Fired-up: Benca responds to marijuana proposal stricken from ballot

The battle between Arkansas proponents of the two medical marijuana efforts that will appear on the ballot has gotten hotter since the state supreme court struck one of them—Issue 7—after a lawsuit challenging it was filed by Little Rock attorney Kara Benca, with the support of her husband, Patrick Benca, who is also an attorney.

Both Bencas say they are longtime members of NORML (National Organization for Reform of Marijuana Laws), that they want to see marijuana legalized, and that their concerns about Issue 7 were shared by many patients who claim to need medical marijuana.

Patrick Benca said that, due to those concerns, some of these sufferers wanted to sign on as the petitioners in a lawsuit challenging Issue 7. However, fearing that the lawsuit would anger other medical-marijuana proponents, and not wanting people already in pain to face that potential reaction, the Bencas decided that Kara would file as the sole petitioner.

Patrick Benca now says that he and Kara underestimated how fierce the response to their lawsuit would become. To illustrate the intensity of the debate among legalization proponents—and to explain his and his wife’s position—he sent me the following email from an irate supporter, along with his response.

I asked permission to publish them. He agreed. I have edited both slightly for clarity.

First, the email from a supporter who knew Patrick Benca from years ago:

“Long time since we bartended together.  I never did think your wife would be SO against trying to get Medical Cannabis OFF the ballot.  I guess neither of you have experienced someone that has battled cancer.

“I have three friends that have fought. Two have passed since 2012.  I am disgusted with your decision to go after Arkansas Compassion.  Opiates are what you need to go after! People die every day on those meds, and there is NOT a single recorded death from marijuana.

“Doctors won’t get on board because they are afraid of losing their licenses and outrageous salaries. Marijuana will bring in millions of tax dollars to our state, and the positives outweigh the negatives by a long shot.

“I am pretty sure the pharmaceutical companies and/or politicians are paying you under the table to go after this ‘volunteered organization’ that spent MANY hours/months over the last two years to get signatures.  I am saddened that y’all decided to make this decision.  You two should sit down with some popcorn this weekend and watch some YouTube.  You might get educated for a change.”

The writer, who signed himself “Sincerely Pissed,” then provided links to the following videos:

Here is Patrick Benca’s response:

“As with everyone I have respect for, I always make sure that he/she gets fair shake and the benefit of the doubt. You will always get that from me. So, I am asking that you read what I have to say.

“My wife and I are for the outright legalization of marijuana. Period. That has always been our position. We began to understand this long before the opioid epidemic began getting the attention it does today. For years I have seen the faces and represented the lost souls of those addicted to opioids and other heinous drugs. I’ve seen more than you. I promise.

“So…marijuana. Here is what I have not seen in the last 16 years of my criminal defense experience:

“A client state that he killed, robbed, raped, or committed any other criminal act because of marijuana. Of course, the exception is those who engaged in transportation and delivery of this now-illegal drug. Another factor as to why legalizing Is the way to go.  I’m sure you and I can both wax on about the benefits of this truly wonderful plant.

“Medical Marijuana: I know this subject inside and out. I know the medical benefits through and through. There is not much I do not know on the subject. My wife and I have made it a passion. Our area of practice has given us opportunities to hear compelling stories. We have had a handful of clients who were veterans of our recent wars.  I know the struggles of PTSD and have seen the miracle transition that marijuana provides. It’s breathtaking.

“I lay this brief summary of a background to possibly instill in you the passion my wife and I have on this issue.

“That said, issues 6 and 7:  6 is an amendment and 7 is an initiated act. Big difference. The amendment, if passed, would make it exceedingly difficult for legislators (a majority that oppose it) to slow down its implementation come January 1.   If Issue 7 passed, the legislature would have a great amount of control and would promulgate rules to get it implemented and up and running. This is one of the reasons why more signatures are required to get the amendment on the ballot.

“In short, with Issue 6, the patients that need medical marijuana in Arkansas would have it likely far sooner than with the initiative (issue 7).  With 6, you have nearly a bullet-proof piece of law that can only be undone by voters on a ballot after its passage AND it’s in the hands of patients faster.

