And Never See Her Again (16 page)

Haley pressed, asking if Holden was able to discern if Franks had been functioning on a fifth-grade level, or what level he may have been on during their discussions.

Holden responded by stating that he felt Franks had communicated very well. He admitted he hadn't considered Franks's educational achievement level when talking with him, but that each person he tested was evaluated on an individual basis.

"What I'm getting at is that, if you knew my client had had some special disability problems, you would have operated a little differently in administering that exam. Is that fair to say?" Haley asked.

"In a sense," Holden responded. "But it wouldn't affect how I administer the interview or the test. It would affect how I design the test questions, or if he wasn't capable of understanding, I would have terminated the test," Holden said.

"If someone brought a person into your office, let's say they were ten or twelve years old, you would have some concerns about giving them a polygraph exam, wouldn't you?" Haley inquired.

"Absolutely, but you still have to evaluate it, individual by individual. There is really no blanket that will cover that issue," Holden responded.

Haley questioned when and how Holden had concluded the interview.

"I had been instructed by the district attorney investigators that the moment he said, `I want to stop, I don't want to talk to you, I'm tired, or I want a lawyer,' I was to stop immediately. I was not to proceed further," Holden explained. "At the end of the interview, after the testing and evaluations were completed, I told him I thought there was more, that I thought he knew where Opal Jennings's body was, and that I thought he had caused her death. At that point he stood up and told me, `I don't want to talk anymore. I'm tired.' I said, `Then the interview is over.' I never began an interrogation on him."

The expert witness reiterated that he had asked Franks to write in his own words how he had been treated during the interview and to confirm that he had not been abused in any way.

On redirect Greg Miller had little to ask the polygraph examiner except, "Let me ask you, from a polygrapher's point of view, do you see a difference between giving a ten-, eleven-, twelve year-old juvenile a polygraph as opposed to an adult who may have a below-average IQ?"

"Sure. There's -a difference," Holden replied.

Miller nodded his head. Holden's statement had blocked any attempt by the defense to present their client as a childlike figure, rather than a grown man of low intelligence. Miller was pleased with Holden's testimony. He had presented to the court, not only Franks's ability to understand what was asked of him, but his deception regarding questioning concerning Opal Jennings's disappearance.

Eric Holden was excused from further questioning during the pretrial hearing. He surely would be called to testify during the trial, but at this point in time the defense was merely attempting to prove their client's statement should not be allowed into evidence when the trial began.

Danny McCormick was the next state's witness, called by ADA Robert Foran. McCormick walked to the stand stiffly, his shirt revealing a rigid back brace beneath. McCormick had experienced recent back surgery and apparently still suffered from the effects.

McCormick was asked many of the same questions his coinvestigator Kathy Manning had been asked. Foran concentrated on the arrest warrant, the Miranda warning, the statement Franks had signed, and the recanting of that statement.

Ed Jones cross-examined McCormick. He asked the investigator how many certified peace officers were present when Ricky Franks was arrested for the outstanding seat belt ticket.

"I believe there were seven," McCormick responded.

"Did you tell Mr. Franks that he was the focus of an investigation in the Opal Jennings disappearance?" Jones asked.

"I never told him he was the focus of the investigation," McCormick stated.

"He was just another person that you pulled off the side of the road for a ticket warrant with seven officers and [dragged] down to the Tarrant County District Attorney's Office and questioned; is that right?" Jones asked sarcastically.

"That's not correct," McCormick said.

Moving on to the Miranda warning, Jones asked, "Were you aware Ricky was a slow learner or of his mental retardation at that point?"

"Not that I recall, no, sir," McCormick responded.

"So when you administered these warnings, you administered them to a person that you believed was not slow or mentally retarded; is that correct?"Jones inquired.

"That's correct."

"Are you aware of what you are required to do before questioning a juvenile? Before taking them before a magistrate and ensuring their rights are read to them?"

Robert Foran stood behind the prosecution table and voiced his objection to the defense questions based on irrelevancy. After all, Ricky Franks was a thirty-year-old man, not a juvenile. His objection was overruled by Judge Gill and McCormick was allowed to answer the question.

