The Most Surreal Murder Trial in America

ASHDOWN, Ark. — How many stabs should a state get at trying a defendant? How much evidence can it fail to provide the defense and still call it a trial fair?

In Little River County, Arkansas, on the state’s border with Texas, Tim Howard is about to find out. He is being tried a second time for the murders of his best friends 18 years ago. In the first trial, prosecutors withheld key evidence that could have set him free. And now, with the same judge as before, it appears evidence has gone missing again.

Judge Charles Yeargan, who convicted Howard in 1999, only to overturn that conviction in 2013, is beyond exasperated.

“It’s frustrating for me to sit here and listen to all this,” he told the prosecutor in court last week, after hearing how much evidence is missing. “As you know, this court took a giant leap to order this new trial.

“We all agreed that there would be full and complete discovery. Now we’ve got all these holes that you’ve come up here with. It’s very frustrating—I swear— it’s frustrating to this court.”

Howard, who’d sat quietly at the hearing, spoke up at that point. “It frustrating to me!” he said.

The judge admonished him to be quiet, but I was glad he said what he did. He’s been jailed for almost 18 years, 14 of them in isolation on Arkansas’s death row.

I have known Howard for 12 of those years and believe he is innocent. In fact, in ways I find Howard’s case more troubling than that other infamous Arkansas case I’ve written about, the one whose defendants became known as the West Memphis Three.

Howard’s attorneys recently raised the claim that he is being exposed to double jeopardy—a violation of his Fifth Amendment rights—because, from the time of Howard’s arrest until now, state officials have not provided his defense attorneys with evidence as required by law.

Yeargan didn’t address the double-jeopardy argument. He said jurors could weigh the importance of the missing evidence at Howard’s new trial the last week of April.

Howard, who is black, was 30 in 1999 when he was convicted and sentenced to death in the murder of Brian and Shannon Day, his two best friends, who were white. All three were doing drugs.

Witnesses at Howard’s first trial said Brian had been dealing and that Shannon was worried shortly before the murders because Brian owed his dealers a large sum of money.

Brian Day was found beaten and shot to death inside a U-Haul truck on a farm owned by one of Howard’s relatives. When police went to notify Shannon, they found her body inside a closet in the couple’s home. A pane of glass was on top of her, but the fingerprints on it aren’t Howard’s and they’ve never been identified.

Prosecuting Attorney Tom Cooper presented the state’s case against Howard. It revolved around various theories, including the claim that Shannon had gotten pregnant by Howard and that Howard had murdered the couple to keep that from being known.

This motive was presented to the jury even though Shannon Day’s autopsy report had noted that she was not pregnant. When Howard’s attorney objected to discussion of the alleged pregnancy, he’d been overruled by the judge.

However, Cooper said the most “monumental” evidence linking Howard to the murders was DNA found in a pair of work boots near where Brian Day’s body was discovered. Cooper’s case was circumstantial but convincing enough that the jury found Howard guilty and sentenced him to death.

But in 2002, when Howard’s direct appeal went to the state supreme court, three justices took a more skeptical view. One called the evidence against Howard “thin.” Another found the evidence insufficient to support a conviction, let alone a sentence to death.

The third wrote vehemently about the testimony that Shannon was pregnant: “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...”

But the court’s four-member majority affirmed Howard’s conviction.

That split on sufficiency of the evidence was enough to attract my attention. A divide that strong is rare for any appeal; in a death case, it was extraordinary.

But more doubt was yet to come. Because of Howard’s death sentence, federal public defenders were assigned to continue work on his case.

Years after the divided supreme court opinion, investigators for public defenders learned that Cooper, the prosecutor, had improperly withheld a key piece of evidence relating to the DNA in the boots.

The discovery was that the lab technician who’d tested the sample made notes in which she described mishaps and possible contamination that had occurred while she was conducting her tests.

Cooper had never revealed the notes’ existence, and that had left Howard’s attorneys unable to challenge the prosecutor’s assertion that the DNA results were of “monumental” importance.

After rounds of litigation, during which state officials continued to resist releasing the contentious notes, they were ordered to surrender the evidence and Howard’s case went back to Yeargan for review.

While that was going on, I was reporting on the dramatic events unfolding in the case of the West Memphis Three. The state Supreme Court had also sent their case back to the lower court for review due to errors that occurred in their trials.

It looked like a new trial might be in the works for them when, suddenly and to widespread amazement, the three appeared in court to enter Alford pleas, agreements by which they admitted guilt while stating that they were innocent. The prosecutor announced that he would not retry them and they walked out of court free men.

A few months after that stunning release, I suggested that Howard contact Patrick Benca, one of the attorneys who had helped negotiate it. Howard did, the two met, and in 2012, Benca took over Howard’s defense, agreeing to work pro bono.

Benca’s first order of business was to get Howard’s conviction overturned.

That happened in 2013, when Yeargan concluded that Cooper had indeed withheld important evidence, a form of prosecutor misconduct known as a Brady violation.

With that ruling, Howard regained the status of an innocent man, one never convicted of a crime. But here there would be no Alford plea. Howard, who has always maintained his innocence, refused to plead guilty.

With the stage set for a new trial, Benca asked Bryan Chesshir to provide all evidence in the state’s possession relating to the crime.

That effort has not gone well.

At a pretrial hearing last week, Benca argued—and Chesshir agreed—that at least a half-dozen pieces of evidence that are believed to exist have not been provided to the defense.

“It’s been a long time,” Chesshir told the judge. “There are some things we cannot find.”

Items not provided include:

• An interview of a witness recorded by the sheriff and a state police investigator shortly after the murders;

• Notes from an interview that another witness claims the sheriff conducted with him;

• A report by a state wildlife officer who assisted police at the farm where Brian Day’s body was found and, later, at the Days’ home, where Shannon Day’s body was discovered;

• The coroner’s report for Shannon Day;

• X-rays of Brian Day’s body;

• Photos of the Brian Day crime scene shot by a local newspaper reporter who also served as an auxiliary police officer.

These are the circumstances under which Howard, Chesshir, Benca, and the judge will soon meet again in court. Chesshir said he’s confident he has enough evidence to convict Howard again.

And Cooper, the former prosecutor whose misconduct caused this ordeal and who might have sent Howard to death? What of him?

Cooper now serves as a circuit judge. I know he has been reported to the state supreme court’s Committee on Professional Conduct for his misconduct in Howard’s case because I submitted a complaint against him myself.

But, while that committee routinely sanctions Arkansas attorneys for infractions great and small, it has taken no action regarding Cooper.

That comes as no surprise.

In the past 25 years, no Arkansas prosecutor has been sanctioned.

Mara Leveritt, author of Devil’s Knot: The True Story of the West Memphis Three and Dark Spell: Surviving the Sentence, about the West Memphis Three, serves on the Board of Advisors of the Center for Prosecutor Integrity.