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The contaminated case against Tim Howard 

'Assuming without conceding' that officials 'withheld' DNA evidence, the state attorney general presses for his execution.

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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:

"The prosecution never disclosed, and the jury never heard, that the DNA testing had been so sloppily done and so badly botched that it failed to prove anything at all. On the basis of this forensic facade, a jury convicted Mr. Howard of two counts of capital murder and sentenced him to death."

Lawyers for the Arkansas attorney general's office oppose a reexamination of Howard's case. They contend that the DNA information is being submitted to the Supreme Court too late and that, even if jurors had known it at Howard's trial, there is not a "reasonable probability" that their verdict would have been different.

Versions of the murders

On Saturday, Dec. 13, 1997, an anonymous caller notified the sheriff's office for Little River County that blood was seen dripping out of a U-Haul rental truck parked on property owned by a man who had lived with Howard's late mother. At 10:20 a.m., police drove to the scene, a farm near the tiny town of Ogden (pop. 126), in the far southwest corner of Arkansas.

After breaking the padlock on the truck's back doors, deputies found the body of Brian Day inside. He'd been beaten severely and shot in the head with a .38-caliber bullet. Howard's fingerprints were found on the truck.

Officers then drove to the Days' home in nearby Ashdown to inform Shannon Day of her husband's murder. There they found her dead as well, slumped in a bedroom closet. Trevor Day, the couple's seven-month-old son, was found in a zipped bag in another room. A cord was tied around the baby's neck, but he was alive.

Police noted bruises on Shannon Day's body that indicated "some sort of struggle." They also found "fingerprints on a Mountain Dew bottle in the living room that were identified as Howard's."

Shortly after police released news of the murders, a local man reported that he'd spotted a pair of boots earlier that morning in a clearing alongside a highway, about two miles from where Brian Day's body was found. The man said he had passed the spot at about 8:20 a.m., at which time the boots were not there.

Then, when he'd passed the same spot some 20 minutes later, he'd been startled to see the boots. He said they were standing upright and side-by-side, and that there were human footprints in the frost leading to nearby woods.

Four days later, police arrested Timothy Lamont Howard, a 28-year-old employee of a local tire company. Howard had no prior convictions. Police charged him with the Days' murders and with the attempted murder of Trevor Day.

But the investigation was not as neat as reports of Howard's arrest made it seem. And that was brought out even at Howard's trial. This is the background that was known back then, as his federal lawyers recently outlined it in their petition to the Supreme Court:

"The decedents in this case, Brian and Shannon Day, were Mr. Howard's best friends. Mr. Howard is black, and both the Days were white. All three were actively using and dealing in illegal drugs, principally methamphetamine, although Brian Day was substantially more involved than the other two. Brian Day slid deeply into debt with his suppliers.

"The Days were afraid of these suppliers, and in the week preceding their murders, witnesses saw violent and unpleasant individuals visiting and arguing with the Days over money. Additionally, Brian Day was arrested with another dealer, Mike May, by a drug task force just two weeks before the Days were killed.

"Rumors circulated that Brian avoided serving jail time on his recent arrest by becoming a 'snitch' and providing authorities with information about his suppliers and dealers. In fact, Shannon Day told a friend just days before the murders, that if anything happened to her and Brian, it would be Kenny 'Chicken' Fields — one of Brian's main meth suppliers — who was responsible."

For reasons that were never explained, neither the men seen arguing with the Days over money nor the drug dealer with whom he'd been arrested were treated as serious suspects. Instead, Howard, the Days' black friend, was quickly named their killer.

"Brian and me — we were like brothers. We were as tight as Dick's hatband," Howard says. "We never had a cross word to say."

Howard says he was so close to the family that, on the night Shannon Day went into labor, he went to the hospital with her. "Brian was out trying to secure some drugs," Howard says, "so I was there."

