Wednesday, October 23, 2013

Scrutiny planned for Death Row inmate's hearing

Posted By on Wed, Oct 23, 2013 at 1:13 PM

click to enlarge TIM HOWARD
  • TIM HOWARD
A criminal justice reform group, the Center for Prosecutor Integrity, says it will be monitoring the hearing next Monday in Little River County on allegations of prosecutorial misconduct in the 1999 murder case that sent Timothy Howard to Death Row in the slayings of Brian and Shannon Day.

The Arkansas Supreme Court ordered the hearing after finding merit in Howard's argument about problems with DNA analysis that had been concealed from the defense.

Mara Leveritt has written extensively about this case for the Times, including this cover story in 2011. The case made further news when Howard asked for representation by a private attorney, rather than public defender.

Mara plans to cover the hearing. Among other criminal justice issues she's advocated over the years is creating a permanent video record of suspect interviews and court proceedings. As we know now, the decision of a circuit judge to allow filming of the West Memphis Three murder trial provided valuable footage in the eventually successful fight to free the men convicted.

Leveritt had asked for permission to make a video record of Howard's hearing. His attorney, Patrick Benca, agreed. The prosecutor, Bryan Chesshir of Nashville objected. (Chessir was not the original prosecutor.)

The reform group's news release on the case follows:

The Center for Prosecutor Integrity, a national criminal justice reform organization, is announcing plans to monitor the October 28 Circuit Court hearing for death-row inmate Timothy Howard. Despite repeated claims of innocence, Howard was convicted in 1999 for the murders of Brian and Shannon Day.

In 2004, Howard petitioned the court to order release of the complete DNA report by the Virginia-based DNA laboratory, Bode Technology Group. The request was not approved until three years later. At that time, serious quality control problems with the DNA analysis came to light.

The lab technician had made notes that revealed serious problems in the testing procedure: "cap had flipped open while spinning," the "gel did not run properly," and data was "inadvertently erased." Re-testing disclosed the glitches were "most likely a result of random, spurious contaminant." The technician’s handwritten notes can be seen here, 

Prosecutor Tom Cooper did not disclose this information to the defense during the course of the 1999 trial, even though state ethics rules require the prosecution to release any evidence that might support a defendant’s claim of innocence.

In 2012, the Arkansas Supreme Court reviewed the hidden lab notes and ruled the claim of evidence concealment “appears to have merit.” The case was then remanded to the Circuit Court.

The Center for Prosecutor Integrity also notes a concern about judicial impartiality. The October 28 hearing will be held before David Yeargan, the same judge who officiated at Howard's original trial.

"CPI's interest in this case arises from the prosecutor’s failure to disclose potentially innocence-proving information,” notes CPI spokesperson Sheryle Hutter. “This represents a shameful ethical violation that warrants strong sanctions."

The Center for Prosecutor Integrity anticipates the Circuit Court will order a new trial for Timothy Howard.

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