“Self-Grow: this is the provision that prevented the medical marijuana act to be passed in 2012. The sponsors on that act polled medical marijuana before running the petitions and getting it on the ballot. They had the numbers and it appeared that 55 to 60 percent of voters were in favor. Very solid numbers. It got on the ballot and failed at the election box. The sponsors couldn’t figure out what the problem was. So, they conducted a poll. They figured out that the failure was due to the ‘self grow’ provision. Arkansas voters were not comfortable with patients living outside the zone of a dispensary growing plants without regulation. These polls corroborated the voting percentages seen on Election Day.  It was a huge defeat for the cause.

“The sponsors went back to the drawing board. Initially, I believe both David Couch [who backed Issue 6] and and Melissa Fults [who backed Issue 7] wanted self-grow, but Couch was convinced that voters weren’t comfortable with it yet. So … baby steps. Ultimately, Couch and Fults split on the point and worked hard on advancing their respective issues.

“They are great people. Passionate in all aspects. David felt that the initiative was on the path of failing again because it included self-grow. If he was right, there would be nothing in Arkansas until another presidential cycle in 2020. There is no advocate that could let that happen. Too risky.

“We found out about the signature problem with Issue 7 about the same time others learned. It was known and a lawsuit was coming. Better it came from a medical marijuana supporter than an opponent. A lawsuit from an outright opponent of medical marijuana would have most assuredly killed both come election time.

“So, we decided to file. We had patients desperate to be the petitioner in this lawsuit because they felt, as we did, that the initiative would fail for a number of reasons, but most concerning was the self-grow aspect.   They wanted assurance they could get access to marijuana sooner rather than later.

“Also, we had doctors who know the benefits of marijuana that wanted to be the petitioner. We decided that we did not want to put the very people that were meant to benefit from all of this work at risk of public scrutiny and professional scorn.

“Kara had no problems taking the heat for this cause. She didn’t even flinch. I don’t believe she would have ever fathomed the sheer hate sent her way. The threats. Being called a cunt. Right now, she is with my children at her parents’ house because of all this.  My children had to be taken out of school. This is the thanks that she gets. And she is getting it from the very people she has had empathy for. Pretty fucked up, if you ask me. But not everyone is me, right?

“There is nobody who prays harder and thinks more about the people who would benefit from medical marijuana than Kara.   She knows more and has seen more than you and I put together.

“Timing of the lawsuit:  A lot of complaints are that voters do not get the opportunity to revisit the ballot box because they have already cast their vote. This isn’t the supreme court’s fault. The lawsuit was filed at the earliest possible moment. The rules in place and the procedures that you have to follow make it nearly impossible to get a measure removed from the ballot prior to it being printed.

“The legislature needs to change the timelines and deadlines to ensure sufficient time to challenge and, if successful, to have an issue scrubbed from the ballot. This would help ensure that voters are not disenfranchised, which is exactly how they feel right now. I understand that and dig their frustration. They need to call their legislator to get the laws and rules changed.

“In sum, it is clear that many have not educated themselves as to both measures. If they had, they would know that:

  1. The amendment is the best law. It would be virtually here to stay.
  2. It was the most likely to win on Election Day.
  3. It is the best law to get patients the marijuana they need soonest (always the most important consideration).
  4. Self-grow will eventually get here.  Our hope is that marijuana is fully legal within the next eight years.

Now add in all of the other benefits you mentioned in your email to me.

“Kara and I do not deserve your or anyone else’s snarky remarks, threats, and hateful words. Your words disappoint me.”

Super Bowl Sunday

Hello People of the Blogosphere!

It is Super Bowl Sunday. And since my NE Patriots didn’t make the cut, I’m rooting for Carolina. However I won’t watch the game because three hours of football is just a little too much for me. I’d like to view the commercials but extra-curricular activity in the area makes tv viewing undesirable.

Since I last wrote, I’ve read Cut and Thrust, Paris Match, Insatiable Appetites, Naked Greed, and Foreign Affairs.  All of these were written by Stuart Woods and I’d like to thank the person who sent these to me. Also, I read The First Mountain Man by William Johnstone and I’d like to thank another special person for that. I’m currently reading Chiefs by Woods but haven’t made up my mind if I like it yet or not. I normally read two books at a time to give me something like a channel or movie change. So, the other one I am starting is called A Separate Peace by John Knowles. I’ll let you know how it goes.

I have a question for those of you who would like to answer. Why do you read this blog? I’m not under any illusion that everyone who reads this may like me, so I look forward to your replies. I know that there’s at least one of you who feels that I wouldn’t want to hear from you personally. I won’t mention your name without permission. But nothing could be further from the truth. I’d very much like to thank you for your kindness and continued support.