'We're required to take them before a magistrate," McCormick said.

"Isn't it true it's because a person of tender years or tender mind may be intimidated by someone and, therefore, needs to have the warnings given to them by a neutral and detached magistrate?" Jones asked, attempting to make a case based on Franks's mental capabilities.

"Yes, sir."

"Did you ever tell the judge that Ricky had recanted his statement a number of times?"Jones asked.

"No," McCormick acknowledged.

When ADA Foran began to question McCormick on redirect, he asked if the investigator had told the judge the number of times Franks had also reaffirmed his statement was true and correct.

McCormick admitted he hadn't told the judge that Franks had recanted or reaffirmed his statement concerning Opal Jennings's disappearance.

"Let me ask you, at the conclusion of reading back his Miranda warnings and reading him back the statement in its entirety, did Ricky Franks want to sign that statement?" Foran asked.

"Yes, sir."

"Did he do so freely and voluntarily?"

"Yes, sir."

Foran passed the witness back to Ed Jones for further questioning.

'Would Mr. Franks have freely and voluntarily come by the Tarrant County District Attorney's Office and given those statements if it wasn't a direct result of the arrest and questioning regarding the disappearance of Opal Jennings?" Jones asked.

"I don't know," McCormick said, shaking his head. "Are you asking me if he would have voluntarily come up and told us about it? I don't think so. Probably not, no."

The state rested on the motion to suppress the statement given by Richard Franks to Eric Holden. It was the defense's turn to introduce witnesses in support of their motion. Their first two witnesses were called to shed doubt on the validity of the arrest warrant.

Janet Van Zandt reluctantly took the stand. Van Zandt was a clerk in the Municipal Court of the City of Fort Worth and didn't know until the morning of the hearing that she was going to be called to testify. She really didn't want to be involved in the case. She had been responsible for issuing the warrant for Richard Franks's failure to pay his seat belt ticket.

Van Zandt explained that when a ticket was issued, the person was given thirty days to go into the municipal court and pay the citation off. If the person failed to do so, Van Zandt would take the information provided by the officer who issued the ticket and write up a complaint. Franks had been issued the ticket for failure to wear a seat belt on April 8, 1999. On May 8, 1999, if he hadn't paid the traffic ticket or hadn't contested it in some legal fashion, then the arrest warrant would have been prepared. In Franks's case, that's just what was done. On May 8, 1999, a valid open warrant for Richard Franks had been issued.

Lisa Guerra, the second defense witness, confirmed that her coworker, Ms. Van Zandt, had prepared the arrest warrant in question. She admitted, as had Van Zandt, that the warrant hadn't been signed in her presence. But under-cross examination she swore that knowing Van Zandt well, she would never have signed a false arrest warrant.

The final defense witness was Daniel S. Lowrance. Lowrance, who held a Ph.D. in psychology, had been hired to conduct an IQ test on Richard Franks to help prove he was mentally deficient. Having performed more than ten thousand such tests, Lowrance was considered an expert in the field.

Lowrance had met with Richard Franks on March 19, 2000, and administered the Wechsler Adult Intelligence Scale (WAIS), the widely accepted test to measure intelligence.

"Could you briefly tell the court your findings regarding Mr. Franks in the IQ test that you have given him?" Ed Jones asked.

"His verbal IQ is sixty-five, his performance IQ is sixty-nine, and the full-scale IQ is sixty-four," Lowrance reported.

"So you classified, on the basis of this test, Mr. Franks in the mentally deficient range. Is that correct?" Jones asked.

"Mild mental deficiency, yes," Lowrance responded.

"At what age would his mental IQ level leave him equal to the functioning of his mind?" Jones asked.

"I think you are asking me his mental age. His mental age would be similar to, or on the average of that, a fourth-grade child, somewhere around ten. Maybe as high as eleven," Lowrance said.

Greg Miller rose to cross-examine the psychologist directly. He crossed the courtroom and asked if he could see Dr. Lowrance's file. Looking through his metal-framed glasses, Miller leafed through the doctor's notes. Miller was silent as he flipped the pages. He didn't buy into the doctor's theory that Ricky Franks was comparable to a ten- or eleven-year-old. Miller believed Franks knew what he was doing when he snatched Opal Jennings from her yard and was fully aware of what he was saying when he gave his statement to Eric Holden. Miller looked up and addressed the witness.

