Jury selection will start Thursday in Ashdown (Little River County) in the re-trial of Tim Howard, whose 1999 conviction and death sentence for murdering two friends was vacated in 2013 due to prosecutor misconduct.
Circuit Judge Charles Yeargan is also expected to rule that day on a second defense motion that alleges further prosecutor misconduct in the run-up to this new trial, as well as on my motion to be relieved of a prosecutor’s subpoena that could prevent me from reporting on the trial.
In the first motion alleging misconduct, Howard’s attorneys claimed that Prosecuting Attorney Bryan Chesshir had not provided them with required evidence, such as a coroner’s report, crime scene photos and police interviews. That motion also argued that subjecting Howard to a second trial after the state had engaged in misconduct at his first trial amounted to double jeopardy. Yeargan denied that motion.
In a motion filed last week, defense attorneys charged that Chesshir was engaging in additional misconduct.
They asked the judge to dismiss the charges against Howard due to claims that Chesshir has abused his official powers by subpoenaing defense witnesses “to determine what their testimony will be at trial,” by “subjecting some of these witnesses to numerous prosecutor subpoenas to elicit information from them regarding their conversations with the defense team,” and by using the prosecutor subpoena to put witnesses in a room together, with an investigator and a prosecutor, to compare their testimony and to cajole answers from witnesses.”
According to the latest motion, one defense witness whom Chesshir subpoenaed subsequently told Howard’s attorneys “that he was unaware of many of the facts in the case until he heard it from the other witness who was being asked questions right in front of him.”
Another defense witness questioned by Chesshir reportedly “indicated that she felt as though the prosecutor was attempting to get her to adopt the version of events” that was outlined by her ex-husband, who was questioned with her.
Little Rock attorney Patrick Benca argued in the motion to dismiss that Howard “is being denied equal protection of the law by the state asserting a power to coerce defense witnesses to testify before trial and under oath, and the defendant not having this equal power.”
Benca also argued that Chesshir’s practice of subpoenaing defense witnesses as he has “runs a serious risk of witness intimidation” and of violating of laws that require prosecutors to disclose to the defense information learned in interviews conducted by state officials.
Chesshir reportedly has not provided such information to the defense. Nor has he filed a written response to Benca’s recent motion.
Similarly, Chesshir has not filed a written response to the motion I filed on March 16, asking the court to relieve me of a subpoena by Chesshir to appear as a witness for the state at Howard’s trial and and to bring with me all “notes and recordings” of interviews I’ve conducted with Howard.
As before, Chesshir asked the court to hold a hearing on this motion, and Yeargan agreed. That hearing is scheduled for Thursday, at which time I expect to learn whether I will be allowed to attend and report on the trial.
Chesshir’s subpoena to appear at Howard’s trial was the second I’ve received from him. The first commanded that I appear to be interviewed by him the last week of February. I complied and for an hour answered questions about my reporting as a state police investigator listened and Chesshir’s secretary took notes.
I told Chesshir I knew nothing about Howard or the victims at the time of the crime and had no knowledge of the case beyond what I had written or what had already been presented in court. Yet, as I was leaving the courthouse, deputies served me with the subpoena to appear at the trial starting later this week.
That subpoena means that, as a potential witness, I could be excluded from the courtroom during the trial of a case on which I’ve reported for 13 years. During my questioning, Chesshir told me he did not intend to bar me from the courtroom, but while under subpoena, I have no assurance that I will be allowed in.
In my motion to quash the subpoena, my attorney, Matt Campbell, wrote that, “Given that the trial in this case is a re-trial, for which a conviction was already previously obtained, logic dictates that nothing in Ms. Leveritt’s notes is essential to Mr. Chesshir’s ability to present the State’s case, and there is no ‘clear and imminent threat to the fair administration of justice’ that would support Mr. Chesshir’s infringement of the freedom of the press.”
He also wrote that the subpoena was “at best, a fishing expedition by the prosecuting attorney, which has been expressly disallowed by the Arkansas Supreme Court.”