Also my question for the blog is this: how do you feel about our legal system as a whole? Do you think it works? Do any of you out there have personal knowledge of prison life?

I’ll be back soon. Keep in mind that I probably can’t get in but one posting a week because I have to use snail mail to get to a computer.

Send your questions here.

Tim Howard

p.s. All responses are printed and mailed to Tim – your email addresses not is included.

Tim Howard Beginner’s Blog

Tim Howard Beginners's Blog

I’m not totally clear about how to do a blog, so please bear with me.

I’m assuming that if you’re reading this, you must have some knowledge of who I am and where I am. So what I’ll do is try to give some kind of overview as to who I am and what I like. I’ll answer any questions asked about prison life if I can. I’ll also share some of my personal life. If there’s anything I can’t or won’t answer, I hope you will respect that. If anyone chooses to write, I’ll write back.

I grew up in the Tri-State area. I consider Texarkana-Ogden-Ashdown my stomping grounds. I love horses and cows and pickups and diesels. I’m married. I have no biological children. I have four stepchildren. I dislike the term stepchildren, so I normally refer to them as just my children. One died in a single-car accident at the age of 21 years old. We miss him every day. The other three are by my second wife, who died while I was on the row. I’m married to my first wife again. I haven’t communicated with my three other children in over a decade. I hope that changes one day. Both my parents and grandparents are deceased. I have two sisters. One is 45, the other 48. I’m in the middle. I have a host of cousins that I don’t hear from. My aunt and oldest sister write occasionally I’m blessed to have met some wonderful people who have turned out to be closer to me than family. You will find out more about them as this story unfolds.


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I love reading and listening to music. A few of my favorite authors are: Ken Follett, William Johnstone, Barbara Taylor Bradford, Sandra Brown, Karin Slaughter, Patricia Cornwell, Amarantha Knight, James Patterson, Stuart Woods, John Sandford, Margaret Wies/Tracy Hickman, Terry Goodkind. I could go on but I won’t. I love all genres of books and music. I’m not much on biographies but will read one that sticks in my mind when I’m reading my historical fiction. I really like historical fiction and family sagas.

My tastes in music touch on everything almost. But if I could only listen to one station, it would be playing country music. But luckily I have choices. And here’s the artists I have on my MP4 so far (87 songs): 2 Pac, AC/DC, Adele, Al Green, Albert King, B.B. King, Becky G, Boosie Badazz, Britney Spears, Brooks-N-Dunn, Bruno Mars, Cinderella, Destiny’s Child, Ed Sheeran, George Jones, George Strait, Gerald LeVert, Iggy Azalea, Jason Aldean, Jermaine Dupri, Jerry Reed, Jewel, Jon Conor, K.T. Oslin, Kendrick Lemar, KISS, Lil Troy, Little Big Town,  Little Milton, LSG, Luke Bryan, Maroon 5, Muddy Waters, Nikki Minaj, Ohio Players, Rihanna, Ronnie Dunn Selna Gomez, Shakira, Sia, Sugar Land, Stevie Ray Vaughn, Teddy Pendergrass, Tove Lo, Whitney Houston, Young Jeezy. Just to give you some idea.

I like movies and 30-minute sitcoms. I love old westerns. “The Rifleman” is my favorite. I like all kinds of movies. And I’m looking forward to seeing some of the movies that came from books I’ve read, especially “North and South” by Joh Jakes, “A Woman of Substance” by Barbara T. Bradford, “A World without End” by Ken Follett, and “The Thornbirds” by Colleen McCoulough. There’s more, but I’m itching to see those. I’m told that the days of the video store are gone and no one had DVD movie collections anymore. Well, I intend to have two things: a video collection of my favorite tv and movies and a spot for my own small library.

Well, that’s it for now. This is where I start in what we’ll call Tim Howard Beginner’s Blog. I deliberately left the prison out, so your questons are fresh. So ask away. Send your questions here.

Tim Howard

p.s. All responses are printed and mailed to Tim – your email addresses not is included.

Not guilty of capital murder, Tim Howard likely to be freed this week

Tim Howard Free

ASHDOWN—After 17 years in isolation, more than 14 of them on death row, Tim Howard will likely be freed this week.

