*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
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.)