(Disclosure: I have written about the case of Tim Howard extensively and consider him a friend. This article is based on interviews with him and documents provided by him. The attorneys involved all declined to comment.
(The exceptional detail of this article reflects my concern about the ferocity of the fight at its heart: Can court-appointed attorneys override a competent client’s decisions? The issue is now before U.S. District Judge Brian Miller—for the second time.)
One of the first rules of professional conduct for Arkansas attorneys is that they “shall abide by a client’s decisions concerning the objectives of representation” … and “consult with the client as to the means by which they are to be pursued.”
Tim Howard, an inmate on Arkansas’s death row, has professed his innocence since 1998 when he was charged with murdering two of his closest friends. He has a clear idea of what he wants from the federal attorneys representing him. He wants exoneration.
From the start, Howard has told his attorneys that he wants no deal for life without parole. He has told them that he hates the arguments they’ve filed for him—against his wishes—claiming that he’s mentally retarded, because he’s not. He wants simply to establish his innocence or be put to death.
After 13 years on death row, Howard now stands a decent chance of getting a new trial. The Arkansas Supreme Court recently sent his case back to the circuit court in Little River County because of “apparent” prosecutor misconduct.
Howard thanks his federal public defenders for getting him to this point. But, just as circumstances are looking about as good as they can for a person sentenced to death, Howard feels that the very attorneys who have helped him are now betraying him.
For the past two months, the legal community in central Arkansas has buzzed with gossip about Howard’s case, because he wants to add a new lawyer to his team and that lawyer has agreed to help him for free. But Howard’s court-appointed federal defenders have gone to the mat to keep the new lawyer out.
At issue is who gets to make key decisions regarding Howard’s case: the client or his appointed attorneys? Howard realizes that if a circuit court in Little River County orders a new trial for him, he will need a state lawyer—rather than his federal public defenders—to represent him.
Looking ahead to that possibility, Howard foresaw that it could take years for a new lawyer to familiarize himself with the 14 years of legal proceedings that have already occurred in his case. Not wanting to spend any more time in prison than he must, Howard asked Little Rock attorney Patrick Benca if he would meet with him.
Some would view that as an inspired request. Benca is an aggressive criminal defense attorney. He has successfully represented several clients facing capital charges, and often works on death cases for the state public defender’s office.
Benca’s most celebrated win came last year, when he helped negotiate the release from death row of Damien Echols, one of the men known as the West Memphis Three. Like Howard, Echols was facing the prospect of a possible new trial. The so-called Alford plea that Benca and attorney Steve Braga arranged freed Echols and his co-defendants, while sparing them and the state the uncertainties of a new trial.
When Howard wrote to Benca, asking him to visit, he had no way of knowing that his request would unleash a firestorm of court filings, counter-filings, emails, heated meetings and letters. Nor could he have imagined that his own lawyers would file motions in his name opposing his explicit wishes.
The situation has left Howard and others who know of it baffled. Some have chosen sides in the battle. Here’s a blow-by-blow account of the fight so far.
Benca visited Howard on July 26, and according to Howard, the two hit it off. Benca agreed to represent Howard without charge, starting by preparing for the new trial that might lie ahead. He explained to Howard that the routine for coming on as one of Howard’s attorney’s would be for him to file what’s called an “entry of appearance” with the federal court.
Benca asked Howard to put his request that he enter an appearance in writing, which Howard did. Following that, Howard requested a visit from his lead federal attorney, Scott Braden. Howard wanted to personally inform Braden about his invitation to Benca.
Braden visited Howard on Aug. 3. Howard explained what he had done. He said the only reservation Braden expressed about having Benca join the team concerned confidentiality, but that he had assured Braden that, as an attorney of record, Benca would be bound by the same confidentiality rules that bound Braden and the other public defenders.
Howard returned to his cell believing that the matter was settled. He had no idea of what was already starting, to the contrary, in Little Rock. He would not learn anything about what was unfolding for a couple of days, when he received mail from Benca.
What that mail revealed was that on the same day that Howard told Braden of his intention to bring Benca onboard, Benca had notified the Federal Public Defender Office in Little Rock that Howard had requested him. Benca addressed the email to Braden; to attorney Josh Lee, who has also worked closely on Howard’s case; and to their boss, Jenniffer Horan.