Theory of the case

Two years later, in December 1999, Howard was brought to trial. Tom Cooper, the prosecuting attorney, proposed that Howard had killed the Days and attempted to kill their child while in a meth-induced fury that involved stealing money from Brian and killing Shannon, who, Tim had heard, was pregnant with his baby.

Little of it made sense, especially since Howard had been found to be sterile years earlier, when he and his wife, Vickie, were trying to have children. No one testified that Howard was ever told that Shannon Day might be pregnant. Her autopsy report said she was not.

Mac Carter, Howard's attorney, tried to keep testimony about the alleged pregnancy out of the trial. However, Circuit Judge Charles A. Yeargan ruled that it could be admitted.

Howard was divorced by the time of the trial. When his ex-wife was called to the stand, she told the court that Howard had, in fact, been aware that Brian Day was going to meet with drug dealers on the morning Day was killed.

She testified that Howard had called her at around 11 that morning and said that, as he'd driven towards his farm, he'd seen police cars and an ambulance heading in the same direction. She said Howard told her he'd then turned around and driven to Texarkana, since it appeared that something had gone wrong with Brian's deal.

Cooper characterized the turn-around as Howard's "flight." Carter countered that, on the day after Brian Day's death, Howard had voluntarily returned to Ashdown and given statements to the police.

Cooper called a witness who testified that Howard was seen with a .38-caliber handgun the day before the murders. And he reminded jurors that Howard's fingerprints had been found on the truck and on the soft-drink bottle in the Days' home.

Carter, in turn, argued that it was well known that Howard had rented the U-Haul with Day and that he'd driven it. And, since Howard was a close friend of the Days, Carter said it was no surprise that his fingerprints would be found on a beverage inside the Days' house.

Ultimately, in a case that lacked a confession, an eyewitness and a murder weapon, the pair of brown work boots spotted alongside the road became the most substantial evidence at Howard's trial. Vickie Howard testified that she had given a pair like that to her husband.

Although the boots were found two and a half miles from where Brian Day's body was discovered, analysis showed that one of them bore specks of Day's blood. Hairs found inside the boots were sent to Bode Technology Group, a laboratory in Virginia, for DNA analysis, along with a sample of Howard's DNA.

As Charity Diefenbach, the technician from Bode who conducted the tests, was completing her testimony, Cooper asked her: "Just for point of clarification: 99.8 percent of the people would be excluded from this sequence that were in these hairs, but the defendant's blood DNA was included and is a match?" Diefenbach replied: "That's correct."

In Cooper's closing argument to the jury, he recalled the DNA testimony, stressing for the jurors that, because of it, the "importance of those boots becomes monumental." The jury found Howard guilty and sentenced him to death for each of the Day's murders, and to an additional 30 years in prison for the attempted murder of their child.

Hannah's dissent

In 2002, when the Arkansas Supreme Court narrowly affirmed Howard's conviction, the most scathing and, at 22 pages, most lengthy dissent was written by Jim Hannah, then an associate justice. While Hannah acknowledged that it was reasonable to have considered Howard a suspect, he pointed to evidence that "tended to incriminate others."

"Evidence was presented that Brian was deeply in debt," Hannah wrote, "that he and his wife feared for their lives, that he had set up a drug deal that took place about the time of the murders at the place where his body was found, that a substantial sum of money was involved, that he was to receive something that required a truck to haul, and that in the days before his murder he had been in confrontation with unidentified persons who were apparently the persons he met the night of his murder."

Hannah noted that "there is probably not a more common caliber than .38," and that, while Cooper had portrayed Howard as having spent large sums of cash after the murders, the actual amount, according to testimony, had been "a few hundred dollars."

Citing the testimony of witnesses who reported that Shannon Day had said "she did not know what Brian was doing with the money but they were going to kill him," and that Shannon feared for her family because "Brian owed everybody money," Hannah saw abundant fear — but nothing that pointed to Howard.

"What the record does reveal," he wrote, "is that Brian owed other people money, and that people were mad. He was trying to gather up cash from his users or from anywhere he could get it."

