Cal Harris: The burden of proof

In one version of the story, a murderer is currently free after twice being convicted by a jury.

In the other, an innocent man has been incarcerated more than four years for a crime he did not commit.

The truth behind the 2001 disappearance of Michele Harris — a 35-year-old mother of four living with her estranged husband, Cal Harris — may never be known.

But what is clear is that the tragedy has been followed by a second.

Now, 13 years later, Cal Harris is scheduled to be tried a third time starting Jan. 21.

The case has divided observers at nearly every level, from friends and family of the Harrises to typical Southern Tier residents to judges on the state's highest courts.

Steeped in drama and coinciding with a national tragedy, the case seems ripped from the pages of a Hollywood screenplay.

But for dozens of people who have endured its twists and turns — especially the families of Cal Harris and Michele Harris — it has been painfully real.

"It's just so hard, and it's just so wrong," said Gary Taylor, Michele Harris' father, struggling to find words to describe his frustration with the legal system. "I'm just so bitter."

With the trial approaching, Cal Harris, along with Michele Harris' family and others, discussed their experience with the trials in recent interviews for this report.

Cal Harris' attorney, Bruce Barket, said the family would participate in an interview on the condition that neither he nor his children would answer any questions related to the trial or the facts of the case.

On May 21, 2007 — nearly six years after the wife of Owego businessman Cal Harris disappeared, following thousands of hours of investigation by police — then-Tioga County District Attorney Gerald Keene approached a jury assembled at Tioga County's modest courthouse.

His prosecution of Cal Harris began with four words: "Michele Harris is dead."

But in the nearly six years between Michele Harris' disappearance and the start of the trial, the most basic facts of the case have been subject to dispute.

Cal Harris was first indicted by a Tioga County grand jury on Sept. 30, 2005, but that indictment was thrown out by Broome County Judge Martin E. Smith because of problems with the way Keene had presented the case to the grand jury.

Harris was re-indicted on Feb. 26, 2007, and the case went to trial that May.

At the trial, Keene's case hinged on circumstantial evidence, including blood spatter stains in the kitchen and garage area of the Harris home in the Town of Spencer.

Keene argued that Harris was the only logical suspect in the case, and had committed the murder as a final act of control amid a bitter divorce proceeding.

The trial also was punctuated with dramatic testimony from a variety of witnesses about Cal Harris' alleged behavior. During a July 2001 appointment, Binghamton hairdresser Jerome Wilczynski testified, Michele Harris took a call from her husband and tipped the phone so the hairdresser could listen.

"Drop the divorce proceedings," the voice on the phone said, according to Wilczynski'stesimony. "I will (expletive) kill you, Michele. Do you hear me? I will (expletive) kill you. I can make you disappear."

Keene called more than 50 witnesses over the course of nine days during the trial. Defense attorney Joseph Cawley called just two: a blood expert, and a friend of Cal Harris.

Those who were in the Tioga County Courthouse on June 8, 2007, say they still remember Cal Harris' cries — "Oh God. Oh God. No." — when the jury foreman read the verdict convicting him of murdering his estranged wife. It lasted minutes.

Harris, in the recent interview, said he was "in shock" after the verdict was read.

"My first thought was, 'I'm not going home tonight. I'm not going to see my kids,'" he said. "I was just numb, and I don't remember a whole lot after that. I don't remember leaving the courtroom, I don't remember going downstairs, I don't remember going to the jail. It was all just a blur."

For Michele Harris' family, justice had been served. For Cal Harris, it was the moment he transitioned from prominent businessman to convict.

"I just remember sleeping all day just to block it out," he said of his six-month incarceration. "That was my release. I would just sleep and close my eyes and try to block it out. It was horrible, horrible."

Under circumstances few could have foreseen, the first verdict would only mark the beginning of a legal ordeal unlike any New York has ever known.

The day after Harris was convicted of murdering his wife, Candor farmer Kevin Tubbs pulled a day-old newspaper off the dashboard of his pickup truck.

The front-page news said Michele Harris was last seen Sept. 11, 2001.

But he remembered a woman matching Michele Harris' description arguing with another man in the Harris driveway the day after the 9/11 attacks.

He made a call to Cawley. A months-long series of legal hearings followed, focusing on whether Tubbs' testimony was sufficient to overturn thousands of hours of police investigation.

"It was just torture, because I didn't know what was going to happen. I didn't know what the judge was going to do," Harris said.

On Nov. 2, 2007, Harris was set free by Judge Martin E. Smith on $500,000 bail.

