The case for killing Tim Howard, part 3

*The purse, boots, gun, etc. *

As for statements that Howard had been seen with Shannon’s purse and later disposed of it, Hannah wrote: “His disposal could mean he wanted to dispose of evidence that he had murdered her–or that he did not want to be caught with the purse, given that someone else had killed her.”
Turning to the boots, Hannah noted that, while the majority had interpreted the trial record to read that “a Negroid hair” in one of the boots had been found to be “compatible with Howard’s DNA,” Hannah’s read the testimony to say that the hair had been described only as having been only “microscopically similar to Howard’s.”
The difference could be significant, especially since, as Hannah noted, “Other Caucasian hairs were found in the boots that were never identified.”
Hannah was also concerned about the location and position of the boots, standing side-by-side in plain view from a highway. Noting the prosecutor’s claim that Howard had thrown them from the car as he he’d passed, Hannah dryly observed, “If the state’s argument were correct, this would have been a pretty remarkable throw.”
Hannah continued: “Also, Howard was wearing the same clothes on Saturday morning as he had been wearing the night before. There was no blood on them. If he had worn the boots, the blood would have been on his pants leg.”
Hannah noted that police found “no bruises or other marks” when they questioned Howard the day after the murders, even though there was evidence that Shannon had put up a fight and that, in Hannah’s words, Brian was known to have been “a fellow who did not back down.”
And what about the gun? Hannah noted that Brian was shot with a .38 and that Howard had been seen with a .38 shortly before the murders. But Hannah questioned the significance of the gun, given that something dangerous was expected to happen and that, as Hannah wrote, “there is probably not a more common caliber than .38.”
The prosecutor had put forth two theories for why Howard had killed the Days. One was that Howard had wanted to collect all of the money from the scheduled drug deal, not just the $4,500 he reportedly was to have gotten.
The other theory was that Howard had murdered the Days because he believed he’d gotten Shannon Day pregnant.
Neither made much sense to Hannah. Moreover, he argued that the testimony about Shannon’s alleged pregnancy had been both unsubstantiated and so tenuous that it should not have been admitted into the trial.
Doctors who performed the autopsy on Shannon’s body concluded that, in fact, she was not pregnant when she was murdered. And even if she had been, Hannah observed, there’d been no testimony at the trial that Howard had ever been told she was.
Hannah believed the prosecutor wanted the jury to hear the unsupported claim merely to increase its outrage, and that, when Howard’s attorney’s objected, Circuit Judge Charles A. Yeargan should have agreed with them.
But Yeargan did not agree, and as a result, Hannah wrote, “An Aftican-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….”
Nor was Hannah convinced that the money Howard spent on the weekend of the murders constituted what Justice Arnold had called “large amounts of cash.” Hannah pointed out that Howard had spent only “a few hundred dollars” that weekend on the toolbox and motel rooms and that no sizeable stash of money had ever been connected to him.
Justice Hannah concluded, “The persons with whom Brian met on the night of the murders had a great deal more to gain from the murders and assault, either by making him an example of what happens when a person does not meet his obligations, or in gaining Brian’s ‘white’ and keeping their ‘green.’”

