The Wrong Men
Article published by Cincinnati Magazine and Law & Politics in Ohio Super Lawyers magazine recognizing attorney James D. Owen as one of “the top attorneys in Ohio. Written by Kevin Featherly.
TIM HOWARD AND GARY JAMES SPENT 26 YEARS PROCLAIMING THEIR INNOCENCE. JAMES OWEN FORCED THE SYSTEM TO LISTEN
The police made Tim Howard wait an entire hour before they would see him; it probably seemed longer. A friend’s mother said she heard his name on the radio that day, the announcer indicating that Howard and his friend Gary James were suspects in a bank robbery and murder of a 74-year-old bank guard. Tim, 23 at the time, immediately set off for the Columbus, Ohio, police station to clear things up. It was three days before Christmas, 1976.
An officer finally summoned him into an interrogation room to chat with a detective. Twenty-six years and four months later, he was allowed to leave.
That they put him in a holding cell that day was no surprise, but the interrogations went on interminably. How long could it take to verify an alibi? By Christmas Eve, Howard grew impatient. “I told them I’d like to get home for Christmas,” he says. “They told me that I was going to spend many Christmases in prison.”
Somewhere nearby, a similar scene played out involving James. Both say they were on opposite ends of town at the time of the crime and learned from media reports that they were suspects in the execution-style murder of bank guard Berne Davis. Both approached police to set matters straight. Both were rewarded with wrongful death sentences.
“They investigated everything I told them,” says James, who admits he was on the police’s radar screen because of an earlier armed robbery. As to the bank heist, he says, “They knew I was telling the truth.”
“I believe that if this hadn’t happened to James and myself it would have happened to two other black guys,” says Howard. “They were out there trying to solve a murder case as quickly as possible. They didn’t care who took the fall.”
James D. Owen, the Columbus attorney who took the case in 1997 and worked six years to free the men, has a different outlook. For Owen, his clients’ odyssey isn’t really about race, but it is no less grim. “The moral of the story,” Owen says, “is that there is no legitimate mechanism for innocent people who are wrongly convicted to litigate their innocence.”
In fact, Howard and James were fortunate they lived long enough to meet Owen. The state’s death penalty was ruled unconstitutional in 1978—it was reinstated in 1981. But for that, both men would be dead and forgotten, their guilt accepted historical footnotes. When their sentences were commuted to life in prison, the intensely motivated Howard began clawing his way out of his personal purgatory.
Initially at least, James seemed to have accepted his fate, leaving Howard to fight alone. “Gary actually told me, ‘Tim, I thought you were crazy,’” Howard recalls. “He just didn’t believe we were ever going to get out of this mess, I guess.”
Today, at 52, both are free men. But in some ways the hardest part of their sentences is just beginning. For James, a short-order cook at a nightclub, the outside world is proving a dangerously complex place. “Prison—you might say it’s tough or mean—but it’s more black and white. Out here, it’s almost all gray, so ain’t nothin’ what you think it is. And that’s what you have to really hurry up and understand and grasp. The faster you do that, the faster, I think, that a person would have a chance to succeed.”
SENDING OUT AN SOS
The story of their overturned convictions is mostly Tim Howard’s. He never stopped fighting. Howard says he spent the entire day of the murder with his mother, father, sister and elderly grandmother in his parents’ home so he knew evidence had been suppressed at trial, that people had sworn to falsehoods. But there was a lot he didn’t know. To free himself, he needed to find out, and he needed help.
In prison, Howard was encouraged by a sympathetic staffer to create a form letter proclaiming innocence. He sent it to everyone from Oprah Winfrey to Geraldo Rivera. Then one day, more than a decade into his sentence, Howard was watching a segment on Rivera’s daytime talk show spotlighting Centurion Ministries, a Princeton, N.J., organization that, despite its name, has no church affiliation. Its “ministry” is to free wrongly convicted inmates.
Jim McCloskey, Centurion’s executive director, says he first heard from Howard somewhere around 1990. A review showed the case fit Centurion’s criteria, so Howard was mailed a questionnaire. Sixteen months later, Howard’s reply arrived. McCloskey was stunned. “It was an encyclopedia,” he says. “Well organized, methodically put together, answering every question with attending documentation.”
