A petition now before the Arkansas Supreme Court presents evidence that the DNA analysis that helped sentence a Little River County man to death was riddled with problems, including contamination. Moreover, the petition claims that state officials knew about the errors before Tim Howard's trial but withheld the information, in violation of state and federal laws.
Included in the petition are copies of handwritten notes made by the laboratory technician who ran the DNA tests and who testified at Howard's trial. The notes, printed on lab reports spanning three months in 1999, contain phrases such as: "cap had flipped open while spinning," "source of the problem," "gel did not run properly," "inadvertently erased," and "random, spurious contaminant."
Yet none of this emerged at Howard's trial. Instead, the technician who conducted the DNA analysis — and who wrote those notes — testified without hesitation that Howard's DNA "matched" evidence from the crime.
The case against Howard was circumstantial at best. The technician's testimony was the strongest evidence presented linking Howard to the murders of his two close friends and to the attempted murder of their child.
Howard was convicted of the 1998 murders. He has resided on Arkansas's Death Row ever since.
If he is innocent — and as far back as 2002, three members of the Arkansas Supreme Court worried that he may be — Howard would not be the first black man in Arkansas sentenced to die for a crime in which not only the victims, but all the other potential suspects, were white.
I first wrote about Howard nine years ago, a few months after the Arkansas Supreme Court split four-to-three over whether there was enough evidence even to convict Howard, let alone sentence him to death. The narrow majority ruled that there was.
W.H. "Dub" Arnold, the court's chief justice at the time, wrote the majority opinion. "The most incriminating evidence against Howard," he decided, "was his inappropriate and unexplainable behavior." Arnold retired the following year.
The three dissenting justices each wrote separate, strongly worded opinions expressing their concerns. Justice Jim Hannah, who is now the court's chief justice, complained that the majority's ruling "stretches and reaches to assert unsupported conclusions."
Associate Justice Robert L. Brown, who also remains on the court, wrote: "The critical question for this court to resolve is whether the evidence was sufficient to convict Howard. ... I do not believe it was."
A third dissenter, Ray Thornton, is no longer on the bench. But he too expressed concern that the evidence on which Howard was sentenced to die was "very thin."
Never before — or since — has the state's high court divided so sharply on a death penalty appeal. I have followed Howard's case closely since reporting that split, and in that time, I have gotten to know Howard.
I regard him as a decent man and consider him a friend. I expect that he will eventually be cleared of the murders for which he has spent more than a decade on Death Row.
I could be wrong, of course. Courts are unpredictable. And maybe Howard did kill his friends, Brian and Shannon Day, and all but kill their baby. He himself admits that, at the time, his life was "spinning out of control."
"Things were going downhill," he said in a recent interview. "I didn't know how to stop. I didn't even know I could stop." He admits: "I would eventually have ended up in prison at some point. Either that or dead."
But he says he did not kill his friends. And now, in addition to their earlier concerns, the justices on the state Supreme Court have the since-discovered lab notes to consider. The petition by Howard's federal public defenders claims:
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I didn't do it and it'll never happen again.