On Friday, seven minutes before midnight, a Little River County jury sentenced Howard to 38 years in prison, after finding him guilty of second-degree murder in the 1997 deaths of both Brian and Shanon Day and guilty of second-degree attempted murder of their infant son, Trevor.

Howard was sentenced to death for those murders at a trial in 1999. A ruling in 2013 that the prosecutor at that trial withheld critical evidence led to the just-ended retrial.

Claiming innocence, Howard rejected a plea agreement that would have sent him to prison for life. At this trial, Prosecuting Attorney Bryan Chesshir urged jurors to give him that sentence.

Instead, after deliberating for nearly six hours, they found him guilty of the lesser charges. Three hours after that, they returned to court to sentence him to a total of 38 years for the crimes.

Howard’s attorney, Patrick Benca, said that Howard would be required to serve half of that sentence—19 years—and that his good prison record would cut that time in half as well.

As a result, Benca said, Howard’s new sentence requires that he serve nine and a half years in prison; seven years less than the time he has already been incarcerated.

Two jurors were seen crying after the guilt phase of the trial, as Circuit Judge Charles Yeargan read them the instructions to consider for sentencing.

Before those deliberations began, the jurors heard from Brian Day’s brother, Kevin Day, who read statements by his brother, David, and nephew, Trevor Day.

Trevor, who is now 17 years old, wrote about wondering what life would be like if his parents were still alive. “I’m just a teenage boy trying to make something great of myself,” Trevor concluded, “so my mom and dad can look down on me and be proud.”

Karley Day, the couple’s daughter, who is now in her early 20s, read her statement personally. She thanked the relatives who raised her and Trevor, spoke of “the scary dreams and scars,” and told jurors that, though she had recently become engaged, she had not yet “found peace” with the murders.

Jurors returned with their sentencing verdicts in the last minutes of the retrial’s tenth day, which had begun at 8:30 a.m.

Security at the courthouse had been heightened all day because a witness who testified the day before reported finding a note threatening his life when he returned to his car.

Closing arguments in the trial began mid-morning.

Al Smith, the district’s deputy prosecutor, reminded jurors that police found the Days’ infant son, Trevor, “in bag like so much trash,” that his mother had been strangled, and his father found at a farm known as Howard’s field, where he’d been shot and had his skull fractured by “some sort of massive force.”

The murders occurred on a Saturday, Dec. 13, 1997. Smith said that both Brian Day and Tim Howard had arranged deals that were to take place the two previous nights. “Thursday night is Brian’s,” Smith said. “Friday is Tim Howard’s night.”

Smith said Howard had stolen drugs that Brian Day had obtained on Thursday night and that Howard killed Brian because of animosities that had arisen between the two.

After the murders, Smith said, Howard threw a pair of boots, one of which had Day’s blood on it, off a road leading to the farm, where they were soon discovered by a passer-by.

After that, Smith said, Howard drove to the Days’ house, where he strangled Shanon Day. “We don’t know what happened at that house,” the prosecutor said, but he added that Howard drove out of state soon after.

“Tim Howard would have to be the most unlucky human being on the planet to be the last human being to see two people right before they were murdered.”

Little Rock attorney Patrick Benca gave the closing argument for Howard. He agreed with Smith that there were two deals planned , but Benca reversed their order. Howard’s deal to sell stolen tires was Thursday,” Benca said. “Brian’s deal was Friday.”

Reminding jurors about testimony that Brian Day was dealing methamphetamine with several people, including some from Oklahoma, Benca told jurors that the investigation of the murders had been bungled from the start.

He pointed out that police produced no photos of the shed from which they claim Howard stole Day’s drugs; that the crime scenes were not properly handled; and that key items of evidence such as the murder weapon, Shanon’s purse, Brian’s keys and the cash said to have been made from the deals never were located.

“Everything’s gone and hasn’t been found,” he said, “but what is found is a pair of boots. So the state wants you to think he’s smart enough to get rid of just about everything else, but dumb enough to whip out a pair of boots and leave them there for everyone to find.”

Benca pointed out that the only gun sent to the state crime lab from this case was one to which Howard was believed to have had access, while the weapons of several other potential suspects were never tested.

“There were a lot of people out there who had motive in this case that were never looked into,” Benca said. “They were ignored. Totally ignored.”

Benca reminded jurors that Howard was described throughout the trial as a close friend of Brian and Shanon Day and that he was present at the hospital when Trevor was born. He said the idea that, seven months later, he would kill the couple and attempt to kill Trevor, “doesn’t make sense.”