"I'll never forget: I'm sitting there, and I'm stressed out, I don't know what's going to happen, and Judge Smith looks down and he says, 'I'm going to order a new trial, and I want you to unhandcuff him,'" Harris said, taking an eight-second pause during the recent interview to gather his emotions.

Harris was taken back to the jail in a Tioga County Sheriff's Office vehicle to get his civilian clothes back, and then released to the jail's parking lot, where his brother, John, was there to pick him up.

Harris was a free man again — almost.

Although Tubbs' last-minute testimony led Smith to throw out the conviction, Harris' indictment stood — as did the specter of a second trial.

On July 13, 2009, the second murder trial began.

Retired park rangers, a food deliveryman and a number of Michele Harris' boyfriends had to endure the stress — and, at times, humiliation — of telling the story of her disappearance once again.

"I felt pretty good about it the second time with Kevin Tubbs' testimony," Cal Harris said. "I guess I didn't realize how much effort was put in by the district attorney and the state police to trash Kevin Tubbs."

Harris gave 1½ days of dramatic testimony during the second trial — something he did not offer to the jury in the first one.

Taylor, Michele Harris' father, said he could barely endure seeing Cal Harris on the witness stand.

"He sits there, and he sits there through the whole trial and takes in everything that everybody says, and then his lawyer puts him on the stand, and then, 'Everyone was lying, but I'm the only one that's telling the truth,'" Taylor recalled. "It's just so, I don't even know what the word (is) … depressing."

But the jury did not believe Harris' version of the story.

On Oct. 5, 2009, Harris was sentenced to 25 years to life following his second conviction for killing his wife.

Harris thought he might never see his children outside of prison walls again.

Michele Harris' family thought a pair of injustices had been righted.

Both were wrong.

Harris said he was "a little better prepared" for his incarceration the second time around.

"Kind of the same feelings. I was numb. The first thought through my head was I'm not going home, I'm not going to see the kids," he said. "And actually, after that, once I was taken out of the courtroom, it was worse because I knew what was coming."

Barket, Harris' attorney, who was present during the interview in July, cut off a line of questions about Harris' time in prison.

"You can ask him anything you want, but my view is we've talked enough about him being in jail," he said. "It's not where I want to go with this."

The watershed moment in the legal proceedings came nearly two years into Harris' approximate 3 1/2-year incarceration at the Auburn Correctional Facility in Cayuga County.

On July 28, 2011, a midlevel appeals court — the Third Judicial Department of the state Supreme Court's Appellate Division — handed down an order on Harris' appeal of his conviction.

Harris said he remembers the call with then-defense attorney William Easton the day of the order.

"And he said that they turned me down. And I was devastated," Harris said. "That's all I heard. He did say something about the dissent, but at that point when he told me that I was turned down, I didn't care … I think I spent the next two, three days in my cell. I never left my cell."

Three of the four judges involved in the ruling affirmed Harris' conviction in a 16-page decision.

But attached was a blistering 27-page dissenting opinion from Judge Bernard J. Malone, who argued that at the trial, the burden of proof had been shifted from the prosecution to the defense.

Saying the evidence was insufficient to convict Harris, Malone argued the indictment should have been reversed and dismissed.

He also cited "many pretrial and trial errors" by the court and prosecutors that he said deprived Harris of a fair trial, and said a new one should be held.

"Although it is a fundamental tenet of our jurisprudence that all defendants are presumed innocent until proven guilty," Malone wrote, "after reviewing the entirety of the record in this case, it seems that, from September 12, 2001 forward, (Harris) was presumed guilty by police, the District Attorney, and Harris's family and friends, and that, at trial, the burden of proof was shifted to (Harris) to prove his innocence."

The dissent would alter the course of the case.

Because of Malone's opposition, the state's highest court — the Court of Appeals — agreed to hear the case. The high court takes only about 1 percent of cases that do not have a dissent from the midlevel appeals court, and without it, Harris would have been without legal recourse.

About a year later, on Oct. 18, 2012, the state Court of Appeals ordered a third trial for Harris on the basis of two errors in the second trial.

One error, the court said, was allowing a prospective juror to join the jury pool even though he or she expressed a preconceived notion about the case. The other was allowing testimony from Cal Harris' sister-in-law on second-hand knowledge about a conversation, without warning the jury to treat that portion of the testimony as hearsay.

The decision was not unanimous. Six judges sitting on the Court of Appeals wanted a new trial, and a seventh — Judge Susan P. Read — agreed with Malone and said Harris' indictment should have been dismissed because the evidence was insufficient to convict him.

Harris said he remembers where he was when he heard the state's highest court decided to set him — for the time being — free.