Benca explained that he had met with Howard at Howard’s invitation and that he agreed with Howard’s “desire to have attorneys in place and prepared for when the state hearings proceed.” He said he planned to enter his appearance in Howard’s case now because, “Being an attorney of record will get me access to the records and files necessary so that I can get up to speed.”
Benca wrote: “I assure you this is not an attempt to take over the case, but to be prepared as the case moves from the federal level back to the state courtroom.” He also explained that he had discussed the matter “at length” with Didi Sallings, director of Arkansas’s Public Defender Commission, and that “we both agreed that I should reach out to you as to how next to proceed.”
That email ignited a furor that has yet to abate. Benca sent his email at 2 p.m. Horan responded eight minutes later.
“we have this case covered,” she wrote, “so please do not enter an appearance, If we need you to do so at some point in the future, we will let you know. please send me a copy of tim’s letter, if you will, so our file will be complete. and thank you for your concern about our client.”
Another of the state supreme court’s fundamental rules for the professional conduct of attorneys is that they “shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished” and “keep the client reasonably informed about the status of the matter.”
Horan did not speak with Howard before sending her email rejecting Benca. Whether Braden had communicated with the office about his conversation with Howard by the time Horan’s email was sent is unclear. What is clear is that the only thing Howard had told anyone from the office by the afternoon of Aug. 3 was that he wanted Benca to be part of his team going forward.
On Aug. 9, Howard wrote to Horan. In his letter, he formally expressed his decision to have Benca “enter an appearance on my behalf at this time, so as to be ready for state court proceedings.” Noting that he had already explained his reasons to Braden, Howard wrote:
“I hope everyone there will be courteous and accept my decision. Welcoming Patrick with open arms so he can get up to speed can only help me in the long run. If I need to do anything else to make Mr. Benca’s transition easier or more official, please let me know.”
August 10—the filings
The following day, on Aug. 10, Benca submitted his one-sentence pro forma “entry of appearance” in U.S. District Court. That was the first of what would turn out to be three filings on the matter before the day was over. The second was a two-page motion filed by Braden to stay—or stop—Benca’s appearance.
Braden’s motion to stay noted that the court had appointed the federal public defenders to represent Howard in 2006 and, when part of Howard’s case was sent back for review by the Arkansas Supreme Court in 2009, that court had also appointed the federal public defenders as Howard’s “sole counsel.”
While claiming that the federal attorneys have “an excellent attorney-client relationship with Mr. Howard,” the motion argued that their office “denies that Mr. Howard has any attorney-client relationship with Mr. Benca, denies that Mr. Benca has any authority to act on behalf of Mr. Howard in this matter, and denies that Mr. Howard wants Mr. Benca [to] act on his behalf in this matter.”
Braden’s motion further stated that, in communication with their office, Benca had “threatened” … “to unilaterally appoint himself as co-counsel.” That prompted the day’s third filing: Benca’s response, which included copies of the email exchange between Horan and himself.
In his response, Benca wrote that he had no intentions of filing any pleading concerning Howard beyond the entry of appearance, but that he could not ignore “the baseless allegations” set out in Braden’s motion. “Not once did I ‘threaten’ to enter my appearance and take issue with the accusation,” Benca wrote.
Benca took further issue with Braden’s “accusation” that he did not have an attorney-client relationship with Howard. Benca wrote: “I received a two-page letter from Mr. Howard today. His request was quite clear—enter your appearance. So, I did. He has an absolute right to be represented by counsel of his choice.”
He explained that in his email to the federal attorneys, “I made sure that I was not entering my appearance to act as ‘co-counsel’ in his current matters, but to put myself in a position to get up to speed on current events and to enable me access to documents that a ‘counsel of record’ would be entitled.”
Benca assured the court that he had no intention of getting involved in work the federal attorneys were currently doing. He added: “I believe wholeheartedly” that Howard’s interests “now are best represented” by his federal defenders.