*‘The realm of fantasy’ *

Two other aspects of the case disturbed Hannah enough that he added them to his dissent. One was the prosecutor’s decision to show the jury a pair of fur-covered handcuffs.
Jennifer Qualls had testified that she once saw a pair of fur-covered handcuffs in Howard’s possession. Investigators never found those cuffs, and the handcuffs found on Brian and Shannon Day were ordinary metal ones.
There was no sign of glue on the handcuffs that were found on the Days’ bodies–nothing that would indicate that the cuffs had once been covered with fur. And there was no testimony that Howard had ever owned more than one pair of handcuffs.
Nonetheless, the prosecutor had gone to a local lingerie store, purchased a pair of fur-covered handcuffs and introduced them at the trial, explaining that they were “identical” to the pair that Howard was said to have owned. Howard’s attorney objected, arguing that the newly purchased handcuffs were just props for the prosecution and had no connection to the case, but Judge Yeargan sided with the prosecution.
So did the supreme court’s majority. But Hannah wrote that the judge’s decision was an error–and one serious enough that it warranted granting Howard a new trial.
Finally, Hannah attacked the prosecutor’ closing argument, in which he’d told the jury how “probably the most horrible thing that happened that night” was that, as Shannon Day died, she had been forced to watch “her seven-month old child being strangled in front of her.” The prosecutor had urged the jury to consider that image while deciding whether Howard should be sentenced to death.
That statement would have been fine, Hannah wrote, if what the prosecutor described was known to have actually occurred. As it was, Hannah argued, “The prosecutor entered the realm of fantasy.”
He explained, “While there is no question Trevor was strangled, there are no facts which would support any inference that he was hanged, or that he was hanged before his mother’s eyes. The closing argument was based on pure fiction.”
Noting that “the child was not even found in the same room as Shannon’s body,” and that “there was no evidence to show” who’d been assaulted first, “or for that matter, where within the home the assaults occurred,” Hannah concluded: “This was not evidence. It was pure speculation and conjecture.”
Rejecting the majority’s opinion that the issue was insignificant, he continued, “The state’s attorney was not going beyond the record to argue evidence that he thought should have been admitted. Instead, he testified to fictional facts. This is a serious problem that calls the very legitimacy of the trial into question.”
In the end, Hannah concluded that the opinion written by Arnold “stretches and reaches to assert
unsupported conclusions.”
He wrote, “In large part, this is so because in the [majority’s] analysis, the lives of Howard, Brian, Shannon, and Trevor Day are deftly lifted and separated from a virtual cesspool of crime teeming with any number of vermin who quite likely had both cause and motive to harm Shannon and Brian, as well as Howard and others.
“In this way, Howard and the Days can be viewed in isolation, and therefore the facts are not too difficult.
“However, if this case is viewed as it ought to be, the record we have received is hopelessly complicated, and to dive into the facts of all the witnesses is to nearly drown in a nether world of any number of threats, of drug dealers dealing one drug for another, of trips to other states to view other drug operations, of mysterious unidentified out-of-state drug dealers, of such fear among witnesses that they are careful not to be seen by anyone talking to the police.”
Far from supporting the verdict that Howard was guilty, Hannah concluded that the evidence presented by the state pointed clearly to no particular killer. “The most reasonable hypothesis that the evidence will support,” Justice Hannah wrote, “is that Brian was trying to do a deal with those to whom he was deeply indebted, and it went bad.”
. . .
In light of the extreme penalty Howard faces–death–and the extreme differences that arose among the justices who reviewed his case, Tim Howard’s lawyers have asked the court to look at his appeal again. As of this writing, the court had announced no decision on Howard’s petition for a rehearing. (End of Part 3.)

The case for killing Tim Howard, part 2

‘Horrible, horrible’

Normally, prosecutors in murder cases do not seek the death penalty. That most severe punishment is reserved for crimes of an especially heinous nature, such as those that appear to have been committed with exceptional cruelty.
When Howard’s case went to trial in December 1999, two years after the crime, prosecuting attorney Tom Cooper asked the jury to hand down two sentences of death. He said the brutality of the crime demanded it.
Howard’s public defender, Mac Carter, argued that the state had presented no evidence that connected Howard to either of the deaths.
He pointed out that it was not surprising that his fingerprints would have been found on U-Haul truck since Howard had rented it with Day and driven it.
Since Howard was also known to be a close friend of the Days, he said it was surprising that his client’s fingerprints would have been found on a soft drink bottle inside their house.
In addition, he offered evidence that Brian Day had been planning to conduct a dangerous deal with drug dealers from Oklahoma, and that many people, including Howard, knew that something was risky was in the works.
As for the boots, Carter pointed out that no explanation ever was offered for the footprints that led away from them into the woods. He also argued that it was unlikely that someone who had just killed a man would deliberately leave such evidence in broad sight near a road, where it could be so easily discovered.
Rather than pointing to Howard, Carter argued that the boots suggested that someone else had attempted to implicate him.
Though the prosecution emphasized Howard’s purchase of the toolbox, Carter stressed that there no evidence linking it to the murders, and it was too small to have hidden a body.
But the prosecutor countered that the sum of Howard’s actions were enough for the jury to find him guilty. And in his closing argument, Cooper reflected dramatically on the moments just before Shannon Day’s death.
He told the jurors that “probably the most horrible, horrible thing that happened in this case probably the most horrible thing that happened that night, was that she watched her seven-month old child being strangled in front of her.”
“I submit to you, ladies and gentleman, the last thing, the last thing that Shannon Day saw before she died was her seven-month old baby hanging from an extension cord. That’s how she left this world.”
The jury quickly found Howard guilty and sentenced him twice to death.

