Cases
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 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.)
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.)
