THE DAILY OKLAHOMAN
Tuesday, August 16, 1983
Prosecution Ends With Witnesses Putting Draper, Fitzgibbon at Fraud Scene
By Joyce Peterson
MUSKOGEE – House Majority Floor Leader Joe Fitzgibbon was in the same room when a rural school superintendent refused to have a set of absentee ballots illegally notarized, the educator testified here Monday.
Another witness also said Fitzgibbon drove a Sallisaw man to a polling place in Adair County last fall where the man was illegally registered to vote. The voter, a former prosecutor and convicted racketeer Frank Grayson, said Fitzgibbon had done so as a personal favor.
The testimony cane as the prosecution wrapped up its case against the Miami representative and House Speaker Dan Draper, D-Stillwater.
The two are accused of conspiring with an eastern Oklahoma family to use fraudulently notarized and voted absentee ballots to swing a House race runoff in favor of Draper’s father, Daniel Draper II.
Before they wrapped up their side, however, the prosecution also presented the fourth and fifth witnesses who placed Draper at a rural grocery store the night about 30 absentee ballots were fraudulently notarized.
One witness, Ruth Ann Hembree, who runs the store, said she overheard a conversation in which Draper was told to be careful when mailing the ballots so they wouldn’t be challenged.
Fitzgibbon and Draper’s attorneys will begin presenting their side of the case today.
Don Patrick, superintendent of the Cave Springs School, south of Stilwell, said Fitzgibbon and Barney Girdner Jr. came to his office a few days before the primary.
Girdner was another unsuccessful candidate in the race and one of the people with whom Draper and Fitzgibbon are accused of conspiring.
Patrick said Fitzgibbon, who was the first to speak, asked him if he had a notary at the school.
When Patrick said there was, Fitzgibbon said “something about notarizing ballots or notarized ballots.”
Patrick said he didn’t hear exactly what he said because an air conditioning duct was making too much noise.
“I asked Barney how many do you have and I believe he said “is a few too many?” Patrick testified. “I believe I told Barney “The school couldn’t stand the scandal.”
Any absentee ballots must be accompanied by a signed and notarized affidavit. To be legal the affidavit must be notarized in the presence of the person who signed the affidavit and voted the ballot.
Another witness, L.J. Ketcher, president of the Cave Springs School board, later took the stand to say that Fitzgibbon and Girdner drove to his house and asked him to get into the car.
Girdner asked Ketcher, who is married to Girdner’s cousin, if he could get the ballots notarized and Ketcher agreed, he testified.
Fitzgibbon, who was driving, did not say anything, he said. The three drove to the school and Ketcher went inside with Fitzgibbon while Girdner stayed outside.
“Did he tell you what his purpose was in going inside the building?” defense attorney Gene Stipe asked.
“He told me he wanted to go into the restroom.” Ketcher said. Fitzgibbon went into the restroom and Ketcher went into the secretary’s office where he asked her to notarized about 15 ballots.
“The next time I saw him (Fitzgibbon) he was outside talking to Barney,” Ketcher said.
Earlier T. Frank Grayson, a former Ottawa County District Attorney, testified that Girdner and Draper drove him to Bunch to vote on the day of the runoff.
Grayson was convicted in 1972 for gambling and prostitution racketeering. He lives in Tulsa, but last fall was living in Sallisaw.
He illegally registered to vote in Bunch in southern Adair County because he was planning on moving there in a few months, he said.
A few days before the election Fitzgibbon, who is a longtime friend of Grayson’s and Girdner came by his home for a social visit.
“I asked them if they were going up there, if they would come by and pick me up because I wanted to go vote,” Grayson testified.
Grayson, who was disbarred after his conviction, said he asked Fitzgibbon at the time to help him get a job.
“I told Joe I was in desperate need of employment. A business I was in failed and we were living solely on my wife’s income. Joe said he would help me all he could,” Grayson said.
Grayson said he had no with Draper during the campaign.
Mrs. Hembree, who is Barney Girdner’s sister, and Dora “Dode” Girdner, his mother, corroborated the earlier testimony of Barney and his son, John.
All four said Draper was at the store the night the family and notary Faye Newton were “processing” ballots.
Mrs. Hembree said by processing she meant they were marking them, notarizing them, addressing envelopes to the election board and “doing whatever was necessary to get them to the board.”
None of the voters in whose names the ballots were issued were present, which made them illegal ballots.
Mrs. Girdner said she was never in the back room so she could not say whether Draper saw the processing of the ballots.
Mrs. Hembree, however, said Draper came back “two or three, or three or four times. I couldn’t say.”
He shook hands with everybody once and the other times just ‘stood and visited.”
The ballots were open on the table and the family continued processing while he was there, she said.
“Was there anything that would have kept anyone from seeing what was going on in that back room,” asked the prosecutor.
“No sir,” she said.
Just as the group was leaving the store, Mrs. Hembree said she walked out the door and overheard a conversation between Barney Girdner and Draper.
Girdner told Draper that he should wait until a few days later to mail the ballots so they would arrive the day before or day of the election, she said.
The reason for that was to keep the ballots from being challenged, she said.
Girdner also told Draper that he knew of at least three ballot boxes in southern Adair County that his father would carry.
Draper had just promised to send Girdner for the campaign.
“I said no way are you going to carry those boxes, you better put your money where it’ll do some good, “ Mrs. Hembree said she told Draper.
After the prosecution finished its case, Stipe, who is Fitzgibbon’s attorney and Bruce Green, who is Draper’s, asked U.S. Judge Frank Seay to rule that the prosecution had not proven its case.
Such a request, which is called a directed verdict, is common in any criminal trial.
Seay took the motions under advisement, which is also common.
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