man who did commit the crime and who exonerated Harrod.

That did not prevent them from prosecuting Harrod for murder and calling for the death penalty. Ahler's ostensible reason was to hold the pain of execution over Harrod's head, expecting that would bring him to confess, to name the person who hired him and to name the hit man who did the killing. The only problem with that is that he cannot confess to what he does not know. But that does not concern the Deputy County Attorney, Paul Ahler, or his superior, the Maricopa County Attorney, Richard Romley.

In Arizona, juries do not determine a death sentence . When the prosecuting attorney asks for the death penalty, the final decision remains with the judge. In most cases the judges readily confirm the prosecutor's call for death. In this case too, Judge Ronald Reinstein, supported the prosecutor and invoked a sentence of death on James Harrod. Judge Reinstein is a conservative, "law and order" judge but he is noted for being technically accurate in applying the law. He is seldom reversed. But he erred here.

The prosecutor argued that the death penalty was warranted because the crime was committed for pecuniary gain. But that allegation had not been proven. There was no evidence that proved Harrod had received financial remuneration for this murder. Had there been evidence to support the prosecutor's claim, that was a matter for the jury to decide, not the judge. Since even the prosecutor does not contend that Harrod fired the shots that killed the victim and since there was nothing especially heinous about the murder, the facts do not meet the statutory legal criteria for a death sentence.

Another major trial error was the judge's decision to prohibit the defense from entering any evidence about the confession by the actual killers. Surely the jury should have been permitted to weigh that exculpatory evidence among the other, more circumstantial evidence.

The man from Albuquerque who anonymously claimed to have recognized James Harrod's voice from a tape recording played on the "Unsolved Mysteries" program turned out to be Jeff Fauver, an old boyfriend and lover of Harrod's former wife, Anne. The "Unsolved Mysteries" program of April 1992 had played a tape recording supposedly taken from Jeanne Tovrea's telephone answering machine. However, there was no police chain of custody on that tape. It came from Jeanne's daughter, Deborah's husband, nineteen days after the murder. That taped message had been recorded three or more months earlier. The message on this answering machine recording was an innocuous, innocent message from a writer for Time/Life named, Gordon Phillips, about an appointment. It does not implicate the caller in the murder. Nothing was said in the entire trial about the supposed relevance of that message. The voice did sound like James Harrod's voice but no electronic voice analysis was made to prove the comparison. That would have been normal police investigative procedure for voice identification.

It was Anne's brother, Curt, who saw the original "Unsolved Mysteries" program, then recorded it from a rerun and later played the recording for his brother, Mark and then for Anne. For some unexplained reason Anne testified that it was her sister who first saw the program and recorded it. Everything Anne knew about the crime came from that tape of "Unsolved Mysteries." She admittedly watched it at least twelve times and studied it carefully before talking to the police. Then Anne and Jeff Fauver, together, conspired to accuse James Harrod of this crime.

Curt, Mark, and Anne all saw the tape, identified the voice as that of James Harrod but did not notify the police. It was many months after Jeff Fauver had viewed the tape with Anne, that he finally did contact the police. Fauver was at that time a criminal investigator for the Defense Department and a former FBI agent. He understood the importance of the voice identification yet he waited eighteen months or more before calling the police.

Anne's story is that her husband told her that he was being paid one hundred thousand dollars by Ed "Hap" Tovrea to kill Hap's step-mother, Jeanne. Anne claims that her husband told her at the time that it happened that he was hired to carry out this murder. The story Anne told in court, on the witness stand, was not true, but it is difficult to explain the animus that motivated Anne to tell this story about her former husband. She only came forward with that story in 1994, six years after the murder and after her lover, Jeff Fauver, had called the police to accuse her ex-husband.

Anne Costello and James Harrod had been married for nearly three years when Jeanne Tovrea was murdered. Nevertheless, she remained married, living with him, for nearly six years after the murder. She did not disclose to anyone that her husband was involved in a murder or that she was living in fear of her own life. That includes her own mother who lived with them for nearly a year during that time. Anne moved out of their house in October of 1993 and their divorce became final in February of 1994. That was only a few months before she went to the police with her story.