August 10—the emails
But that did not end the day’s dispute. At 3:55 p.m., Horan sent an email to Benca in which she noted her surprise and disappointment that he’d filed his entry of appearance “even after being instructed not to.” She told Benca that her office would be filing a supplemental response to his pleading early next week, adding: “and—although we do not want to embarrass you in front of the new chief judge—we will, of necessity, be obliged to inform the court of all the relevant facts regarding this matter.”
That said, Horan asked Benca to “again, please send me a copy of the letter you received from tim so that we can include its contents in our pleading if needed.”
At 5:45, federal attorney Josh Lee emailed Benca to say that only someone appointed by the Arkansas Supreme Court could represent Howard at this point. Lee wrote: “If your sole intention is to represent Mr. Howard in the event of a retrial (an eventuality that would be a year or more away, as Mr. Howard knows), this is not the way to go about it.”
That evening Benca responded to Horan and Lee individually. To Lee he wrote: “I’m fully aware of the status of the case, Mr. Lee. I did not enter my appearance in state court. That said, I believe a clients right to counsel of his choice would trump any state case law or federal law, for that matter. It’s the client’s wish, Mr. Lee. Nobody else’s.”
Benca told Horan: “First, attempting to embarrass me will do no service to Mr. Howard … Second, you have nothing that will embarrass me,” and that the letters Howard had sent him “will not further your cause to ‘embarrass me.’”
Benca concluded: “It is apparent to me that you hold this case near and dear, as you should. But do it for the right reasons—for Tim. I’m a nobody in this until it gets to trial in state court. Until then your team will have all my support.”
August 10—the aftermath
Benca sent Howard copies of everything that transpired on Aug. 10th—the filings and the emails. By contrast, Howard’s public defenders sent him no notice of those actions concerning him. He had not heard from them since Aug. 3.
That lack of communication was not unusual, Howard said. While acknowledging that “They’ve done a good job, they have made progress in my case,” Howard claimed that getting information from his federal attorneys had always been “sporadic at best.”
“I’ve told them I want to see what they’re filing for me before they file it,” he said. “But they never send me a draft. I don’t get it until after they wrote it and filed it.”
Another sore spot with regard to what the rules of professional conduct call “the objectives of representation” concerned mental retardation. Howard insists that, while not formally educated, he is not mentally retarded, and he has repeatedly asked his federal attorneys not to claim that he is—even if they believe that the argument might spare him execution. Despite his requests that they devote the space in his pleadings to evidence of innocence, the issue of his supposed mental handicaps has been raised in every one.
Even with that history, Howard said he found the situation surrounding Benca alarming. “This issue should never have left between my lawyers and Patrick Benca and me,” Howard said. However, despite his requests, he said, the federal public defenders refused to meet with Benca and him together.
As Howard saw it, his invitation to ask Benca to help at this stage of his battle was nothing less than a life-and-death decision. “In the end,” Howard said, “it’s my life and my decision.” He found it incredible that his own attorneys would fight him on it in court.
“This is a fight that I never anticipated myself having,” he said, “with people who are supposed to have my best interest at heart. This makes no sense to me.”
Horan contacted Sallings, at the Arkansas Public Defender Commission, in an attempt to resolve the situation. A meeting was arranged between the federal attorneys, Benca, and Benca’s associate, Birc Morledge. Howard said Benca reported that the meeting did not go well.
According to Howard, his public defenders did not budge from their position. In addition, he said, they demanded that Benca turn over to them all correspondence he had received from Howard. Benca reportedly refused, arguing that he had accepted Howard as a client, the federal attorneys were opposing him in that role, and that to turn over Howard’s letters under those circumstances would betray the confidentiality he owed Howard.
Howard called Horan on Tuesday, Aug. 14 to ask if she had received the letter from him stating that he wanted Benca. He recalled that Horan said she did not believe she had. At that point, Howard said, he told Horan by telephone, “I specifically asked you to work with Mr. Benca.” He said he then outlined again for Horan everything he had written in the letter she said she had not received.
According to Howard, Horan warned him during the phone call that, by insisting on bringing in a private attorney, he risked losing the team of federal attorneys and investigators who had been appointed in his case because he’s indigent. Howard argued that Benca was offering to work for free.
