the night of his murder.” Hannah noted that “there is probably not a more common caliber than .38,” and that, while Cooper had portrayed Howard as having spent large sums of cash after the murders, the actual amount, according to testimony, had been “a few hundred dollars.” Citing the testimony of witnesses who reported that Shannon Day had said “she did not know what Brian was doing with the money but they were going to kill him,” and that Shannon feared for her family because “Brian owed everybody money,” Hannah saw abundant fear — but nothing that pointed to Howard. “What the record does reveal,” he wrote, “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.” He continued: “There is abundant evidence that all of these people were nervous about something that has never been revealed. The evidence does put someone at the Howard farm with Brian the night he was killed. It does not put Howard there.” And: “The persons with whom Brian met on the night of the murders had a great deal more to gain” than Howard from the murders of Brian and Shannon
14 FEBRUARY 2, 2011 • ARKANSAS TIMES
Day and the attempted murder of their child by making them “an example of what happens when a person does not meet his obligations.” No part of the trial, however, seemed to disturb Justice Hannah as much as the unfounded intimation that Howard had gotten Shannon Day pregnant. When Howard’s attorney had objected to the introduction of that “evidence,” he had been overruled by Judge Yeargan. Hannah believed Yeargan’s ruling on that point was wrong and that, because the pregnancy claim was allowed: “An African-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 ...” Cooper is now a circuit judge. Attempts to reach him for this article failed.
The legal meander
I
n 2003, shortly after the Arkansas Supreme Court affirmed Howard’s conviction, his lawyers filed a Rule 37 petition in Little River Circuit Court, claiming inadequacies at his trial. That was an appeal for a new trial. The circuit court denied it. With his case then seemingly headed
towards an appeal in federal court, Howard was appointed a federal public defender, who had his case reinvestigated. That’s when the notes concerning problems with the DNA analysis were discovered. At that point, Howard’s federal attorneys began working to bring those notes before a new jury. In the past three years, Howard’s case has bounced from a habeas petition in federal court (ordered back to state court in 2007), to a request for another Rule 37 hearing in Ashdown (dismissed in 2009), to a request that the Arkansas Supreme Court order a new Rule 37 hearing (denied in 2010, with two justices dissenting), and now to the current petition before the Arkansas Supreme Court, which seeks an evidentiary hearing that could lead to a new and “fair trial” in Little River County. Last October, shortly after the filing of Howard’s most recent petition with the state Supreme Court, David R. Raupp of the Arkansas attorney general’s office, filed the state’s response. It stated that, “Assuming without conceding that [Howard] is correct” on his “withheldevidence claims,” the high court should deny him a new trial because “he has not been diligent in bringing his request and his claims are not meritorious.”
Essentially, the diligence argument is over all the back-and-forth that has occurred as Howard’s lawyers have tried to find a venue that would accept the new DNA information. In 2007, U.S. District Judge Brian Miller ruled that Howard needed first to give state courts a chance to address the issue. The petition now before the Supreme Court marks Howard’s fourth attempt to do that. Raupp argues that, “The [Supreme Court] should not indulge Howard’s piecemeal efforts to return to circuit court to relitigate his guilt and death sentences because such efforts serve only delay.” Raupp also told the court that Howard’s petition was not “meritorious,” because he had failed to “demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial.” According to Raupp’s response, Howard “overlooks a significant circumstantial link of him to the crime.” In outlining that link, Raupp cited: • Brian Day’s blood on boots that Vickie Howard said “were the same type and size she had bought” for Howard”; • Howard’s “fingerprints on the