Centurion took Howard’s case and them James’. Before long, McCloskey hired Owen, known locally as a maverick with connections reaching into some high places: Owen once was a Republican National Committee employee. “Much of what I do at trial when representing the accused has been borrowed from what I learned years ago when I was involved in politics,” he says.
Owen made his legal reputation in 1986 by winning acquittal for Donald Hairston, an accused murderer who had endured two mistrials. Owen produced various pieces of previously overlooked evidence and won Ohio’s first death-penalty acquittal after executions were reinstated.
Just the kind of counsel McCloskey wanted for Howard and James. “Mr. McCloskey said we don’t need a good-old-boy lawyer, more or less we needed a rebel-type lawyer,” Howard recalls. “[Owen] bucks. That’s what we needed and that’s how he got in.”
A lifelong Columbus resident, Owen is well known to the town’s tightly knit legal community, including most of its state and federal judges. He readily acknowledges he is no good-old-boy. “I get along with most of the people,” he says “but I would consider myself a maverick. It doesn’t bother me to litigate aggressively for my client, regardless of whose feathers it ruffles.”
FACTS NOT IN EVIDENCE
In this case, Owen faced long odds. In early 1980s, Howard had won a retrial and actually had his conviction overturned by the state appellate court before it was reinstated by the Ohio Supreme Court. By the mid-1980s, his options were exhausted. James, meanwhile, missed his petition deadlines and also was without recourse. To revoke the convictions, then, Owen had to prove more than innocence. “My burden of proof was to prove not only a constitutional violation, but that without that violation no reasonable jury would have convicted,” he says. “It’s an almost insurmountable standard.”
Owen, McCloskey and a private investigator began combing the state for evidence. They canvassed the inmates’ old neighborhoods, met the original trial attorneys, collected a pile of affidavits. They filed Freedom of Information Act requests to obtain FBI files from the initial bank robbery investigation. Initially, they received FBI documents with key names redacted and had to fight to get them disclosed. But in that process, they learned that FBI investigative materials had been turned over to Franklin County prosecutors, though the authorities refused to turn them over to the defense, contending their release would violate federal law. It took a phone call from the FBI’s chief legal counsel to Judge Watson in open court to finally unlock the evidence needed to assemble a case, Owen says.
The process took years, and what they ultimately learned is astonishing. Here’s a quick rundown of the evidence Owen helped uncover, key pieces of which never were presented to the original defense attorneys:
• No physical evidence placed James or Howard at the bank, forcing investigators to rely on eyewitnesses. Someone initially claimed five suspects committed the robbery, but only James and Howard were ever arrested. A bank employee told police she would recognize the suspects’ photos, but was unable to point out James or Howard’s picture.
• A key witness who owned a tire shop across the street said he saw a black man he knew as “Tim” emerge from the bank right after the robbery. But the address he gave belonged to another Tim—Tim Harshaw. That same witness, Robert Simpson, told FBI agents the very day of the robbery he had not recognized the men outside the bank.
• The bank’s security camera was working but inexplicably contained no film on the day of the robbery.
• The lead detective on the case, Tom Jones Sr., resigned in 1979 while targeted in an internal affairs probe of alleged witness tampering during an investigation into the murder of a prominent Columbus physician.
• James, whose alibi included a visit to an optometrist’s shop around the time of the robbery, was unable to come up with the $91 needed to claim his new glasses—less than an hour after he supposedly robbed a bank.
• A Columbus police detective, Harry Coder, testified in court that only a palm print was found at the crime scene, but it was left after the robbery. But police evidence uncovered decades later included three fingerprints belonging to one of the actual robbers. None matched James or Howard.
• A judge allowed assistant Franklin County prosecutor Daniel Hunt to testify about evidence contained in a missing briefcase without having to show it in court. Hunt said it contained photos of Howard and James that a rebuttal witness named Robert Petty identified as the same men who robbed his rental store the day before the bank robbery. John Bessey, Howard’s original attorney and now a Columbus common pleas judge, later said the testimony and evidence cited from the missing briefcase proved devastating.
Columbus Dispatch reporter Alan Johnson, whose stories beginning in 2002 generated public pressure to free the men, says he was initially skeptical, but the facts changed his mind. “My personal comfort level is that there was definitely some misconduct, most likely on the part of the police, and possibly on the part of prosecutors,” Johnson says. “There was information that was clearly hidden, information that was not provided to defense counsel during trial that should have been. It was just too suspicious.”