But the federal attorneys were already on an opposing course. The same day that Horan spoke to Howard by phone, she filed in federal court a pleading titled a “Supplemental Response in Opposition to Private Counsel’s Entry of Appearance in this Federal Public Defender Office Case.”
The document’s first job was humble. Horan apologized to Benca and the court “for the sharp language” of Braden’s motion to stay. What followed, though, was a reiteration of her claim that Howard “does not need the assistance of private counsel.”
Horan allowed that she was willing to provide Benca with the 15,000-page public record of Howard’s case, and that when the time came that Howard needed a lawyer in state court, her office would turn over its entire “confidential work product” to anyone the state appointed to represent “this indigent death-row inmate.” But, she wrote, “it will be a very long time” before that is needed.
It now appeared that the key issue in the dispute was whether Benca would be afforded access to Howard’s entire file. Horan wrote that she had offered to provide Benca with the public record in Howard’s case “in return for his withdrawal of entry of appearance.” She wrote that, “That offer was turned down by Mr. Benca because he wants full access to appointed counsel’s confidential work product.”
Horan’s position was that “the Federal Public Defender Office is not willing to open its entire case file to someone who may or may not be appointed by the state court” to represent Howard “at some distant point in the future.” A footnote to the pleading observed: “There are other fundamental differences which exist between appointed counsel and Mr. Benca regarding the legal representation of indigent petitioners, such as the efficacy of media contact, for example.”
To Howard, the most astonishing part of Horan’s public filing was her statement that, if Benca “absolutely must have access” to Howard’s entire file, he should file a motion to replace her office as Howard’s representative.
“In fact,” Horan wrote, “that may be the best course of action, since it is questionable whether appointed counsel’s attorney-client relationship with Mr. Howard can be repaired, in light of the present circumstances.”
The day after Horan filed her “supplemental response” in opposition to Benca’s appearance, she responded to the letter Howard had sent six days before. Horan wrote: “As I explained to you in detail yesterday, the Federal Public Defender Office will provide Mr. Benca with the 15,000 page public record in your case, but we will not allow access to our confidential work product.”
Horan sent Benca a package via Federal Express. A note from her explained: “Here is a DVD which contains the fifteen thousand pages of public record in the Tim Howard case.” Howard was copied on that letter.
Benca wrote a letter to Horan in which he outlined the events of the past four weeks. To explain his interest in Howard’s entire file he cited another rule of professional conduct—one requiring that a lawyer “pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”
He also noted that, contrary to what he was told at the Aug. 13 meeting with the public defenders, “Now, I know that Mr. Braden, Mr. Lee, and yourself were made completely aware of Tim’s position and his request that I be and remain as an attorney of record prior to my arrival.”
Benca asked Horan: “What authority do you believe supports your position to not abide by Tim’s decision?” And, Benca asked rhetorically, knowing what Howard wanted, “Did you convey his position to the Court?”
“No,” Benca answered his own question, “you purposely ignored his legitimate request and still proceed opposite of what he asked.”
Finally, Benca addressed Horan’s claim that the federal defenders’ relationship with Howard may have been harmed beyond repair. He wrote that neither Howard’s actions nor his “had anything to do with where we are at now. If you would have listened to Tim and followed the Rules of Professional Conduct, you would have not created the position that we are all now in.”
Kumpe noted that the letter was a follow-up to a telephone conversation he’d had with Benca two days earlier. In that conversation, Kumpe wrote, he told Benca that the Federal Public Defender Office had asked his firm “to evaluate the circumstances” surrounding Benca’s entry of appearance in Howard’s case.
Kumpe wrote: “Notwithstanding that your representation in that matter is contingent since it is not certain that a re-trial will be ordered, you have demanded the complete file presently maintained by the Federal Public Defender Office including all confidential work-product and expert reports in that file.”
Kumpe told Benca, “We believe you overstate the Federal Public Defender’s obligations” under the rules of professional conduct “at this time.” He also observed that Benca’s professional obligations to Howard were “somewhat ambiguous.”
Though Kumpe noted that Howard had told his public defenders “that he does desire to retain you,” he told Benca, “The information you are seeking is highly sensitive and without a more clear cut professional commitment and resulting responsibility, a disclosure to you under these circumstances could be contrary to Mr. Howard’s interest.”