Prosecuting Attorney Bryan Chesshir said in response that Howard had several possible motives for murdering Brian Day. Using a projector he listed for the jury: money, drugs, a dispute over a gun and an alleged affair with Shanon Day.

“We can’t tell you exactly what it was,” Chesshir said. “It could have been a combination of any or all.”

He asked the jurors to give Howard the harshest sentences possible. Instead, they acknowledged the gravity of the crime while, essentially, freeing Howard.

As Tim Howard trial nears, defense team claims prosecutor abusing power

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.

Bryan Chesshir

Tim Howard Trial Prosecuting Attorney Bryan Chesshir

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.”

Update: Max Brantley has witten about this at the Arkansas Times.

Tim Howard trial delayed; Judge fumes over evidence issues

George 'Birc' Moreledge, Tim Howard and Patrick Benca

Tim Howard with attorneys George ‘Birc’ Moreledge (left) and Patrick Benca (right)

Tuesday, an Arkansas circuit judge ordered the Tim Howard trial delayed on charges of murder because a key witness will be unavailable the week of March 2, when the new trial was to begin. It is now scheduled to start on April 23.

At Tuesday’s hearing, Circuit Judge Charles Yeargan denied a motion by Howard’s attorneys to dismiss the charges against Howard. Defense attorney Patrick Benca had argued that, because the prosecutor failed to provide several “important” pieces of evidence as required, it will be impossible for the new trial to be fair.

When Prosecuting Attorney Bryan Chesshir acknowledged that several items of evidence sought by Benca could not be provided, Yeargan interjected:

“It’s frustrating for me to sit here and listen to all this. 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.”

When Yeargan acknowledged that the situation was probably frustrating for the attorneys as well, Howard, who has been jailed for the past 17 years and who has thus far sat quietly throughout every proceeding, spoke up. “It’s frustrating for me!” he said.

Yeargan admonished him to let his attorneys do the talking.

Finally, Yeargan dismissed Howard’s argument that he is being subjected to double jeopardy because he was tried unfairly once and now faces the prospect of an unfair second trial because of “continuing” misconduct by state officials. That issue, the judge said, was for a court higher than his to decide.

Before the hearing began, sheriff’s deputies served me with a subpoena, ordering that I appear at the trial and bring “all notes and recordings, both audio and visual”—presumably of my interviews with Howard. I told Chesshir I would not comply.

He has listed me as a prosecution witness, despite my acknowledged friendship with Howard. When asked whether that would bar me from the courtroom, making it impossible for me to report on the trial, Chesshir said that “at this time” he thought he would allow me to attend.

The conduct of prosecutors in this case has been at issue for years. A finding of prosecutor misconduct led Yeargan to vacate Howard’s original conviction and death sentence, handed down in 1999. And complaints about misconduct by Chesshir since Howard was granted a new trial have dominated recent hearings.

Patrick Benca and Tim Howard

Patrick Benca and Tim Howard

Yeargan has heard it all.

He officiated at Howard’s first trial in 1999. Fourteen years later, in 2013, it was he who vacated Howard’s conviction and death sentence.

Yeargan took that unusual step after finding that Tom Cooper, the prosecutor at the original trial, had not provided Howard’s public defenders with notes about DNA the state presented as evidence.

At Howard’s original trial, Cooper told jurors that DNA found on a pair of boots was of “monumental” importance in linking Howard to the murders. Years later, however, attorneys appealing Howard’s death sentence learned that the technician who tested the DNA had made notes about contamination that had occurred while the tests were being conducted.

Those notes were never provided to Howard’s defense counsel. Even when their existence became known, the Arkansas Attorney General’s Office resisted releasing them for years.

A court finally ordered state officials to surrender the notes. Once they were obtained, Howard’s attorneys took his claim of prosecutor misconduct to the state supreme court. That court eventually sent the case back to Yeargan for review.

Yeargan concluded that Cooper’s failure to provide the lab notes to Howard’s attorneys had been “inadvertent.” Nevertheless, he ruled that, as the violation did constitute misconduct, Howard’s conviction would be vacated and a new trial granted.

At that point, Howard officially became an innocent man, a man never convicted of a crime. Chesshir could have declined to charge Howard again—a decision that might not seem outrageous in light of the fact that when Howard filed the direct appeal of his sentence, three of the state’s seven supreme court justices wrote that they found the evidence presented by Cooper insufficient to sustain a conviction.