‘Inappropriate’ behavior

It took two and a half years for Howard’s appeal to reach the state supreme court. There, four justices–Chief Justice Amold, associate justices Annabelle Clinton Imber and Tom Glaze and Special Justice Mike Kinnard–concluded that the evidence against Howard had been sufficient to warrant his sentence of death. (One of the court’s associate justices, Donald L. Corbin, did not participate in the case because his wife, Dorcy Corbin, had served as one of the court- appointed attorneys who’d worked on Howard’s appeal.) In affirming Howard’s conviction, Justice Arnold outlined the “physical evidence” he said pointed to Howard’s guilt. It included: –Howard’s fingerprints on the U Haul truck; –the truck’s location on Howard’s family farm; –the boots with “Brian Day’s blood on one of them and a Negroid hair compatible with Howard’s DNA” inside the other; –the fact that the boots “were the same size and type that Vicki Howard testified Howard may have been wearing the day before;” –and the “fingerprints on a Mountain Dew bottle” in the house where Shannon’s body was found. Arnold also noted the “circumstantial evidence” that he felt reinforced the jury’s finding of guilt. This included testimony that: –Howard was said to have visited the farm shortly before the murders; –he was seen with a .38 caliber handgun and driving the U-Haul truck on the day before the bodies were found; –he had “appeared agitated” when Qualls met him at the rest stop; –he had been “handing out large amounts of cash” for the toolbox and various motel rooms; –he reportedly had said that the Days were hiding out and that only he knew where they were; –he was “the last person seen with Shannon and Trevor Day;” –Shannon Day suspected “that she was pregnant with Howard’s child;” –he had fled the state upon learning of Brian Day’s murder; –and finally, that he had “sought to control the information that Jennifer Qualls gave to the police.” No single item placed Howard with either of the Days at the times that they were killed. Justice Arnold addressed that problem by noting, apparently to his satisfaction, that, “the most incriminating evidence against Howard was his inappropriate and unexplainable behavior both before and after the discovery of the crime.” It is common for lawyers to argue on appeal that the evidence used against their clients was not sufficient to support a verdict of guilt. It is equally common for the state’s appellate court justices to summarily reject that claim. That is partly because the justices who sit on the state’s high courts are reluctant to second-guess a jury’s verdict. Claims that the evidence was insufficient are also hard to win because the law allows for verdicts to be viewed in the light most favorable to the state. Thus, attorneys who argue insufficiency face an extremely high hurdle. One veteran Arkansas court-watcher could not recall a case in the past ten years when even one justice had agreed with a defense claim that the evidence had been insufficient. In Howard’s case, however, not one but three of the Supreme Court justices reached that remarkable conclusion. Each wrote a scathing dissent.

“It appears that 70 years of precedent is, being abandoned.”
– Justice Jim Hannah

Justice Robert L. Brown expressed concern about the almost total lack of evidence linking Howard to Shannon Day’s murder. He noted evidence that Arnold and other members of the court’s majority had discounted in their opinion, including that “Shannon Day’s body was found under picture frames with unidentified fingerprints on them.”
While the majority made much of the fact that Howard’s fingerprints had been found on a bottle of Mountain Dew inside the Day’s home, Brown observed that the unidentified prints on the picture frames found on top of Shannon’s body were “much more likely to have come from the perpetrator of Shannon’s murder….”
Calling the evidence against Howard “circumstantial” and “extremely weak,” Justice Brown wrote bluntly:
“The proof implicating Howard in Shannon’s murder is paper thin. The majority, in fact, says as much when it states that it is relying on Howard’s ‘inappropriate and unexplainable behavior’ as the most incriminating evidence against him. Inappropriate and unexplainable behavior, in my mind, is not forceful….”
Justice Ray Thornton agreed. Thornton added, “I also believe that the evidence to support a conviction for the murder of Brian Day was very thin.”
Moreover, Thornton wrote, “In my view, even if the minimal amount of evidence is barely sufficient to present the fact question to the jury, the case is deeply flawed by prejudicial errors and I must conclude that a new trial should be ordered.”
The most blistering objections, however, were raised by Justice Jim Hannah. In a 22-page dissent, Hannah argued that none of what Arnold had cited as “physical evidence” of Howard’s guilt–not his fingerprints at either scene or even the controversial boots–directly linked Howard to the murders.
Noting instead that “this case was based entirely on circumstantial evidence,” Hannah reminded the court of the law, laid down in 1932, which dictated the conditions that had to be met for circumstantial evidence to be considered sufficient.
Quoting the law, Hannah wrote, “The circumstances relied on must be so connected and cogent as to show guilt to a moral certainty.” Moreover, those circumstances “must exclude every other reasonable hypothesis than that of the guilt of the accused.”
In Howard’s case, Hannah wrote, the circumstances did not exclude every other reasonable hypothesis and thus they did not show that Howard was guilty beyond a reasonable doubt.
“It appears,” Hannah wrote, “that 70 years of precedent is being abandoned.”

‘Unidentified persons’

