Howard prosecutor withheld evidence in Texas trial | Arkansas Blog

Monday, May 4, 2015

Howard prosecutor withheld evidence in Texas trial

Posted By on Mon, May 4, 2015 at 9:22 AM

click to enlarge Prosecuting Attorney Alwin A. Smith - BRIAN CHILSON
  • Brian Chilson
  • Prosecuting Attorney Alwin A. Smith

Ashdown—While claims of withheld evidence have dominated Tim Howard’s retrial, the Times has learned that similar claims from an earlier case in Texas helped shape the career of Alwin A. Smith, one of two prosecuting attorneys in the current trial. 

In 1989, Smith was the first assistant district attorney for Hopkins County, Texas. According to a 2012 article in the Texas Tribune, he prosecuted a Texas couple that year for the murder of their four-year-old daughter. The couple claimed that the girl was killed by a pack of dogs.

Smith convinced the jury that the couple had cut the child with a hunting knife and beat her with a curling iron. Both parents were sentenced to life in prison.

An attorney who later investigated the case discovered that 38 photos from the child’s autopsy had not been provided to the defense. Experts said the photos showed bruises in the shape of paw prints and dog hair on the body.

In 1993, after finding that Smith had improperly withheld the photos, the Texas Court of Criminal Appeals overturned the couple’s convictions.

According to Smith’s website, he took a job as an assistant United States attorney in 1993 for the eastern district of Texas, where he stayed for 11 years before moving to southwest Arkansas.

Human hairs have been at issue, both at Howard’s original trial in 1999 and at his current retrial.


On Friday, testimony focused heavily on “Negroid hairs” that technicians at the state crime lab collected from inside a work boot that the crime lab said had blood from one of the victims, Brian Day, on the outside.
Police testified earlier that, on the morning of the murders, a pair of boots was found about two miles from the murder site and alongside the road that led to it.

A state police investigator said he photographed each boot individually, and those photos were introduced at Howard’s first trial in 1999.

At that time, prosecutors suggested that Howard threw the boots from his car while fleeing the scene. While that explanation for how the boots got there has not been offered at this trial, a new piece of evidence has emerged.
A former deputy with the Little River County Sheriff’s office testified earlier in the week that, sometime after October 2013, when a new trial for Howard was ordered, he discovered that he had a videotape of the crime scene that included images of the boots where they were found.

That video was provided to the defense attorneys, who, until then, had no idea such a video existed.
It showed the boots standing upright, side-by-side, and about a foot apart in an open area that was clearly visible from the road.

Several analysts from the crime lab testified on Friday, particularly about the left boot, which was said to have contained several hairs, including three that were of “Negroid” origin.

The lab’s forensic DNA analyst said that the hairs did not contain nuclear DNA, so a definitive identification was impossible.

Other items from the murders were also examined, including the strap with which Shanon Day was strangled and the lamp cord tied around her baby’s neck.

“Did you find any DNA from Tim Howard on anything you looked at?” Kate Streett, one of the lawyers representing Howard asked.

“I could not identify his DNA,” the analyst replied.

Darby Neaves, the owner of a Texarkana barbecue restaurant, testified that “it was common knowledge” that Brian Day and Howard were “good friends.”

However, Neaves said, that three or four months before the murders, Brian became furious after hearing rumors that Shanon was having an affair with Howard.

Asked about the time after that, Neaves said he assumed Brian maintained his friendship with Howard, in part because he knew the two men were preparing to sell a load of stolen tires.

Asked whether he knew that Brian was dealing drugs, Neaves said, “Yes.” He also acknowledged that “a week or so before the murders,” Shanon had come to his house with a black eye she said Brian had given her.

Mike May, a carpenter and handyman who’d served time for selling drugs, said he’d been friends with Brian Day in the last months of his life. “We didn’t get out of trouble much,” he chuckled.

May said Brian Day bought his methamphetamine from a man named Kenny “Chicken” Fields — the nickname an apparent reference to his attendance at cock fights in Louisiana.

Patrick Benca, Howard’s attorney, questioned May extensively about dealers and the drugs scene around Little River County at the time of the Days’ murders.

In his opening statement, Benca told jurors that evidence would show the murders were related to debts Brian Day had racked up, either with local dealers or dealers from Oklahoma.

Chesshir has argued that the murders resulted from a “deteriorating relationship” between Brian Day and Howard. However, May testified that he knew nothing of that, but was aware of serious strains in the Days’ relationship with each other.

May said that once when he was at their home, Shanon Day got “a gallon of Hawaiian Punch” out of the refrigerator and knocked Brian to the floor with it when he came walking down the hall.

May said he and Brian then left the house to go road-running, and that when they returned Shanon, the baby, and the home’s furnishings were gone. “It looked like she hired a moving crew,” he said.

Today will mark the sixth day of the trial. Chesshir and Smith said they will call more witnesses.

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