But Chesshir chose to charge Howard with the murders again. He now has the burden of proving Howard’s guilt.

Among the items of evidence that Howard’s attorneys said have not been provided and that Chesshir said cannot be found are:

  • A tape recording of a witness made at Millwood Lake by Sheriff Danny Russell and Arkansas State Police Investigator Hays McWhirter
  • Russell’s interview notes of another witness who said the sheriff questioned him
  • A report by a state Game and Fish officer who assisted at the scene where Brian Day’s body was found in a U-Haul truck and later at the Days’ home, where Shannon Day’s body was found in a closet
  • The coroner’s report for Shannon Day
  • X-rays that were taken of Brian Day’s body
  • Photos that were taken of the Brian Day crime scene by Jim Williamson, a reporter for the Texarkana Gazette who at the time was also an auxiliary police officer. See below.

Texarkana reporter assisted police in Tim Howard case

The headline in today’s Texarkana Gazette, above an article by reporter Jim Williamson, reads: “Second trial on hold for convicted killer.

There are at least three problems with that.

The first, as noted in the accompanying article, is that Howard is no longer a “convicted killer.” When Judge CharlesYeargan vacated Howard’s conviction in 2013, he rendered it void. Legally, Howard became an innocent man; he ceased being a “convicted killer.”

The second problem is that this grossly inaccurate headline appeared in the biggest paper in the region where Howard’s retrial is to take place. It may complicate seating a jury.

The third—and perhaps biggest—problem is that Williamson may have an unacknowledged conflict of interest. (I acknowledge mine.)

Howard’s attorneys believe that Williamson may have assisted police at the time of the murders.

In his motion alleging prosecutor misconduct, Patrick Benca described photos of the site where Brian Day’s body was found that Benca says the prosecutor has not provided. The motion notes that Investigator Hays McWhirter testified that he took the photos.

“However,” the motion says, “the defense has learned that to not be accurate.”

Rather, Benca wrote, “Jim Williamson, who at the time owned part of the Ashdown newspaper and was an auxiliary police officer, took photographs of the scene as well. It was common for Williamson to take pictures of crime scenes back then because he had better photography equipment and access to a dark room.”

At Tuesday’s hearing, Benca told the court that Williamson had provided defense attorneys with negatives of photos of the crime scene they had never seen before. Benca also quoted Williamson as saying that, after he shot the photos, “he was asked to ‘develop these asap.’”


Testy session points to hard-hitting retrial of Tim Howard

Retrial of Tim Howard, February 13, 2015

Tim Howard retrial

The chance of a new death sentence for Tim Howard was taken “off the table” today as the judge and attorneys on both sides prepared for the retrial of Tim Howard on charges of murdering a man and woman in Little River County in 1997.

Howard spent 14 years on death row before a court granted him a new trial in October 2013 after finding that the prosecutor at his original trial had failed to disclose potentially exculpatory evidence.

At a pretrial hearing in Ashdown this morning, Circuit Judge Charles Yeargan accepted Prosecuting Attorney Bryan Chesshir’s decision to seek a sentence of life without parole for Howard at his new trial, which will start Mar. 2.

Earlier today, Howard’s lead attorney, Patrick Benca of Little Rock, submitted to the court a motion to dismiss the case entirely, due to what Benca called “further violations” of the state’s duty to disclose “exculpatory and/or potentially exculpatory information.”

For example, Benca noted in his motion that, though his team has sought for more than a year to examine the panties and sweat pants worn by the female victim, those items were said to have been lost until, “They were finally located on January 28, 2015, in the evidence storage room of the Ashdown Police Department.”

Retrial of Tim Howard, with Attorney Patrick Benca

Tim Howard with Attorney Patrick Benca

Another “newly discovered” item Benca cited was a document that mentioned a 911 call made to the Sheriff’s Office about the murdered woman before her body was discovered.

The motion claims that, although Chesshir told defense attorneys “that 911 did not exist in December of 1997,” the newly discovered report was dated Dec. 13 of that year. “To date,” the motion said, “no 911 tape has been turned over to the defense.”

In total, Howard’s attorneys listed 13 items of evidence, including the coroner’s report for one victim and X-rays of the other, that they say the state is required to provide but has not.