LIBERTY AND JUSTICE
On April 16, 2003, Judge Michael H. Watson overturned Howard’s conviction. (Owen had convinced McCloskey, Howard and James to review the cases separately, reasoning he could more easily spring Howard, and that public pressure would then force authorities to capitulate and free James. That is essentially what happened.)
Watson ruled immediately after Howard refused an offer from the state that would have set him free—sentenced to time served—if he admitted the guilt. To Howard, it was no option. “I didn’t do anything,” he says. “And it’s my character, I have strength. I believe if I am telling the truth, the truth can’t be disputed.” He also says that buying his release would doom James’ chances. And besides, he says, curiosity was killing him. After seeing all the evidence and watching his defense team at work, he simply had to know how Watson would rule.
“Clearly,” the judge wrote in his opinion, “[Howard] was unavoidably prevented from discovering material, exculpatory evidence.” Watson accused county authorities of suppressing evidence, but stressed he was not saying Franklin County prosecutors knew about it. Still, he ruled, ignorance is no excuse. Any reasonable jury would have been troubled had they known of several witnesses’ inconsistent testimony or that suppressed fingerprints did not match the suspects’, he said. “The court cannot, in good conscience, allow defendant’s verdict to stand,” Watson wrote.
Howard was free; James remained in prison. That lasted only until summer, when public pressure forced authorities to release him on the strength of a passed polygraph test—a test inadmissible in court. It was done, prosecutors said, “in the interests of justice.”
Owen and McCloskey both think there are many cases like Howard’s and James’; McCloskey insists “thousands” of wrongly convicted inmates are serving life sentences or sitting on death row.
Even so, don’t expect Owen to get himself fitted for a superhero’s cape anytime soon. “I know that I’m never going to be able to cause any systemic change,” he says. “I think early on when I started to suspect how fallible the system was, I thought that somehow I might do that.” Now he thinks that if he can help three or four wrongly convicted people out of their predicaments, it will be a worthy career. “I’m not a crusader,” he says.
For Howard and James, the legal story is not quite over.
They have filed twin wrongful conviction civil suits. Again, Owen is representing them, along with attorneys Rick L. Brunner and Rick S. Ketchum. The suits promise yet another twist on the case—and that missing briefcase plays a key role. County prosecutors claimed Hunt’s satchel was lost or stolen in 1977, and incriminating evidence went with it. But Owen has obtained an affidavit from Hunt’s wife saying he handed the briefcase down to his son upon graduation from law school, and that it was the only briefcase the late prosecutor ever used. Owen now claims the case might have contained an exculpatory police progress report showing that rebuttal witness Petty failed to identify the men’s photos, directly contradicting his courtroom testimony.
Howard says he expects the suit to be heard early next year. If successful, Howard and James could collect more than $2 million each.
But it is not a slam-dunk case; they must prove they were factually innocent or their conviction resulted from a procedural error. The Dispatch editorial page has called on state authorities, including the governor, to voluntarily step up and compensate the men, give them job training and hire them to responsible state jobs. It hasn’t happened. “It always just strikes me that for their sake, for justice, I hope they get some compensation for their lost lives,” says reporter Johnson.
Today, both men struggle with the realities of freedom, though both insist it is better than the alternative. “I feel blessed,” Howard says. “People go through all their lives with no fight and no purpose. And even though it’s unfortunate that this happened to me, I feel good that I put up a fight, and I’m out. I won.”
Still, James seems ambivalent about a potential civil suit windfall, worrying he may be vulnerable to scammers or a lack of discipline. “You can’t not know nothing and hold onto $2.2 million,” he says. “I want to have the sense to keep it and not only keep it but make it bigger. You’ve got to have the know-how to do that.”
For Howard, a hospital attendant, money isn’t the issue. In vulnerable moments, he dwells on the unanswered questions. What about that bank camera? Was there really film in it, were photos obtained, and was that evidence suppressed too? Owen warns his client there are no more such answers to be found, though he empathizes. “It’s something that is very difficult for Tim to get over,” he says. “Can you imagine spending 26 years to overturn a conviction and all of a sudden it’s vacated, and then just letting it go?”
If he can’t have answers, he’ll take retribution. For Howard, that’s what the civil suit is about. “The way they got me is the way I’ve got to get back at them,” he says. “They got me through the law. I have to get them back through the law.”