Today, the Arkansas Supreme Court ordered the case of Tim Howard back to circuit court to decide whether he should get a new trial. In a unanimous opinion, the court ruled that Howard’s claims of prosecutor misconduct at his 1999 trial have “apparent merit.” I outlined those claims last year in an article for the Arkansas Times.
(You’ll find an outline of the key issues in Howard’s case, as well as video from the recent oral arguments before the supreme court and a student-made video about the case, at the Arkansas Innocence Initiative.)
Last year I also complained to the Arkansas Supreme Court’s Office of Professional Conduct (OPC) about the behavior of Tom Cooper, the prosecutor in Howard’s case, and that of Dustin McDaniel, the state’s attorney general, in defending Cooper’s actions. I published that letter on this site. I immediately received a form letter from the Office of Professional Conduct stating: “YOU ARE PROHIBITED FROM RELEASING ANY INFORMATION OR DOCUMENTS ABOUT YOUR COMPLAINT FILED WITH THIS OFFICE TO ANYONE, INCLUDING THE NEWS MEDIA.” The letter warned: “ANYONE VIOLATING THIS CONFIDENTIALITY MAY BE FOUND TO BE IN CONTEMPT OF THE COURT AND PUINISHED BY FINE OR JAIL.” I posted that letter too on my site, along with my opinion that the order and accompanying threat violated the First Amendment.
In July 2011, the OPC notified me that it was dismissing my complaint against McDaniel but keeping open the one against Cooper, until a court weighed in with a decision on whether evidence had indeed been withheld. Ignoring the notice at the top of that letter that it was “Confidential,” I published its key elements here.
Also last year, I wrote similar complaints against prosecutors in the West Memphis case, received similar warnings from the OPC, and posted similar articles about both. Although the executive director of the OPC told a statewide newspaper that I could be held in contempt of court for writing about my complaints, no action has so far been taken against me.
I consider the OPC’s attempted intimidation to stifle free speech so serious that, last November, I filed a federal civil rights lawsuit. A trial has been scheduled for December 2013.
Now that the Arkansas Supreme Court has found “apparent merit” in Howard’s claims that evidence that might have exonerated him was withheld at his trial, I have again written to the OPC, asking that it investigate Cooper’s actions as prosecutor. (Cooper is now a circuit judge.) I also renewed my request that the office examine its policies regarding the actions of an attorney general in this case. Realizing that I may be “punished by fine or jail,” I here publish today’s letter to the OPC.
April 26, 2012
Mr. Stark Ligon, Executive Director
Supreme Court of Arkansas Office of Professional Conduct
Justice Building, Room 110
625 Marshall Street
Little Rock, AR 72201-1022
Dear Mr. Ligon:
On Feb. 15, 2011, I wrote to you complaining of apparent Brady violations in the case of Timothy Lamont Howard; specifically, that the prosecutor at his trial, Tom Cooper, withheld important evidence, and that the state’s attorney general, Dustin McDaniel, supported the verdict in Howard’s case, despite his office’s tacit acknowledgement that the evidence was withheld.
You responded that your office “has no authority to review the discretionary actions of appointed or elected officials, such as prosecuting attorneys, city attorneys, or sheriffs, in the discharge of their official duties,” and dismissed my complaint against McDaniel, and his subordinate, David R. Raupp.
However, with regard to my complaint against Cooper, who was also an elected official, you noted that you did not see “that any court, state or federal, has actually ruled on this specific issue yet…” You also wrote that, “Because the separate Brady violation issue really involves only Mr. Cooper…,” you would “keep the file open as to him and await any final court determination of that issue before proceeding further.”
This morning, the Arkansas Supreme Court unanimously granted Howard’s motion to reinvest the circuit court with jurisdiction in his case based on two “alleged Brady violations that have apparent merit.” As a result of that ruling, I repeat my request that the Office of Professional Conduct investigate Mr. Cooper’s actions as prosecutor in Mr. Howard’s case.
In light of this ruling and the legal profession’s “special responsibilities of self-government, “I also request that the Office of Professional Conduct re-examine its position of not entertaining complaints about the state’s attorney general, even in instances such as this, when he supported Mr. Cooper’s conduct by defending it. The attorney general did have the discretion to acknowledge the Brady violations, which he did not dispute and which the supreme court has now stated it regards as “apparent.” Had Mr. McDaniel taken that stance, he could have spared Mr. Howard the time—and the state the money—spent on protracted litigation.