Mara Leveritt reports on a newspaper interview by the former prosecutor, now Circuit Judge Tim Cooper whose failure to provide the defense with all available evidence led to the reversal of Tim Howard’s death sentence and his new trial this week in Little River County.
Ashdown—Circuit Judge Tom Cooper is not involved in the trial of Tim Howard that began this morning. Cooper’s role ended in 1999, when, as the prosecuting attorney, he won Howard’s conviction and death sentence.
But five days ago, as Howard’s retrial neared, Cooper gave an interview to the “Little River County News” that ran under the headline: “Former prosecutor says reporter lied.”
Cooper claimed that, due to my acknowledged friendship with Howard, I “chose to report what was contrary to what was stated” in court at an earlier hearing and that I have “lost all objectivity.”
After that hearing in October 2013, I reported that that Howard’s 1999 conviction and death sentence were vacated hearing due to prosecutor misconduct: specifically, that the state—Cooper— had withheld key evidence from Howard’s attorneys .
I repeated that assertion in a complaint I filed against Cooper with the Arkansas Supreme Court’s Office of Professional Conduct. In that, I contended that under what is known as the U.S. Supreme Court’s Brady ruling, prosecutors are assumed to have possession of all evidence available to the state and that, as the state’s attorneys, they are responsible for providing that to the defense.
In last week’s newspaper report, Cooper, who is now a circuit judge, took issue with my statement that he had withheld the evidence, items which he described as “in-house notes that were used by Bode Technology Group, Inc., the lab that originally tested a blood sample for mitochondrial DNA during the original trial.”
At Howard’s 1999 trial, Cooper told jurors that the DNA evidence he presented was of “monumental” importance. In his comments to the newspaper last week, Cooper disputed my contention that the lab technician’s notes had been withheld.
The paper’s managing editor, Jud Powell, wrote: “Cooper says that neither he, nor Deputy Prosecutor Jay Metzger ever received notes from Bode Tech and so there was nothing to turn over.” Cooper also told the paper, as I have previously reported, that he was “cleared of any wrongdoing by the Office of Professional Conduct.”
Powell reported that an attempt to reach me for response was unsuccessful. Here is my response, from the order issued by Circuit Judge Charles Yeargan that vacated Howard’s conviction:
“The court finds that there was no purposeful conduct by the state in withholding this information. Indeed it appears that neither party was aware of these reports prior to trial.
“However, pursuant to Brady, the state is imputed to have knowledge of these facts. The court believes that had this information been available to the petitioner at the time of trial that there is a reasonable probability that the result of the proceeding would have been different.”
This disagreement between Cooper and me—and ultimately between me and the Arkansas Supreme Court’s Office of Professional Conduct—illustrates a matter of mounting national concern. That is the failure of courts to hold prosecutors—and thus states themselves—accountable for the proper dissemination of information acquired during criminal investigations.
As Yeargan acknowledged in his order, it made no difference with regard to the legality of Howard’s first trial, whether Cooper knew anything about the laboratory’s notes. The U.S. Supreme Court’s Brady ruling says he was supposed to know about every item of evidence available to him and that he was supposed to provide it to the defense.
In other words, ignorance of evidence’s existence is no defense. Whether a piece of evidence gets forgotten in the back of a detective’s car, the tape of an interview gets mislaid, or a laboratory report gets overlooked, under Brady, the prosecutor is presumed to have it. Otherwise, Brady means nothing because no one is responsible for the proper disposition of all the state’s evidence.
I presume that Cooper understands that his failure to provide the laboratory notes is the very reason Howard is now being retried. After Howard had spent years on Arkansas’s death row, his attorneys discovered the existence of lab notes that reported several errors that occurred during the DNA testing, leading to possible contamination of the sample.
Howard’s attorneys petitioned the Arkansas Supreme Court, claiming that this evidence had been “withheld” at the time of Howard’s trial, and the court agreed that the claim had “apparent merit.” The high court subsequently ordered the case sent back to Yeargan, who later also agreed.
It is beyond dispute that evidence the prosecutor was required to provide for Howard’s first trial was improperly “withheld” and that, as a result, that trial was unfair, which led to his conviction being vacated and the trial now being held.
Courts exist to examine wrongdoing, assign responsibility, and punish where guilt is found. Punishments are routinely issued for wrongs that were not purposefully committed—such as injuries resulting from inattentive driving or underpaid taxes due to math errors. Responsibility is assessed and sanctions issued.
Yet here, the Office of Professional Conduct found no one responsible for the state’s failure to provide Howard’s attorneys with critical information that a court has determined was available to the prosecutor. When the Office of Professional Conduct notified me of its decision, it noted that I could appeal but I declined, seeing no use.