TIM HOWARD: More questions about evidence handling in his trial.
ASHDOWN — Proceedings Wednesday in the murder trial of Tim Howard ended with Circuit Judge Charles Yeargan telling attorneys for both sides that overnight he would consider defense motions for dismissal and a mistrial, though he added he “probably” would not grant them.
A bit earlier, in midafternoon, Yeargan ordered the jurors out of the courtroom after Arkansas’s chief medical examiner, Dr. Charles Kokes, offered startling testimony that he had compared the tread on a pair of boots against photos of marks on the body of Brian Day, one of the two victims in this case from 1997.
When prosecutors questioned Kokes on direct examination, they had asked him whether blunt-force trauma to Day’s head could have been caused if Day had been rolled in a piece of carpet (entered earlier into evidence) and run over by a vehicle. Kokes said that was possible.
During cross-examination, Howard’s attorney, Patrick Benca, asked Kokes if Day’s injury could have been caused by several men kicking and stomping on his head while he was on the ground. Kokes said that too was possible.
It was at that point that Kokes startled the defense by adding that he had, in fact, been given a pair of boots to compare with the pattern of injuries photographed on the sides of Day’s face. The only boots entered into evidence are the boots entered into evidence at the first trial which were said to have belonged to Howard.
Kokes’s remark about examining the boots stopped Benca in his tracks. Gasps were heard in the courtroom.
Bailiffs led jurors out of the courtroom. Benca then asked Kokes about notes he kept on the comparison.
Kokes said he could not recall who had submitted the request for the test, but that his notes were dated Feb. 12, 2014. That was just over four months after Yeargan ordered a new trial for Howard because the prosecutor at Howard’s original trial—the attorney representing the state—had failed to provide defense attorneys with key information relating to forensic tests as required by law.
Kokes, who said he had not been able to determine one way or another whether the boots were used in the attack on Day, added that he had provided a copy of his notes to Alwin Smith, a deputy prosecutor in the case.
At that point Benca addressed Judge Yeargan, stating that Kokes’s notes about the comparison had not been given to the defense prior to this trial. “This is a Brady violation,” Benca said, referring to the common name for the constitutional due-process requirement that defense attorneys be provided with potentially exculpatory information available to the state.
Benca, who has filed two motions with the court in advance of this trial concerning other evidence he said had not been provided, then moved for a mistrial. “This has been going on for 17 years,” he said, “and I ask that Mr. Howard be freed this afternoon and allowed to leave this trial as an innocent man.”
Smith responded that he believed a copy of the report had been given to Benca on a DVD from the crime lab and that, in any event, the information it contained was not exculpatory because Kokes’s examination was inconclusive. “It can’t be a Brady violation if it doesn’t exculpate,” Smith said.
Benca countered that the notes suggested someone on the state’s side wanted the boots tested because being kicked and stomped seemed a reasonable explanation for Day’s blunt-force brain injury. Noting Kokes’s inability to confirm that the boots caused that injury, Benca argued, “That’s exculpatory.”
Yeargan ordered a break, during which defense attorneys were asked to check the DVD from the crime lab. Kokes’s notes on the boot comparison were not found on it.
The judge then called the jury back in and told them they were through for the day. With the jurors now gone, he held a special hearing, recalling Kokes to the stand. This time Kokes said that, having “had time to reflect a little better,” the decision to compare the boots with the injury patterns may have been his own; that “it seemed like a good idea at the time.”
After examining the books, Kokes testified, “I put the notes on my messy desk and they got set aside.” He said they remained there on the desk for approximately a year, until he came upon them and turned them over to Smith in February of this year.
As for why a copy of the notes did not appear on the DVD that was provided to the defense, supposedly containing the crime lab’s complete file on the case, Kokes said, “That was my fault for not handling the paperwork as it should have been handled.”
Yeargan asked Kokes if Smith had any way of knowing the file was not on the DVD provided to the defense. Kokes replied, “No.”
Noting that the medical examiner said the examination was inconclusive; the defense says it’s exculpatory, and the prosecutors say it’s not exculpatory, Yeargan told the attorneys that he was reluctant to grant a mistrial but would consider granting a continuance so Benca could get his own experts to weigh in about the comparison. He then adjourned court for the day.
But those were not the only highlights from this unusual trial. In the morning, when Benca cross-examined Kokes, he touched on the theory prosecutors raised in Howard’s first trial and renewed in this one: that Shannon Day believed she was pregnant by Howard, which somehow led to the couple’s killings.
Kokes said Arkansas State Police investigator Hays McWhirter had asked the crime lab to check Shannon Day’s body for pregnancy shortly after the murders. Kokes said the lab had reported at that time that the results were negative.