Anne had never been satisfied with her husband's income level. His real estate business income was irregular. Both Anne and her mother felt that Anne had married beneath her social status. Anne was a demanding and controlling person and James was not able to satisfy her. Anne had difficult emotional problems that they were unable to deal with. Her emotional problems were a serious strain on their marital relations. She also drank alcohol daily. She was a pot smoker and a cocaine user, although that was less frequent.

James had been told by his wife that her mother had asked her to covertly hide $30,000.00 dollars for her. Her mother was going through a divorce and had filed for bankruptcy at that time. James insisted that Anne should not be involved in helping her mother secrete money from her husband and from the bankruptcy court. He insisted that she take that money out of her bank account and return it to her mother. He also complained to Anne that her mother was interfering too much in their marital affairs. The relationship with Anne's mother had become a bitter bone of contention between them.

When she raised the subject of divorce, James readily agreed. He had also had enough of the marriage. That was the atmosphere in 1993 when Anne filed for divorce. Inexplicably, for a woman in fear of a murderous ex-husband, after the divorce, she maintained close contact and tried to persuade Harrod to reconcile. Harrod, however, scorned her overtures. She later said in court that her knowledge of James' part in the murder was a major factor in her wanting a divorce. But that explanation was not credible more than six years after the fact.

These marital problems may adequately explain the divorce. However, they do not rise to the level of explaining why Anne wanted to have her ex-husband convicted of murder. She may not have carefully considered that the conviction could lead to his execution. But that possibility had been well publicized in the newspapers. She had told friends before the trial that she expected that her credibility would be attacked on the witness stand and that James would be acquitted. Either she was truly unsure that her testimony would be believed or, if believed, would be enough to convict her ex-husband or she was being disingenuous.

James Harrod had been involved with Hap Tovrea in a legitimate business enterprise. He was acting as a broker, setting up a sulphur mining business for Hap. The mine operation they were trying to acquire was in China and negotiations were intricate. Harrod had traveled to China with Hap twice to work on the project. Hap had paid him thirteen thousand, three hundred dollars for that service, in several small payments over a four-month period in 1989. There was a record of those payments. The English-speaking contact in China testified at Harrod's trial, verifying the legitimacy of the business transaction. But the mine deal was never consummated. Negotiations were broken off as a result of the Tiannemen Square riot.

If Harrod had actually been promised one hundred thousand dollars for the murder, he would surely have collected more than thirteen thousand, three hundred dollars in the ensuing six years before he became a suspect.

The prosecutor said that Harrod had actually received thirty-three thousand dollars in payment for the murder. The only evidence he offered for that was thirty-three thousand dollars in money orders which Hap had purchased from his bank, made out to "cash." There was no evidence of who cashed those money orders or that James Harrod had received them as the prosecutor claimed. And Hap Tovrea was never charged with setting up the hit on his step-mother. There is no independent evidence from any source to support the story that Anne told in court. The entire prosecution case rested solely upon a bitter ex-wife's unsubstantiated story against her former husband.

The prosecution made a major point of exhibiting the telephone records showing the number of calls between Harrod and Hap Tovrea. Over a four year period there were about 1500 calls. The prosecutor believed that this was conclusive evidence of a conspiracy to commit murder. He argued that the mining business venture was a front to camouflage the murder intrigue rather than a legitimate enterprise. The rationality of this claim is elusive. Logically, the large number of calls would tend to verify the legitimacy of their business activities. Under most ordinary circumstances such a murder plot might more likely be conceived in one or two phone calls. More sophisticated plotters might even forgo using a telephone for their nefarious stratagem.

James Harrod does not have a verifiable alibi for the evening of the murder. He was away from home, shopping, between nine and ten o'clock that evening but was not with anyone who could verify his whereabouts. According to the police, Jeanne was shot between 8:00 PM and midnight. James Harrod had never met Jeanne Tovrea and had never been in her home. He had no connection with the crime. He knew nothing about her murder or about any involvement of Hap Tovrea or anyone else in that murder. He was convicted on the false testimony of his ex-wife, Anne Costello, by the malevolent efforts of the prosecutor, Paul Ahler, and by the incompetence of his defense attorneys.

The criminal justice system as practiced in Arizona has again failed to protect another innocent citizen from malicious prosecution. James Harrod is now on death row, awaiting execution for a crime he knows nothing about.

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