After observing that, “It is well documented that most prisoners on death row struggle with cognitive issues that stem from a variety of circumstances,” Kumpe cited a 2009 case in which Associate Justice Robert Brown, of the Arkansas Supreme Court had participated. In that case, Kumpe said Brown had written that, “under conditions of extreme necessity a lawyer may properly refuse for a client’s own benefit to disclose documents to the client unless a tribunal has required disclosure.”
According to Kumpe, “The Federal Public Defender Office believes those circumstances are present here, and although we have not had access to the work-product at issue, we believe its concerns are reasonable.”
Ultimately, Kumpe told Benca that his firm had recommended that the public defenders “follow the guidance of the Court.” But he added, “If Judge [Brian] Miller believes the circumstances warrant the disclosure you seek, then we further recommend that the Federal Defender Office seek to obtain judicial protection for that information in your possession…”
Howard, who was copied on the letter, was indignant that an attorney he had never met would be asked to weigh in on a matter that he considered confidential—or that had been confidential until his federal defenders took their motion opposing Benca to court. As to Kumpe’s inference about death row inmates’ “cognitive issues,” Howard observed, “I take exception to that.”
Benca moved next. He wrote a letter on Aug. 30 to William J. Riley, Chief Judge of the Eighth Circuit Court of Appeals—and Horan’s superior in the federal system. He attached many of the documents, emails and letters outlined here, explaining that he believed they “paint a good picture of what has transpired.”
He noted that in Horan’s supplemental pleading on Aug. 14, “she listed as a footnote that Mr. Howard had made the request that I be his attorney for his retrial in state court. This fact was deserving of more than a footnote.”
Benca also reported the phone call and subsequent letter from Kumpe, particularly Kumpe’s suggestion that, if Judge Miller granted him access to Howard’s whole file, it should be under “judicial protection.” To that, Benca wrote: “I am an Officer of the Court. I understand what my role is in that capacity. If Mr. Kumpe read what I have attached, he would know there is no ‘ambiguity’ in my position in representing Mr. Howard.”
Benca asked Judge Riley to intervene in the matter “for the sake of Mr. Howard, who now is wondering why Ms. Horan questions in her most recent pleading, whether her office’s attorney-client relationship can be repaired. Ms. Horan’s initial position, which she refused to back down from, with no authority, has caused the concern that Mr. Howard now feels.”
Benca copied Horan and Kumpe on his letter to Judge Riley. The next day, Horan wrote to Kristine Schneiss, Riley’s administrative assistant, saying she was “quite surprised” by Benca’s letter to Riley because the matter was “currently pending” in the federal district court in Little Rock, which, she considered the “proper forum.”
A week later, when there had been no word from either Judge Miller or Judge Riley, federal attorneys Braden and Lee visited Howard again. Howard described the meeting as “very confrontational.” He told his public defenders that he intended to write to Judge Miller. Howard said Braden advised him not to.
Week of September 9
While the question about Benca remained in limbo, Howard was visited in prison by a clinical psychologist. His federal defenders had arranged for him to undergo a psychological assessment weeks before the issue about Benca arose. He had agreed to it, and now, despite misgivings about the federal attorneys’ intent, he kept that commitment.
Dr. Victoria Reynolds, a clinical associate in psychiatry at Duke University Medical Center, spent two days with Howard. He said he liked her and that, at one point in their conversations, she had told him, “You are brighter than what I was led to believe.”
In a letter dated Sept. 14, addressed to Benca and Horan, Riley, of the Eighth Circuit Court of Appeals, wrote that he had reviewed both their letters. He concluded that he did “not have any authority to investigate or mediate this matter.”
Now Howard spoke up for himself. On Monday, Sept. 17, he mailed a letter directly to Judge Miller. He explained that he was taking the unusual action “because of an issue between me and my current federal attorneys that has turned into a tug of war.” He added: “It was never my intention to involve you but Mrs. Horan has made that impossible now.”
Howard explained that he had asked Benca to meet with him “to discuss the possibility of me getting a new trial,” as his current attorneys had informed him that if he ever got one, “they couldn’t defend me and would help find someone else.”