Hannah cited prior rulings, handed down by the supreme court itself, which required that the evidence against a defendant be strong enough that jurors would not have to speculate to reach a finding of guilt.
Brown had observed in his dissent that, “What is notable about this case is what is not known. Various pieces of the puzzle are missing, and we are forced to engage in speculation to fill the gaps.”
Hannah elaborated on that concern. Noting that jurors at Howard’s trial had been presented with at least two “reasonable hypotheses”as to who might have killed the Days, he concluded they had been forced to speculate.
Then, like Arnold, he examined the evidence from Howard’s trial. But, unlike Arnold and the majority, Hannah saw a very different picture.
First, he acknowledged that it was reasonable to have considered Howard a suspect. But, Hannah added, other evidence “tended to incriminate others with whom Brian was making a drug deal.” Citing evidence that the majority on the court had discounted, Justice Hannah explained:
“Evidence was presented that Brian was deeply in debt, that he and his wife feared for their lives, that he had set up a drug deal that took place about the time of the murders at the place where his body was found, that a substantial sum of money was involved, that he was to receive something that required a truck to haul, and that in the days before his murder he had been in confrontation with unidentified persons, who were apparently the persons he met the night of his murder.” Addressing the matter of motive, Hannah noted that the trial record failed to show “that Brian owed Howard money or that Howard showed up with a substantial sum after the murders.
“What the record does reveal is that Brian owed other people money, and that people were mad. He was trying to gather up cash from his users or from anywhere he could get it.”
Among the points Hannah addressed, which the majority had ignored, was testimony that Shannon Day had told one witness shortly before the murders that “she did not know what Brian was doing with the money but they were going to kill him.”
Hannah wrote, “Shannon also told a friend that if anything happened to her it would be because of Chicken,” who was identified as one of Brian’s suppliers.
A male witness testified that a week before the murders, he’d overheard Brian tell an unknown white man who’d come to his house, “I don’t have that kind of money.”
Two witnesses testified that Shannon had told them she feared for her family’s safety because, “Brian owed everybody money and Brian was in over his head.”
When Brian’s father was notified of his son’s death, he told the police, “I knew this was going to happen.”
Hannah wrote, “There was testimony that in the past Howard and Brian had done their deals together, but this time Brian had set up his own deal, and although Howard was helping him indirectly, Howard did not know who Brian was dealing with.”
Another witness testified that on the Tuesday before the murders, she had seen Brian Day outside his home arguing with two white men.
“There is abundant evidence that all of these people were nervous about something that has never been revealed,” Hannah wrote. “The evidence does put someone at the Howard farm with Brian the night he was killed,” but, he added, “It does not put Howard there.” (End of Part 2.)

The case for killing Tim Howard

_Note: A few readers have recently learned about Timothy Howard, another person awaiting execution on Arkansas’s Death Row. I wrote about Howard’s case for the Arkansas Times in 2002 and remain in touch with him. I believe that, like Damien Echols, he is innocent. I also see disturbing similarities between his case and that of the WM3. Since this article appeared, Howard’s case has moved to the federal district court for the eastern district of Arkansas, where he is awaiting an evidentiary hearing on his federal petition for a writ of habeas corpus before Judge Brian S. Miller. For anyone interested, here, in four parts, is that 2002 story._

The most incriminating evidence against Howard was his inappropriate and unexplainable behavior.”
–Arkansas Supreme Court, May 9, 2002

Tim Howard was an anomaly in southeast Arkansas: a black man who socialized mainly with whites. He married a white woman. He had affairs with white women. The people he dealt drugs with were white. His closest friends, Brian and Shannon Day, were white.
On Saturday, Dec. 13, 1997, an anonymous caller notified the sheriff s office for Little River County that blood was dripping out of a U-Haul rental truck parked on Howard’s property.
Police drove to the scene, a farm in the tiny town of Ogden (pop. 126), about three miles from the Texas border and 20 miles from the border with Oklahoma.
After breaking the padlock on the truck, deputies found the body of Brian Day. He’d been beaten severely and shot in the head with a .38 caliber bullet.
When officers drove to the Days’ home to inform Shannon Day of her husband’s murder, they found her dead as well. Shannon’s body was slumped in a bedroom closet, covered with various items, including a mattress and some picture frames.
Trevor Day, the couple’s seven-month-old son, was found in a zipped bag in another room, beneath a pile of clothes. A cord was tied around the baby’s neck, but he was alive.
Four days later, police arrested Timothy Lamont Howard, a 28-year-old with no prior convictions. They charged him with the Days’ murders and with the attempted murder of young Trevor.
Two years passed before Howard’s case went to trial, but when it did, in December 1999, a jury quickly found Howard guilty. It sentenced him to death for each of the Days’ murders and to an added thirty years in prison for the attempted murder of their child.
Three months ago, in May, the Arkansas Supreme Court affirmed Howard’s conviction. But the court was more deeply divided than it has ever been on a case involving the death penalty. Four justices ruled that the evidence showed Howard was guilty. Three others issued strenuous dissents, arguing that the evidence in now way supported the verdict.
Here’s how the justices saw Howard’s case, based on the trial court’s record. First, the majority’s opinion—the case for executing Tim Howard.