Benca argued in his motion that, because of the “misconduct done by the prosecution before, during and after the original trial, and since Mr. Howard has been granted a new trial,” Howard cannot receive a fair trial and the charges against him should be dismissed.

Judge Yeargan scheduled another hearing for Feb. 24 to hear arguments on the 21-page motion to dismiss.

Prosecutor Bryan Chesshir

Prosecutor Bryan Chesshir

Earlier this week, Chesshir filed a motion to compel Howard’s attorneys to provide the state with the names, addresses and phone numbers of witnesses the defense intend to call “and all written or recorded statements made by these persons and a brief narrative of each witnesses [sic] testimony.”

Benca responded that the names and addresses would be provided today. The rest of what Chesshir wanted, he wrote, was not legally required.

Voices rose and the discussion before the bench became agitated this morning, as attorneys for Howard and the state debated what must and need not be provided and what should and should not be introduced at trial. At one point, Yeargan interrupted them to shout: “Alright! Stop!”

He called a recess and instructed the attorneys to “calm down,” which they did. Howard sat alert and quiet, taking notes throughout.

Tim Howard Motion To Dismiss February 13, 2015 (21 pages)

Tim Howard Motion To Dismiss February 13, 2015 (21 pages)






Victim pleads for Rolf Kaestel release; Beebe still says no

Rolf Kaestel

Rolf Kaestel in an ADC file photo

Gov. Mike Beebe will not issue a last-minute pardon for Rolf Kaestel, who has served 33 years of a life for a $264 robbery, despite two parole boards’ recommendations that Kaestel be released and pleas on Kaestel’s behalf from the man he robbed.

Kaestel robbed Senor Bob’s Taco Hut in Fort Smith in 1981, armed with a toy water pistol. Dennis Schluterman, who was manning the place, handed over the cash. He said Kaestel never threatened him.

In short order, a Fort Smith jury sentenced Kaestel to life in prison. Last year Kaestel petitioned Beebe for a pardon.

Schluterman, who said he’d been “shocked” to learn that Kaestel was still in prison decades after the robbery, made an emotional video on his behalf. That went to the governor with Kaestel’s appeal.

Also before the governor were recommendations for Kaestel’s release from parole boards in Arkansas and Utah, where Kaestel has been imprisoned for the past 15 years. But Beebe took no action on Kaestel’s petition in 2013 and his office reiterated this week that he will not reconsider that decision.

Referring to pardons, deputy spokesman Stacey Hall wrote in an email, “When we have issued them, most of them have been to address sentencing actions that seemed excessive… The governor felt that Rolf’s situation did not warrant taking action.”

Schluterman, who had held out hope, took news of the governor’s response “with a heavy heart.” He wrote: “Rolf Kaestel made a big mistake and he’s paid for it with his life.  A fundamental principle to our justice system is that the punishment should fit the crime.  Here that has not been the case.”

Schluterman is familiar with Kaestel’s criminal record before the Fort Smith robbery. By age 30, Kaestel had racked up a string of thefts, though none violent. Last August, Colby Frazier of the Salt Lake City Weekly, outlined that background well in an article titled “Invisible Man”.

The paper had taken an interest in why Arkansas officials were paying $28,000 a year to imprison Kaestel in Utah, where he has been held since 1999. Frazier wrote that Kaestel, who’s now 63, had been moved under an interstate agreement because of “noncompliance with the Arkansas system.” Yet, Frazier reported, “Explanations of what this means, and what Kaestel may have done to earn his noncompliance status, do not exist.”

Kelly Duda, a Little Rock filmmaker, believes that part of Arkansas’s problem with Kaestel—and part of the reason he won’t be released—stems from Kaestel’s willingness to speak on-camera for Duda’s documentary Factor 8: The Arkansas Prison Blood Scandal, about the practice that existed from 1967 to 1994 of selling prisoners’ plasma. The film explores the spread of hepatitis C through that much-criticized but long-running program.

Duda, who filmed Schluterman’s appeal, also supports Kaestel’s release. Contacted for this article, he wrote: “You’ve got to ask yourself at this point is it retributive justice that’s taking place here or revenge?  And at a certain point has an injustice occurred? I believe that it has.

“If Mr. Kaestel had pulled out his water pistol and squirted Mr. Shluterman in the face with it, he still wouldn’t have deserved a life without parole sentence. Looking back on it from a 2014 perspective, that’s just ridiculous.  The man has given up more than 33 years of his life behind bars for $264.”