The news came from a fellow inmate, whose girlfriend had visited the prison earlier in the day.

"She was visiting him that day, and so she told him, and then he came out in the yard and told me," Harris recalled. "And I remember, he and I just stood there. I was crying. He was hugging me, and I was hugging him. And, you know, we didn't care. We were in the middle of the yard with 300 other guys out there."

Harris said he was freed about a week later, following a dangerous waiting period.

"If the wrong guy knows that you're leaving, you're going home, for whatever reason, and he's in there for life and he's not going home, they'll cut you," he said.

On Oct. 25, 2012, Judge James T. Hayden ordered Harris freed on the same $500,000 property bond he posted in 2007.

The day after he returned home, he and his children attended a local football game.

His children, who were in the joint custody of Harris' aunt and uncle during his imprisonment, said they were glad to have their father home.

"It was actually a really good time. It was definitely a really big high for me," said Harris' son, Tanner, now 14.

"It was exciting," said Cayla Harris, 18. "He came home during my junior year, and what I was really worried about (was) him not being home for my senior year and not being home for graduation and my lacrosse games and things like that. So it was really exciting to get to have him back and there for those kinds of things."

Harris said he saw only blacktop and concrete during his time at Auburn Correctional Facility, and remembers being among trees and grass for the first time when he was released.

"I just remember telling people that would come visit me that I haven't touched a tree, I haven't touched grass in over 3½ years. So when I got home, I don't remember exactly, at some point I remember rolling around in grass in the font yard. And then I walked up to a tree. I was hugging a tree or something"

For Michele Harris' family and friends, though, the experience could not have been more different.

"If you've got enough money, you can get away with murder," Taylor said. "And I'm sure he's going to do it this time."

Tioga County District Attorney Kirk Martin declined to comment on the case for this report because of the upcoming trial.

"I look forward to presenting my evidence to a jury," he said in a statement. "Beyond that, as an attorney involved in this pending matter, it would be inappropriate under the Rules of Professional Conduct for me to make a statement."

At a news conference this past March in Owego, defense attorney Barket announced a tip line was being established in an effort to investigate what happened to Michele Harris.

"He's literally spending his last dollars to try to figure out what actually happened to Michele Harris," Barket said of his client.

Harris' net worth was valued at $5.4 million during divorce proceedings in 2001. His worth at the moment is unknown.

Asked about his employment during the recent interview, Barket again interjected before Harris answered. "He's full-time engaged in defending himself," Barket said.

Harris said he has not yet turned his attention to what he might do after the trial, if he is declared not guilty.

"It's kind of hard to plan for that," he said. "I certainly have my dreams. … We feel really good about what the outcome's going to be, but we don't want to get too far ahead of ourselves. We want to take it one step at a time."

If he is convicted, Harris said, the family has a contingency plan in which Cayla would remain local during her first years of college to help take care of her siblings.

Although the case has led to his vilification among many members of the community where he lived and worked for decades as a car dealership owner, Harris said he still has had many supporters.

During both trials, he said, he would leave the courthouse and go to the Boys Club, where he would coach sports for his children. He said he was gratified that other parents allowed him around their children while he was being prosecuted for murder.

"I had a core group of people that knew me and supported me," he said. "Unfortunately, there's 50,000 people in Tioga County, and I'm only around a few hundred of them. … The picture has been painted of me as this monster, and I just can't overcome those numbers."

Partly due to the extensive media coverage of the case, which has included several nationally televised true-crime programs, the venue for the third trial was moved from Tioga County to Schoharie County in an order last month.

Harris said he is hopeful for a different outcome, given his new defense team —the third in three trials — but reserved harsh words for the criminal justice system.

"As it gets closer and closer, then the reality starts to set in, so I start thinking about it more … Having to go through the whole process, having to go to the court, knowing how that's going to work, knowing that the media is going to be there, and with the frenzy that's going to take place, I'm not looking forward to that at all," he said. "As far as how I feel about the trial, I feel much better this time around with the work that Bruce (Barket) and his team have done.

"It's just frustrating that nobody — nobody — should be put through what my family and I have been put through, the way we've been treated … the twists and turns it's taken," he added.

Whatever the outcome of the third trial, it seems, some wounds will not be healed.

A number of Michele Harris' family members and closest friends did not return requests to comment for this report. Those who did could only manage a few words.

With no body and no weapon, the burden of proof in the Cal Harris trials has been borne not only by the criminal justice system, but by everyone the case has touched.

"It's a sad situation," said Cindy Turner, a longtime friend of Michele Harris. "Very sad."