“We affirm the trial court on all points and Howard’s judgment of conviction.”
–Chief Justice W.H. “Dub” Arnold

Acting ‘weird’
W.H. “Dub” Arnold, the Arkansas Supreme Court’s chief justice, wrote the majority opinion, which found that Howard’s trial had been fair.
To explain how the high court reached its conclusion, Arnold outlined Howard’s activities, both before and after the bodies were discovered, based on what witnesses had said at his trial.
Taken together, the statements show that Howard went to several places and interacted with several people within a two- or three-day period around the time of the murders. Though the description of his activities is a bit dizzying, it never places Howard at the scene of the crime at the time the murders occurred.
Nonetheless, the jury at Howard’s trial–and the majority on the supreme court–found that Howard’s activities appeared suspicious enough to warrant his sentence of death.
Here is Arnold’s description of what the trial revealed:
“Brian Day and Howard sold drugs together.” Arnold also noted that, “Howard had been friends with Brian and Shannon Day for years, and the nature and depth of their friendship was not disputed.”
On Thursday, Dec. 11, 1997, Howard went with Brian Day to rent a U-Haul truck. Howard told three different women that he and Brian had a deal in the works, from which Howard expected to receive $4,500.
One of the women was Howard’s ex-wife Vickie. Though the two had been recently divorced and Tim Howard was dating at least two other women, he and Vickie remained on generally friendly terms. Vickie was also described as a very close friend of the Days.
Arnold noted that, on the morning before the murders, Howard had met Vickie at a restaurant after she left her job on a night shift. During that encounter, “Howard acknowledged to Vicki [sic] that he was upset with the Days because they would not admit to dealing drugs, and they allowed others to believe that Howard was the only person dealing drugs and bringing them to Ashdown.”
Howard also “discouraged Vicki from going on to stay overnight with Brian and Shannon Day because they were in a fight.” Instead, he rented a room for her at a Texarkana motel.
Later that morning, Howard came to the motel driving a U-Haul truck. Several witnesses at Howard’s trial said they understood that the truck was to be used to transport a load of marijuana that Day expected to receive in exchange for a quantity of methamphetamine–an exchange that was characterized at the trial as a trade of “green” for “white.”
Howard reportedly told Vickie “not to tell anyone about the U-Haul because the information would get her killed.”
During the next several hours, Howard was on the move, often with help from his former wife and two other female friends.
Leaving the truck at the motel, Howard asked Vickie to drive him out to his family farm. There she watched as he reportedly entered a small shack, picked something up, and returned to the car.
Vickie then dropped Howard off at the apartment of Kim Jones, one of the women whom he was dating. (Howard and Jones have since married.)
Later that Friday, at around 5 p.m., Howard called Vickie at the motel, asking that she pick him up at Jones’s apartment. Vickie did, and when Howard got into her car, he had a camera bag. Vickie testified he told her that it contained “some stuff to have kinky sex”–items which she said included handcuffs and a rope.
Howard dropped Vickie off at the motel, then drove her car to the local Wal-Mart. When he returned, Vickie testified, he had “a .38 caliber handgun stuck in the front of his pants.”
Justice Arnold noted Vickie’s statement that when Howard left her at the motel room at 9:40 that Friday night, he was wearing “a black sweatshirt, jeans, and she though a pair of boots.”
At about 11 p.m., Howard called another woman with whom he was involved; Kim Jones’s sister, Jennifer Qualls. He asked Qualls to pick him up at a rest stop on Hwy. 71, near the Red River Bridge.
Qualls testified that when she arrived, Howard was acting “weird.” She said Howard got into her car and they drove to her house and went to bed.

‘Identical’ handcuffs
Howard got up at about 1 a.m. Saturday morning, telling Qualls that “he had to go get his money.” He returned about two hours later, woke Qualls and told her that he was leaving Shannon and Trevor Day with her, “while he and Brian went to take care of some business.”
Qualls said that she knew that she saw Shannon and heard the child, but that when she awoke at 6:30 a.m., no one was in the house.
Howard turned up again at about 7:30 a.m. He told Qualls that the Days were hiding out and that he was the only person who knew where they were.
He gave Qualls $200 in cash and told her that he needed a ride back out to the rest stop on Hwy. 71, where Kim Jones’s car had been left.
Justice Arnold observed that, “On the way to the rest stop, Jennifer noticed a woman’s purse and other bags in the back seat of her car. Howard told her that they belonged to Shannon Day.”
Later that morning, Howard bought a large, truck-sized toolbox, for which he paid $140 in cash. He left it in Qualls’s front yard.
By this time, the call had come in to the sheriff’s office that blood was seen dripping from a rental truck on Tim Howard’s farm. The caller was never identified.
When police arrived at the farm, they concluded that Brian had been killed in the shack, and that his body had been dragged to the truck where it was stashed. When officers examined the truck, they found Tim Howard’s fingerprints.
Shortly after police released news of the murders, a local man reported that he had spotted a pair of boots earlier that morning in a clearing alongside a highway, about two miles from the Howards’ farm. The man said he’d passed the spot at about 8:20 a.m., and that the boots were not there at that time, but that when he’d passed that way again, some twenty minutes later, he’d been was startled to see the boots. They were standing side by side, and the man noticed human footprints in the frost, leading into nearby woods.
Justice Arnold wrote that the boots were “the same size and type that Howard’s ex-wife, Vicki Howard, had bought for him and thought she had seen him in the previous day.”
Arnold added that a hair found inone of the boots “matched Howard’s DNA, plus blood on top of the left boot matched Brian Day’s DNA.”
By now, police had also driven to the Days’ home and found Shannon Day’s body.
Arnold noted that her hands “had been handcuffed behind her back with handcuffs that were described at trial by the state as ‘identical’ to the pair that Qualls testified Howard had once purchased from a Texarkana lingerie store.”
Moreover, “there was a ligature around her neck, and there were bruises on her body indicating some sort of struggle.” When detectives searched the house, they found “fingerprints on a Mountain Dew bottle in the living room that were identified as Howard’s.”
By now, news of the murders was now spreading.
Vickie testified that Tim Howard called her at 11 a.m. on the morning the bodies were found. He told her that, as he’d driven towards his farm, he had seen police cars heading in the same direction, and that an ambulance had passed him. He said he’d turned around and gone back to Texarkana, since it appeared that something had gone wrong with Brian’s deal.
Vickie picked Howard up and the two drove to meet Jennifer Qualls.
Qualls testified that, when Howard arrived, he told her that the police had found a dead body inside a U-Haul truck. Arnold noted, “He stated that he was unsure if it was Brian, but he asked Qualls to clean out her car because the police would probably be wanting to talk with her.”
In addition, Arnold noted, “Qualls also testified that Howard asked her if she was going to turn him in,” and that when she asked Howard what had happened to Shannon’s purse, “Howard told her that he had gotten rid of it.”
The three left town and spent the night in Texas. However, they returned to Ashdown the next afternoon and gave statements to the police.
Arnold noted that Qualls said Howard had instructed her “not to say anything about the money.” Arnold also found it significant that, “After Qualls gave the police her statement, Howard asked whether she had said anything about the toolbox.”
Three days later, police arrested Tim Howard. (End of Part 1.)