Howard wrote: “My reasoning was based on what could happen, and me trying to be ready if it did and have an attorney already up to speed instead of waiting for another two years at least, for him to catch up.”
Howard told the judge of the meeting when he’d announced his decision to Braden—and what he later learned had followed it. “Unbeknownest to me or Mr. Braden,” Howard wrote, “during our meeting, Mr. Benca sent Mrs. Horan an email to notify her of his pending appearance on my behalf and asked her how to proceed. Mrs. Horan responded within eight minutes with an emphatic no, without a word to me.”
He added that he had asked Horan to get Braden, Lee and Benca “to come here to the prison and we all work this out.” But, he wrote, “She refused.”
“Since Mrs. Horan has stepped into this situation it has went down hill and I have no voice,” Howard told the judge. He explained that he, Braden, and Lee have had “numerous disagreements” over the years, and that after some of them, “we’ve had to forgo communications a few days to let our verbal wounds heal. But never has our working relationship been as dire as it has been since Mrs. Horan’s presence.”
Howard then raised the most sensitive part of his letter to the judge: the correspondence to Benca from “a Peter G. Kumpe of Williams & Anderson PLC”, which Howard described as “basically a cease and desist letter.”
Howard wrote: “I have numerous issues with this letter but will only name a few. Number one, I don’t know this man and he doesn’t know me. He calls Mr. Benca’s professional obligations ambiguous. If Mr. Kumpe had taken the time to read Mr. Benca’s reply to Scott Braden he would see it’s right there in black and white and there’s nothing ambiguous about it.”
He continued: “But my main gripe with Mr. Kumpe is having the audacity to try and imply something about me having cognitive issues that stem from a variety of circumstances. … It seems to me that if Mrs. Horan was worried about me or client confidentiality, Mr. Kumpe definitely wouldn’t have been invited to the party.”
Howard asked Miller to allow Mr. Benca “to join the team.” He concluded, in an apparent reference to the suggestion that he might be cognitively impaired: “If you doubt that any of these words are mine, I’ll be more than happy to appear before the court and speak on my own behalf.”
Precisely when Howard’s letter reached Judge Miller is not clear. But on Wednesday, two days after Howard mailed it, Miller issued his ruling. The judge denied Benca’s motion to represent Howard, noting that “Benca does not intend to serve as co-counsel in Howard’s pending federal case…”
Two days later Benca filed a motion asking Judge Miller to reconsider. Benca pointed out that “Tim Howard has indicated to everyone involved in this matter that he wants counsel to enter his appearance.” He continued:
“Mr. Howard is currently sitting on death row. His statutory right to counsel is reflected in the representation currently being provided by appointment of the Federal Public Defender. Mr. Howard contends that his right to additional, uncompensated and qualified counsel is comparable to the right to counsel of choice under the Sixth Amendment for a defendant accused of a criminal charge.”
With that, Benca cited a ruling by the U.S. Supreme Court in 2006 that found in favor of a man named Cuauhtemoc Gonzalez-Lopez. That case involved a similar dispute about one attorney having been hired to represent Gonzalez-Lopez on a marijuana charge and the defendant’s wish to have a second lawyer brought on.
The district court denied the second attorney’s repeated attempts to join Gonzalez-Lopez’s case. When Gonzalez-Lopez was found guilty, he appealed, claiming that he should have been allowed to have the counsel of his choice.
The Eight Circuit Court of Appeals agreed and reversed Gonzalez-Lopez’s conviction. When the case went to the U.S. Supreme Court, it agreed as well. Benca wrote in his motion that the supreme court held that the “defendant’s right to counsel of choice was paramount, absent very few exceptions…” None of those exceptions, he wrote, applied to Howard’s situation.
Benca asked the court to reconsider its position and allow him “to appear as ‘co-counsel’ in this case.” If Miller felt reservations about doing that, Benca asked that he order an evidentiary hearing at which Howard “may appear personally and advise the Court of his preference and understanding of his right to counsel…”
This battle has now been waged for two months behind the scenes, though on public record. For the moment, the issue rests back in Miller’s hands.