"I noticed in going through your file here, I don't see a copy of the statement which is the subject matter of this hearing," Miller said slyly.

"I object, Your Honor," Jones said loudly. "That goes outside the scope of this witness's knowledge. He was called simply to-"

"Overruled," Judge Gill said.

Jones, cut off by the judge before completing his objection, sat down.

"I'm going to show you what has been admitted as State's Exhibit six. Have you ever seen that document before?" Miller asked, handing the witness Ricky Franks's signed statement.

"No."

"I noticed there are not any police reports or prior offenses or statements or anything like that," Miller said, still flipping through the doctor's folder to make his point.

"I have no knowledge of any of that," Lowrance stated.

"You said his verbal IQ was sixty-five, correct?" Miller asked.

"If I could see my file, I'll be sure. Sounds right," Lowrance responded.

"Sure. Okay," Miller said, handing the folder back to the witness. "I'm not trying to trick you."

"I thought maybe it was a memory test," Lowrance said with a slight smile. "Here they are. Verbal IQ is sixty-five, performance is sixty-nine, and full scale is sixty-four. "

"Are you familiar with the phrase `adaptive behavior'?" Miller asked.

"`Adaptive behavior' is the person's mental capacity to adapt to the demands of their environment, social, functional daily skills, daily-life skills, things like that," Lowrance explained.

"How did you determine the mental age?" Miller inquired.

"IQ scores and the standard scores on the achievement testing," Lowrance said.

"Did you give him any tests to measure his adaptive behavior skills?" Miller asked.

"No, sir."

"Would you agree with me that the real-world experiences of a thirty-year-old male normally would be different, significantly different, than a ten- or elevenyear-old?" Miller pressed.

"Absolutely, yes."

After establishing that Dr. Lowrance had spent 51/2 hours with Franks during his testing, and that Franks had been quite talkative, Miller passed the witness, assured that he had made his point. Ricky Franks's IQ may have been tested at 65, but his adaptive behavior skills far surpassed his mental competence.

Leon Haley stood and announced that the defense rested. Miller offered no other evidence for the prosecution.

After taking the motion to suppress and the motion to withdraw from hearing the case, judge Robert Gill announced his decision. Both motions were denied. The criminal defense attorneys would have to find a way to disarm the effect of having Judge Gill preside over the trial and the impact their client's statements would have on the jury.

They wouldn't have long to find out. The trial would begin the next morning at nine o'clock.

On June 27, 2000, the Fort Worth courthouse was abuzz with activity. It was a typical hot Texas day. Men had their suit coats thrown over their shoulders and women dabbed their moist brows with tissues. Dozens of people had parked their cars at Fort Worth's only subway station and taken the short ride to the downtown outlet mall, crossed Houston Street, and made their way to the Tarrant County Justice Center.

A wave of citizens joined family members of Richard Franks and Opal Jennings to garner seats for one of the most publicized trials of the new century. News media, which had heralded reports of the kidnapping of Opal Jennings for fifteen months, selected their places on the courthouse steps to gain interviews from principal figures in the trial.

As Audrey and Robert Sanderford walked out of their front door on their way to the Tarrant County Justice Center, their eyes moved upward. A sign that had been affixed to the front of their home on March 26, marking the one-year anniversary of Opal's disappearance, hung overhead. The sign read OPAL'S PLACE, and featured a photo of Opal that had been seen on flyers, posters, and TV screens across the county. What Audrey called "hope chimes" had been attached to the sign. As they walked to their car, purple petunias Opal planted the year before had sprouted and served as a reminder of the cheer Opal had brought into their lives. Sorrow and dread filled Audrey's heart. She missed Opal terribly and now she would have to sit through the trial of the man accused of taking her away. It would be difficult for Audrey, who had been hospitalized for emotional breakdowns more than once during the past year. She was uncertain how seeing the man accused of taking Opal and hearing his excuses and denials would affect her.