Texas court did what Burnett’s court would not

Last May, a Collin County court in Texas dismissed capital murder charges against Michael Blair who had been on death row for the 1993 murder of Ashley Estell. After more than a decade of legal appeals and requests for DNA testing, the hair evidence that had been used to convict Blair was shown to be mistaken. The Texas Court of Criminal Appeals found that no reasonable jury would convict Blair based on the existing evidence.

The District Attorney’s office filed a motion to dismiss the charges on August 25, 2007 stating, “It has been determined that this case should be dismissed in the interest of justice so that the offense charged in the indictment can be further investigated.” The Plano Police Department is now reinvestigating the 15-year-old case to find the true killer. The DNA evidence that cleared Blair indicates that another man, now deceased, is a plausible suspect in the girl’s death. Referred to only as “Suspect 4” in court documents, this possible perpetrator showed an obsession with the victim and bought a grave plot as close as he could get next to her resting place. He has been deceased for at least 10 years.

The case was made famous in the mid-1990’s by a series of legal reforms known as “Ashley’s Laws.” Named after the victim Ashley Estell, these laws created longer prison sentences and lifetime sex offender registration requirements.

According to the Death Penalty Information Center’s innocence list, Blair is the fourth person to be exonerated from death row in 2008 and the ninth in Texas since the death penalty was reinstated. His case brings the total number of exonerations from death row to 130 since 1973. Blair remains in prison on other charges.

DPIC’s innocence list consists of those former death row inmates who have been acquitted of all charges related to the crime that placed them on death row, who have had all charges related to the crime that placed them on death row dismissed by the prosecution, or who have been granted a complete pardon based on evidence of innocence.

This dismissal comes on the heels of a statement by Dallas County District Attorney Craig Watkins that he will re-examine nearly 40 death penalty convictions and would halt executions, if necessary, to give the reviews time to proceed. After an exoneration of an innocent man in his first week in office and a total of 19 DNA-based (non-death penalty) exonerations in his county, Watkins wanted to ensure that no innocent people were executed during his tenure. “I don’t want someone to be executed on my watch for something they didn’t do,” explained Watkins. Texas leads the country in executions with 414, including 9 this year.

After the ruling, the Dallas Morning News published the following editorial:

Collin County District Attorney John Roach’s decision yesterday to fold his hand in the 1993 capital murder case against Michael Blair was the right call. But it should chill the blood of anyone who cares about justice and public safety.

First, it means the monster who killed young Ashley Estell more than 14 years ago may very well be on the loose. That’s a terrifying possibility for those who remember the details of how 7-year-old Ashley was plucked from a Plano soccer field and strangled.

Second, the DA’s decision means Mr. Blair could have paid with his life for what appears to be a prosecution that should never have taken place. Hair tests that were crucial in sending him to death row were disproved by more advanced DNA results nearly six years ago. More DNA tests ruled out tissue beneath Ashley’s fingernails and, more recently, failed to establish a link between Mr. Blair and other items.

It would offend the memory of Ashley’s life if opponents of the death penalty – this newspaper included – used this opportunity to gloat about the faults of the justice system and potential for fatal error. After all, supporters of capital punishment will say that the system worked, that the appeals process succeeded in exposing the truth. They must concede, however, that in the absence of new forensic technology, the appeals would likely have accomplished nothing.