I share the concern that Kaestel is being punished because of his contacts with media about episodes embarrassing to the Arkansas Department of Correction. My own correspondence with Kaestel dates back to 1992, when he was describing perceived security risks in the prisons.

On Oct. 3, 1999, inmate Kenneth Williams escaped from the Cummins Unit and, later that day, killed a man who lived in Grady, 16 miles away. Five days later, on Oct. 8, Kaestel sent me a letter in which he outlined explanations for the escape that contradicted those offered by prison department officials. Before that year was out, Kaestel was moved to Utah.

In a recent letter to Gov. Beebe, I too supported Kaestel’s bid for parole. We see now that he is determined to let Kaestel’s $264-life-sentence stand, though he has not said why.

Quiz for Dustin McDaniel

Attorney General Dustin McDanielIn light of the state attorney general’s recent, successful arguments against paying Gyronne Buckley the $460,000 that the Arkansas State Claims Commission said Buckley deserved because he’d spent more than 11 years in prison due to a conviction obtained by bad behavior on the part of state officials, we think an exercise parsing Dustin McDaniel’s logic may help him think a bit straighter.

1. As you have never been convicted of a crime, when you get out of bed in the morning, are you guilty?

Careful. We know you’re our state’s top prosecutor and that “could be” jumps right to mind. But remember you represent the law and this is a legal question. We suggest “no” for the right answer.

2. If a police officer looks at you but concludes you’ve done nothing wrong, did you get off on a “technicality”?

Slippery question, we know. Hint: the answer is “no.”

Ford ‘Failed’ Old Woman

Paul Ford Dark SpellDARK SPELL raises significant questions about what Jason Baldwin’s attorney, Paul Ford, did—and did not do—at Jason’s trial. Why, for instance, did Ford fail to call ANY of Jason’s alibi witnesses? Yesterday I found this:

Last year, the Arkansas Supreme Court Committee on Professional Conduct, issued Ford a caution, its mildest form of rebuke, for failing to investigate a client’s claim of medical malpractice. Because of Ford’s inaction, the statute of limitations on the client’s claim expired and she was left unable to pursue her intended lawsuit.

According to court records, Dorotha Finnie contacted Ford in January 2011, claiming that treatment for an earache by an emergency room doctor had left her deaf in one ear. Ford agreed to investigate and to take her case if he believed it was viable. If he chose not take her case, he was to notify her.

Finnie reportedly heard nothing more from Ford for the next two years. As the supreme court’s office noted: “After her initial consultation with Ford, Finnie called and visited his office numerous times but was told by a secretary that Ford was not available to speak with her. Ford also failed to return Finnie’s phone calls.”

Finnie filed a grievance with the court’s Office of Professional Conduct on Jan. 7, 2013. When that office contacted Ford, he responded that he had decided not to proceed with Finnie’s case. Ford responded in writing:

“It is my recollection that I discussed this decision with Ms. Finnie by phone. However, I cannot confirm this. It is my usual practice to discuss these matters with the client by phone, or in person, and then confirm the decision in writing. Sadly, there is no letter in my file to confirm the recollection of the phone call.”

Ford also acknowledged that, when he looked into the matter, he realized that the two-year statute of limitations had run on Finnie’s claim. He said that he had intended to inform her of this. “It was also my intention,” he wrote, “to advise her that I had malpractice coverage and that she should seek independent legal counsel on this matter.”

A supreme court committee found that, in his handling of Finnie’s case, Ford had violated three of the court’s Rules of Professional Conduct; failing to competently represent her, failing to act with reasonable diligence, and failing to inform her that he would not file suit on her behalf, with the result that, “the statute of limitations expired on Finnie’s potential claim.”

For this, on Sept. 25, 2013, the Committee on Professional Conduct ordered that Ford be “cautioned for his conduct in this matter and assessed $50 in costs.”

Reached by phone, Finnie, who is now 78, said she could not understand why Ford would never talk to her. She said that when she’d gone to his office, his staff told her “that everything looked good, everything was going fine.”

She said she’d filed her complaint with the supreme court because it was all she knew to do and that last year she received a phone call reporting the committee’s decision. “They said it had gone to the supreme court and it would cost him $50 and it was over.”

Asked how she felt about the fine, Finnie, a retired Walmart employee, laughed. “Isn’t that something?” she said. “I don’t feel like he even missed that $50.”