He continued: "There is abundant evidence that all of these people were nervous about something that has never been revealed. The evidence does put someone at the Howard farm with Brian the night he was killed. It does not put Howard there."

And: "The persons with whom Brian met on the night of the murders had a great deal more to gain" than Howard from the murders of Brian and Shannon Day and the attempted murder of their child by making them "an example of what happens when a person does not meet his obligations."

No part of the trial, however, seemed to disturb Justice Hannah as much as the unfounded intimation that Howard had gotten Shannon Day pregnant. When Howard's attorney had objected to the introduction of that "evidence," he had been overruled by Judge Yeargan.

Hannah believed Yeargan's ruling on that point was wrong and that, because the pregnancy claim was allowed: "An African-American was tried for the capital murder of a white woman. Then ... the jury is told that he might have gotten her pregnant as well. The obvious potential prejudice is so apparent it needs no discussion ..."

Cooper is now a circuit judge. Attempts to reach him for this article failed.

The legal meander

In 2003, shortly after the Arkansas Supreme Court affirmed Howard's conviction, his lawyers filed a Rule 37 petition in Little River Circuit Court, claiming inadequacies at his trial. That was an appeal for a new trial. The circuit court denied it.

With his case then seemingly headed towards an appeal in federal court, Howard was appointed a federal public defender, who had his case reinvestigated. That's when the notes concerning problems with the DNA analysis were discovered. At that point, Howard's federal attorneys began working to bring those notes before a new jury.

In the past three years, Howard's case has bounced from a habeas petition in federal court (ordered back to state court in 2007), to a request for another Rule 37 hearing in Ashdown (dismissed in 2009), to a request that the Arkansas Supreme Court order a new Rule 37 hearing (denied in 2010, with two justices dissenting), and now to the current petition before the Arkansas Supreme Court, which seeks an evidentiary hearing that could lead to a new and "fair trial" in Little River County.

Last October, shortly after the filing of Howard's most recent petition with the state Supreme Court, David R. Raupp of the Arkansas attorney general's office, filed the state's response. It stated that, "Assuming without conceding that [Howard] is correct" on his "withheld-evidence claims," the high court should deny him a new trial because "he has not been diligent in bringing his request and his claims are not meritorious."

Essentially, the diligence argument is over all the back-and-forth that has occurred as Howard's lawyers have tried to find a venue that would accept the new DNA information. In 2007, U.S. District Judge Brian Miller ruled that Howard needed first to give state courts a chance to address the issue.

The petition now before the Supreme Court marks Howard's fourth attempt to do that. Raupp argues that, "The [Supreme Court] should not indulge Howard's piecemeal efforts to return to circuit court to relitigate his guilt and death sentences because such efforts serve only delay."

Raupp also told the court that Howard's petition was not "meritorious," because he had failed to "demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial."

According to Raupp's response, Howard "overlooks a significant circumstantial link of him to the crime." In outlining that link, Raupp cited:

• Brian Day's blood on boots that Vickie Howard said "were the same type and size she had bought" for Howard";

• Howard's "fingerprints on the U-Haul truck containing the victim's body";

• "testimony that he drove that truck and possessed the same caliber handgun as a murder weapon the day before";

• "his flight after learning the victims had been discovered";

• "his proximity to the crime scenes,"

• "his suspicious behavior"

• and "spending large amounts of cash."

The Supreme Court may hand down its decision soon. In the meantime, Howard acknowledges that, "prison is probably one of the best things that ever happened" to him. "It gave me a chance to slow my life down and learn about myself and other people.

"I've learned a lot since I've been locked up, and I still have a lot more stuff to learn." But he adds, "Prison is a terrible place, and being on Death Row is even worse."

He finds the process of knocking on courthouse doors to get him back before a court in Little River County "extremely frustrating and ridiculous."

"Why?" he asks rhetorically of the Supreme Court. "If they made a mistake, you fix it. Don't send me back to the same court that did this to me in the first place."

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