Let’s be clear: Mr. Blair is not a sympathetic character. He is a loathsome child molester who is serving consecutive life sentences for sex crimes. He will die in prison, and we’re glad he’s there.

Had he been executed instead, the quest for justice would have cheated an innocent child who met an unspeakably cruel death.

Mr. Roach is to be credited for a vigorous re-investigation of a slaying that inflamed this community like few others. At times his response to setbacks in the case appeared stubborn and grudging. But all parties should appreciate the directness of his statement in which he backed off the case against Mr. Blair.

For Ashley’s family’s sake, we hope there is something to show for Mr. Roach’s assertion that the case remains under investigation.

Lawyers for Echols to take final appeal to Arkansas Supreme Court

Lawyers for Damien Echols will take their appeal to the Arkansas Supreme Court in the wake of a ruling this month by Circuit Judge David Burnett, who ruled that new DNA evidence presented by Echols was insufficient to warrant a new trial. So far, in every appeal in the West Memphis case that has gone before the state’s high court, the justices have unanimously backed Judge Burnett.
(Above: The justices of the Arkansas Supreme Court. Those who ruled on Echols’s appeal in 1996 are Associate Justice Robert L. Brown, second from left; Associate Justice Tom Glaze, third from left; and Justice Donald L. Corbin, fifth from left. Glaze has recently retired.)
In 1996, when the Arkansas Supreme Court affirmed the convictions of Echols and his co-defendent Jason Baldwin, the justices found that the circumstantial against the twowas sufficient to support the verdicts. Now, attorneys for the state will argue that that verdict should stand, despite new laboratory findings that no DNA evidence collected with the bodies could be linked to either Echols, Baldwin, or Jessie Misskelley Jr., the other convicted teenager, although DNA was discovered belonging to the stepfather of one of the victims.
In their 1996 ruling, the justices relied heavily on the theory presented by prosecutors, that the murders were committed as part of a Satanic ritual. Their opinion noted that, “Echols admitted that he has delved deeply into the occult and was familiar with its practices,” and that, “Echols testified that he wore a long black trench coat even when it was warm.”
In that 1996 opinion, the state supreme court also relied heavily on the testimony of Dr. Dale Griffis, a so called “expert in the occult,” although Griffis’s lack of reputable credentials was exposed at the Echols-Baldwin trial. Ignoring Griffis’s own acknowledgement that his “doctorate” had been awarded by a mail-order university, which he never attended, the Arkansas Supreme Court quoted his testimony at length.
In an opinion written by then Associate Justice Robert H. Dudley, the court noted: “Dr. Dale Griffis, an expert in occult killings, testified in the state’s case-in-chief that the killings had the ‘trappings of occultism.’ He testifed that the date of the killings, near a pagan holiday, was significant, as well as the fact that there was a full moon. He stated that young children are often sought for sacrifice because ‘the younger, the more innocent, the better the life force.’ He testified that there were three victims, and the number three had significance in occultism. Also, the victims were all eight years old, and eight is a witcches’ number. He testified that sacrifices are often done near water for a baptism-type rite or just to wash the blood away. The fact that the victims were tied ankle to wrist was significant because this was done to display the genitalia, and the removal of Byers’s testicles was significant because testicles are removed for the semen. He stated that the absence of blood at the scene could be significant because cult members store blood for future services in which they would drink the blood or bathe in it. He testified that the ‘overkill’ or multiple cuts could reflect occult overtones. Dr. Griffis testified that there was significance in injuries to the left side of the victims as distinguished from the right side: People who practice occultism will use the midline theory, drawing straight down through the body. The right side is related to those things synonymous with Christianity, while the left side is that of the practitioners of the Satanic occult. He testified that the clear place on the bank could be consistent with a ceremony. In sum, Dr. Griffis testified there was significant evidence of Satanic ritual killings.”
In that 1996 ruling, the court considered this testimony a significant part of the “substantial evidence” it found proving that Echols was guilty. Now, that same court—though with a substantially different makeup—will be asked to consider whether the new DNA findings that Burnett recently rejected do indeed raise a reasonable probability that Echols did not commit the murders.
The state supreme court will either stand with Burnett again, or break with its history in this case and order a new trial for Echols. In either event, its ruling will mark turning point.

From this week’s Arkansas Times


Arkansas Supreme Court Associate Justice Tom Glaze apparently has decided to retire at the end of 2010. That creates a seat on the court and lawyers have received letters recently that Circuit Judge John Fogleman will be a candidate for the seat. Fogleman, a former prosecutor, lives in Marion and sits on cases in Clay, Craighead, Crittenden, Greene, Mississippi and Poinsett counties.

Judge Fogleman has a bit of history connected with one of Arkansas’s most famous criminal cases.

Fogleman assisted Prosecutor Brent Davis in the prosecution of the West Memphis Three, the then-youths convicted of slaying three West Memphis boys. An appeal of Damien Echols’ conviction and death sentence is still active.

