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.)