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What went down in Ashdown

Puzzling over Tim Howard's retrial.


TIM HOWARD: His new guilty verdict should soon set him free image
  • Brian Chilson
  • TIM HOWARD: His new guilty verdict should soon set him free.

By midnight the courtroom felt drained. Both sides could take some satisfaction in the verdicts — though only some — and emotions, though strong, were muted.

Tim Howard hoped the jury would find him not guilty. Prosecutors wanted him sentenced to life without parole.

At the end, jurors split the baby. Arriving at what attorneys on both sides deem an apparent compromise, they did find Howard guilty but gave him a sentence that will soon set him free.

It worked like this: The jurors found Howard guilty, but of the least possible charges. They then sentenced him to a total of 38 years for the crimes.

State law requires Howard to serve half of that sentence, 19 years. Typically, a good prison record, which he's maintained, would cut that time in half as well. When the Arkansas Department of Correction reviews Howard's new sentence, probably within a matter of weeks, they are expected to calculate he needed to serve a total of less than 10 years — seven years fewer than he's already spent in prison.

So this was almost a U-turn for Howard, who, in this same courtroom in 1999, had heard himself sentenced to death. Now, standing to hear himself found guilty, of two second-degree murders and a second-degree attempted murder, with a sentence that amounted to "time served," he looked exhausted and numb.

For the victims' families, who have believed for nearly two decades in the justness of Howard's original sentence, the verdict rendered the night of May 8 in the Little River County Courthouse must have seemed all but incomprehensible.

But there it was: After 10 days of testimony, hundreds of exhibits and nine hours of deliberation, one thing was clear: A divided jury had labored hard to deliver a verdict that offered a semblance, if only that, of justice.

The timeline to this confusing moment can be traced to late in the 20th century, when methamphetamine buzzed into Arkansas. We don't know who brought the drug here. All we know is that by the mid-1990s, meth was epidemic, and it was worst in the state's rural dry counties — counties like Little River.

Howard used meth. The couple Howard was charged with killing used it. Many of the witnesses who appeared at the trial — both for the state and the defense — were using meth back then, or using and selling it, too.

We know that on a bitter cold day in December 1997, police found Brian Day shot, his wife, Shanon Day, strangled, and their infant son, Trevor, left for dead in a zipped duffle bag.

We know that, long after Howard's conviction for the murders two years later, the Arkansas Supreme Court ruled that he might require a new trial because key evidence available to the state had not been provided to his attorneys.

Such withholding of evidence would violate what's known as the Brady Rule, a requirement that prosecutors disclose all pertinent evidence the state has obtained. So the Supreme Court sent his case back to Circuit Judge Charles Yeargan, who had officiated at Howard's trial.

In 2013, Yeargan ruled that a Brady violation had occurred. He ordered Howard's convictions vacated. Legally, that made Howard innocent again, but though he was taken off death row, he went straight to the Little River County Jail because Bryan Chesshir, the current prosecuting attorney, opted to recharge him.

Chesshir said he would not seek the death penalty this time for Howard. Still, there was nothing easy about preparing to retry a case this old.

As Chesshir, who was not involved in the original trial, observed: "Eighteen years later, it's just a hard row to hoe."

Patrick Benca, Howard's current attorney, found the run-up to the trial hard, too. He argued in a couple of pretrial motions that prosecutors still were not providing the evidence Brady required.

Yeargan, as he muttered often during the new trial, was ready to "move on." He denied Benca's motions, saw a jury seated, and, on March 26, commenced Howard's retrial.

This observer found it a murky affair, a puzzle missing too many pieces. Nevertheless, having attended it throughout, I offer a half-dozen points that were proven, to me at least, beyond a reasonable doubt:

Two young people were murdered, their baby almost was, and items were sent to the crime lab.

Chesshir and Al Smith, his deputy prosecutor, put horrific photos of Brian and Shanon Day's bodies on a courtroom projector for jurors, members of the victims' families, and everyone else present to see — several times. A member of Benca's defense team noted privately that they would gladly have stipulated to the facts of the bodies' condition, but images are powerful tools.

In addition, numerous objects were presented for the jury to see, objects small as a piece of a bullet and large as a pickup truck toolbox. Testimony accompanied these objects, often by scientists from the State Crime Laboratory.

However, the experts could say little more about some of the items, such as a baby mattress with affecting Mickey Mouse sheets than that they had been sent to the lab and examined.

Did that mattress give the jury evidence, one way or another, that could help the jury in its considerations? Not that I could tell. But relevance didn't seem to matter. The sad thing stood in a corner of the courtroom until the trial was over.

Howard used meth, dealt in stolen tires and had "kinky sex" with several women.

The prosecutors established that in his 20s, the defendant was not a guy any of us would have wanted our daughters to date. On the other hand, as Howard was quick to acknowledge, prison had done him good. His death sentence may have saved his life.

Now in his mid-40s, the man who sat opposite the jurors appeared mentally and physically fit. Though he did not take the stand, he looked trim and remained attentive throughout. Not that that made him innocent.

Chesshir subpoenaed me to testify against Howard, intending for me to verify a comment by him that I quoted here in 2011. The section of that article read:

" 'Things were going downhill,' he said in a recent interview. 'I didn't know how to stop. I didn't even know I could stop.' He admits: 'I would eventually have ended up in prison at some point. Either that or dead.' But he says he did not kill his friends."