Mara Leveritt, who wrote a book on the case that spawned a widely watched HBO special, thinks prosecutors in that case still should be called to account for a number of decisions. One was the use of a co-defendant’s statement that prosecutors knew was factually inaccurate. Another was Fogleman’s last minute decision to search the lake for weapons, a search that turned up a knife that Fogleman tried to link to the deaths. The supposedly secret lake search just happened to produce a page one photograph for the local newspaper of a diver triumphantly holding a knife aloft. She also is highly critical of the prosecutors’ decision to use a dubious expert witness to inject devil worship in the trial to shore up a lack of solid evidence. Fogleman underscored this in closing arguments by emphasizing such points as Echol’s habit of wearing black clothing. On such evidence, Fogleman told jurors, “You see inside that person. And you look inside and there’s not a soul there.”

Leverett says Fogleman quickly made use of his “tough decisions in tough cases” in campaigning for a circuit judgeship shortly after a second trial of the WM3. She writes, “In the long run, I believe, many of Fogelman’s ‘tough decisions’ will be regarded as ethically crass, politically opportunistic, and legally underhanded.”

WM3 supporters run for U.S. Senate and Arkansas legislature

Wendy Crow and Mary Boley, two veteran activists on behalf of the WM3, are running for seats in the Arkansas House of Representatives as candidates of the state’s Green Party.

Crow, of Jasper, and Boley, of Russelville, have long been associated with ARWAR, Arkansans Working to Achieve Revolution. ARWAR was the first Arkansas group to hold benefits, print fliers, and meet with a representative of the governor of Arkansas to call attention to the injustice that has kept the WM3 in prison.

Rebekah Kennedy, the Green Party candidate for U.S. Senate from Arkansas, is also a supporter of the WM3. Last summer, she traveled from her home in Fort Smith, on the western border of Arkansas, to Marion, on the eastern edge of the state, to speak at the WM3 Awareness Day held at the Crittenden County Courthouse.

Was It Rape?

My article about accusations against Ron Fields, a former Arkansas attorney general, appears in this week’s Arkansas Times. I welcome your comments.

Appearing with the story was this account of the prosecution of Rolf Kaestel by Fields, and what has happened to Kaestel since he was sent to the Arkansas Department of Correction.

Much ado about fundraising

This morning, the Memphis Commercial Appeal reported that a new fund has been established for the defense of the West Memphis Three. I urge you to read more about the new West Memphis 3 Innocence Project. You will see that I am one of the directors.
Not surprisingly, announcement of the fund’s creation has stirred up something of a storm among supporters. Here is my response to some of the criticisms that have been aired.

1. None of us involved is receiving any money from the WM3IP fund, nor will we. All efforts to create and maintain the fund have and will be volunteered.

2. With regard to the claim that attorneys for Jason and Jessie have not complained, we believe Dan Stidham’s report that funds have not been made available to advance Jason and Jessie’s appeals.

3. Alice Leeds disparages Judge Stidham and me, but she does not answer the important questions we’ve raised regarding how much money has been raised and how much of it has gone to further the appeals of Jessie Misskelley and Jason Baldwin.

4. Recent comments by Dustin McDaniel, the Arkansas attorney general, suggest that Damien, Jason and Jessie have a hard legal fight ahead. We want the legal teams for Jason and Jessie to be involved in that fight. In fact, we believe that this battle is going to require the efforts of teams for all three men–not just one. We don’t think this makes us traitors to the cause of the West Memphis Three. Rather, we believe that, in contrast to the other fund, we are acting in true support of ALL THREE MEN.

5. It is true that what helps crack the case of one man, probably helps all three. But if that logic holds true for one, it holds true for all three. For example, the analysis of some lawyers is that Jason Baldwin’s case actually poses the most problems for the state. His lawyers called no witnesses for his defense, he didn’t confess, he didn’t exhibit any of the behaviors that worked against Damien. By the same token, Damien’s defense may be the most difficult. He has exhausted all but the last of his state appeals. We believe that a concerted effort needs to be made on behalf of each of the three men, because it does not make sense to keep striking in just one direction when any of three might crack the case—for the benefit of all three.

6. One of the central problems with this case was that the juries did not question what they were told by the prosecutors. Supporters of the WM3, on the other hand, have been willing to question and to rely on facts. We believe we are continuing that tradition, even when the questions and the facts apply to our own role as supporters. We are not sheep, willing to accept unsupported claims and non-answers to serious questions. We are also not willing to fall in line with forms of group-think and character assassination. That, after all, is what convicted the WM3.

7. All we ask is this: Check it out for yourself. Ask the questions we did. See if YOU are satisfied with the answers.

“With Liberty” on YouTube

Last spring, two film students from Northern Illinois University interviewed me as part of a documentary they were making on the WM3. They recently wrote to say their film is nearly finished and that a trailer has been posted on YouTube. Check it out: With Liberty: the West Memphis Three