The Defense Never Rests

The Defense Never Rests

As originally appeared on the front page of The Columbus Dispatch Accent Section on February 23rd, 2003. Written by Mike Harden

In a photograph that captures him standing beside the elder George Bush in the summer of 1974, he looks like a late-blooming Beatles fan. Bush, at the helm of the Republican National Committee, was hoping in vain to be chosen as vice president under Gerald Ford. The 20-year-old James D. Owen, a hard-charging member of the committee staff on a break from Ohio Wesleyan University was positioning himself for a career as an architect of U.S. public policy.
His world during the mid-‘70s was light-years removed from that of Timothy Howard, whose plans – though not as grandiose – didn’t include a quarter-century spent in prison. Ultimately, fate drew the two men together – though not until after Owen found his law-and-order leanings shattered by doubts about the criminal-justice system.

“I’m a lifelong Republican,” Owen said recently from his modest North Side law office, “I suppose it’s kind of ironic.” Working with Karl Rove, today a chief strategist for President George W. Bush, he taught workshops on managing political campaigns. Owen was preparing for law school when Howard was heading for an ugly turn.

Two males had robbed an E. Main Street bank, killing a 74-year-old security guard before fleeing. Howard, who was considered a suspect, asked a friend to take him to police headquarters, where he hoped to clear his name. That day, just before Christmas 1976, was his last as a free man. He was convicted of the crime along with Gary Lamar James. On the same day in 1977 that Howard took his spot on Death Row at the Southern Ohio Correctional Facility in Lucasville, Owen took his first-semester law exams at Capital University Law School.

The young lawyer eventually joined a firm handling commercial litigation. In 1985, Owen was dotting the “i’s” and crossing the ‘t’s” in a boring niche of law when George Smith, then a Franklin County Common Pleas judge, asked him whether he had an interest in accepting criminal cases as a public defender. “He’s very bright,…very focused,” Smith said recently.  “Jim is fearless.” Back in the ‘80s, I had two or three cases with him, recalled Common Pleas Judge David Cain.  “He used to strike me as kind of odd.  You’d see someone who looked like a conservative Republican defending a dirt ball.  It didn’t seem to fit. “He fought for the defendants like he was defending his own mother.”

On his first case as a public defender, Owen remembered, “I assumed that the system was reasonably reliable in determining who was guilty and who was innocent.  Since then, I’ve had my doubts – and those doubts have grown.”  In 1986, he won an acquittal for a defendant charged with murdering a German Village florist. The case had death-penalty specifications. “It made me wonder how many other people out there could be innocent,” he said.

Meanwhile, on the verge of spending a decade in prison, Howard was writing a flurry of letters professing his innocence. He beseeched everyone from public defenders to talk-show hosts. No one listened until 1991, when Howard reached a New Jersey organization, Centurion Ministries, dedicated to defending people thought wrongly convicted.
“We’ve been able to free 26 people across the country, two of them on Texas’ Death Row, founder Jim McCloskey said.

After establishing with Howard what he viewed as a solid case for a new trial, McCloskey went shopping for a Ohio lawyer. “Basically, he is a loner and a maverick,” McCloskey said of Owen, whom he met in 1996.  “You need somebody who is familiar with the players but is not tied into the old boys’ network.  Somebody has got to be willing to fight and not worry about relationships they have at the courthouse.  He’s not afraid to make people angry.” Owen, who has since become chairman of the Ohio Public Defender Commission, seemed the right choice – to represent Howard and also James.

Taking the case, he learned of several elements in the prosecution that made their guilt questionable. A Columbus detective testified that identifiable fingerprints weren’t taken from the crime scene; in fact, the police had obtained three fingerprints matching those of neither Howard nor James. Neither the weapon nor the money was found.  And, on the day of the robbery, the security camera had no film. John P. Bessey, the defense attorney in 1977 and a Common Pleas judge today, has since testified that he was denied vital information from Columbus police and the FBI. And the sentencing judge – William T. Gillie, who has since died – signed an affidavit seeking a new trial to present newly discovered evidence. Common Pleas Judge Michael H. Watson is expected to rule on the case in the next few weeks.

“There isn’t a scintilla of evidence that Timothy committed the murder he was convicted of,” Owen said.  “I don’t think there is one person in the state of Ohio who would vote to convict (him).” During the years he has accepted cases as a public defender, Owen has continued to practice other types of law. “If it wasn’t for commercial litigation, I couldn’t make a living,” he said. Of the 100-plus felony cases he has handled, Owen said, more than two-thirds didn’t go to trial; the accused usually pleaded guilty to a lesser charge. Two-thirds of the 30 or so that went to trial, he said, ended in acquittals. “I’ve handled eight death-penalty cases,” he said.  “Two were resolved by plea bargain; six have gone to trial.  Of the six, three were acquitted of all charges; one was convicted but had the sentence reversed on an appeal; the two others were convicted of lesser charges.”
His passion as a public defender baffles many friends and associates. “I think he gets a lot of flak for it,” said he wife, Sue Ann. “We have friends, some in big law firms, who think he is wasting his time.” She recalls a club meeting at which the guest speaker, an FBI agent, told the assembled throng, “The only people worse than the criminals themselves are the people who defend them.”
When he was younger, son Nathan wasn’t sure what to make of the father he saw in TV news reports. “Nathan, in kindergarten and first grade, thought his daddy was doing something bad,” his mother said. “Today, he is very proud of his father.” “A lot of judges, prosecutors and the public in general,” Owen said, “tend to question the credibility of public defenders.  I think there is a public perception that a lot of public defenders are liberal ideologues who would do anything to advance the case their client.”
He sees nothing inconsistent in his being a conservative Republican as well as an ardent advocate for a strong defense in criminal cases. “Republicans tend to distrust government programs,” he said, “yet for some reason make an exception for the criminal-justice system.  But the criminal justice system is just another government program.  And there is no reason to think it would be any more reliable than any other government program.”

Owen “knows the law front to back,” Howard said from the London Correctional Institution, where he awaits word on the appeal for him and James. “He’s a straight shooter in the courtroom. I’m confident in him.”
Twenty-five years ago, Howard was just another Death Row inmate who sent unanswered letters to Geraldo Rivera. Back then, Owen was just another law student who might have ignored pleas from the likes of Howard. Vindication in 2003 would prove the veracity of a Russian proverb applicable to both lives:  “God sees the truth, but waits.”