Chesshir never called me to read that. He told me later that Smith had persuaded him I wasn't needed because they'd already adequately established Howard's unsavory past.

Good trials need good investigations.

Benca tore apart the police investigation of the murders, from their handling of the crime scenes to the disappearance of evidence.

After a retired crime-scene investigator from the Little Rock Police Department criticized actions taken and not taken by chief investigator Hays McWhirter of the Arkansas State Police, the prosecutors responded that Little River County didn't have the resources the city of Little Rock does.

Benca pointed out that McWhirter had county deputies and Ashdown police available. But the larger, more disturbing point to me was the implication that, of course, justice will be meted out differently depending on where in Arkansas we live.

A coherent theory would help prosecution.

I didn't hear one. The prosecutors' opening and closing statements veered through various scenarios, but essentially they came down to this:

Tim Howard and Brian Day had been buddies, "thick as thieves," until their relationship "went south" shortly before the murders.

Brian's brother had told him that Shanon was having an affair with Howard. Shanon, who (all who knew her agreed) was hallucinating in her last days, believed she was pregnant and that Howard might be the father. Brian was fuming.

Nonetheless, Brian entered into two illegal deals with Howard, to be carried out on the weekend that culminated with the murders. The murders occurred because, while those deals were in the works, Brian found out that, in addition to messing with Shanon, Howard had stolen his stash of meth.

So, as best I could make it out, Howard shot Brian at the field owned by the extended Howard family where the second deal was to occur. From there, he dashed to the Days' home, where he strangled Shanon and stuffed Trevor into the zippered bag, "like so much trash," as Smith aptly put it.

What's more, Howard did this at a time in his life when he did not own a vehicle, so he had to rely on a series of girlfriends to get him around.

Even though Shanon's autopsy clearly showed that Shanon was not pregnant, Chesshir and Smith stressed her belief that she might be and that Brian suspected an affair. Her imagined pregnancy by Howard was presented as central to the prosecutors' case.

But I could never figure out why, in that case, Brian hadn't shot Howard, instead of the other way around. Or why, if Howard was having an affair with Shanon, he had gone on to strangle her (and trash little Trevor) after murdering Brian.

Maybe some of the jurors struggled with that, too.

The boots troubled both sides.

Two miles from the field where Brian Day's body was found, a passer-by spotted a pair of work boots standing in plain sight about 60 feet from the road, near where it joined a highway. The boots had a small amount of Brian's blood on them.

Several hairs were found inside, three of which contained mitochondrial DNA that could have come from Howard. But, because mitochondrial DNA cannot identify a specific person and no nuclear DNA was found, a positive connection could not be made.

Tom Cooper, a current circuit judge who was Howard's first prosecutor, told jurors the boots' importance was "monumental." They seem to have considered it so, because three days after that trial started the jury sentenced Howard to death.

But Benca challenged a lot about the boots, especially the notion that a killer fleeing the scene had been willing and able to throw them, not into the woods that were all around, but into a clearing visible from the road, where they landed about one foot apart.

The handcuffs proved climactic.

Chesshir and Smith built much of their case, as had Cooper, around statements made after the murders by a woman who at the time was named Jennifer Qualls.

Qualls, who now goes by Jennifer Stanley, had been one of Howard's girlfriends. But, she said, shortly after the murders, she became suspicious of him and called the police.

A key element of what Qualls told McWhirter was that Howard carried a black case, like a camera bag, in which he kept various items used for that "kinky sex." One was a pair of handcuffs trimmed in fake fur.

McWhirter said he considered that important information because Shanon Day was found with her hands cuffed behind her back. The investigator said he went to a local "adult" store and purchased a set of cuffs that, when the fake fur was removed, were identical to the ones that bound Shanon.

Howard's wife, Vickie, confirmed that Howard had handcuffs in the bag, though she said he did not use them with her. So the prosecutors rested much of their case on Qualls' testimony that she'd found Howard's black bag in the trunk of her car and McWhirter's testimony that when he retrieved it, there were no handcuffs inside.

At this trial, however, Qualls/Stanley inadvertently torpedoed much of that testimony. "Do you remember telling our investigator not long ago that you saw the handcuffs in the bag after the murders," Benca asked her on the stand. "No!" she insisted.

But then, over her strong objections, Benca played a recording the investigator had secretly taped of his interview with her in which she'd said just that.

With her credibility thus, at least, challenged, Stanley stormed out of the courtroom, slamming the door as she went.

Jurors noticed. And some of them may have been concerned by McWhirter's additional testimony that he'd discarded a tape recording he made of his initial interview with Qualls and that an unknown number of his handwritten notes from that meeting appeared to be missing as well.

After the trial Chesshir said he believed Stanley told the truth from the start. "I never saw any signs of her lying to me whatsoever," he said, "and I've been doing this for 25 years."

Benca said that, though Howard will be out of prison by summer, he plans to appeal the new convictions.

"The appellate court can find that the jury had to resort to speculation and conjecture in finding Tim guilty of the lesser included offenses of second-degree murder (times two) and the attempted second-degree murder of Trevor," he said. If it does, he said the appellate court will direct Yeargan to "dismiss the matter." In that case, Howard would be exonerated.

But all that will take time. Though Howard will likely be free for most of it, Chesshir said he's satisfied that, "for the second time he has been convicted of horrifically murdering his friends and trying to do the same to their baby."

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