Were they wrongly convicted?
Twenty five years after being convicted of murder, new evidence might help two men receive new trials.
Sunday, February 10, 2002
Dispatch Statehouse Reporter
Timothy Howard, top, and Gary James were sent to prison for the murder of a bank guard, a crime they denied. Twenty-five years later, newly unearthed evidence might get them new trials.

When Timothy Howard heard that he was a suspect in a robbery and murder at an East Side bank, he immediately went to Columbus police to clear his name.

That was 25 years ago.

He still hasn't returned home.

Howard and co-defendant Gary Lamar James were convicted of aggravated murder and aggravated robbery. They have spent more than half their lives in prison.

Now, Judge Michael H. Watson of Franklin County Common Pleas Court is considering a request to reopen both cases based on evidence unearthed by Columbus lawyer James D. Owen and James C. McCloskey of Centurion Ministries.

McCloskey's nonprofit foundation, based in Princeton, N.J., has helped free 26 innocent men and women from prisons nationwide, including two from Death Row.

Already, Howard's defense attorney, who has since become a judge, and the judge who sentenced James have signed sworn statements indicating that evidence points to the need for new trials for both men.

Watson will examine thick, yellowing files from the county prosecutor and Columbus police, comparing the evidence and information they contain with that provided to Howard's defense attorneys in 1977.

What Watson sees might determine whether Howard and James, both 48, get new trials or continue serving life sentences for the slaying of Berne Davis, a 74-year-old security guard at the Ohio National Bank once located at 1433 E. Main St. Davis was shot to death -- "execution style,'' police said -- on Dec. 21, 1976, during a robbery.

Howard and James grew up together on the East Side, shared a paper route and remained casual friends as they got older.

Both had been in trouble with the law: Howard for possession of a marijuana cigarette and stealing a bicycle, James for an unarmed robbery that landed him in prison for a year in the early 1970s.

Because of their connection, when James was identified by a witnesses in the bank job, Howard became a suspect, too.

Quest for new trials

The two cases are dusty with age, filled with twists and turns and complicated by accusations of faulty eyewitness identification, missing evidence and perjury.

In a tense court hearing on Jan. 29, Owen butted heads with George Ellis, who handled the original case as an assistant prosecutor. Ellis is now chief counsel for Franklin County Prosecutor Ron O'Brien.

Owen maintained that, because Howard's case was "plagued with mistakes from the very beginning,'' it should receive a fresh look.

"All of this stuff was out in the open at the time,'' Ellis shot back. "I'm getting accused of covering things up. I know damn well that we didn't.''

Judge Watson ordered Owen and Ellis to submit copies of their files for comparison to determine whether the case should move forward or "just go away.''

To bolster their case, Owen and McCloskey took the highly unusual step of obtaining sworn affidavits from William T. Gillie, the now-

retired sentencing judge in James' case, and Judge John P. Bessey, Howard's defense attorney in 1977, who is now a Common Pleas judge in Franklin County.

Gillie suggested that both Howard and James should receive new trials, at which they could "present the newly discovered evidence that supports their claims of innocence.'' Bessey said in a sworn affidavit that he did not receive "exculpatory evidence'' that could have helped vindicate Howard.

Centurion and the law

More than two decades ago, a 37- year-old McCloskey gave up a lucrative career as a Wall Street businessman to attend divinity school and work with prisoners.

He founded Centurion in 1983 and now has a full-time staff of six and an annual budget approaching $1 million.

Five years ago, McCloskey received a letter from Howard pleading for help -- one of 1,300 such requests Centurion receives annually. The foundation now actively pursues 20 cases nationwide.

McCloskey asked retired New Jersey police investigator Nick Iron to study Howard's case before deciding whether to get involved. McCloskey subsequently used foundation money to hire Owen, a private lawyer and chairman of the Ohio Public Defender Commission, and Nick Katchen, another local lawyer.

"I have a strong faith that somehow, some way we will free and exonerate both men,'' said McCloskey, now 59. "We're going to be with them until they walk out -- as long as it takes.''

Ellis doesn't expect that to happen.

"I was convinced at the time we tried these cases that we had the correct people,'' he said, adding that he sees no evidence that shows otherwise.

"Everybody that's in jail lives to get out,'' he said. "They'll basically do whatever they can . . . to get out of jail.''

Nevertheless, Ellis is poring over microfilm files from the case, studying details, reviewing the facts in his mind. He acknowledged that, 25 years later, he can't remember all the details.

Owen and McCloskey contend that no physical evidence connected Howard and James to the murder, that the men were misidentified by witnesses and that their clients were framed by Thomas J. Jones Sr., a former Columbus police detective. He resigned on a medical disability in the late 1970s while being investigated on charges of misusing informants.

"I don't even remember the case,'' said Jones, now a retired private investigator living in Lancaster. "It's been too long.''

How the facts add up

Among the curious circumstances of the two cases:
 

  • The bank's security camera contained no film, so no photographic evidence exists regarding the killer's identity.

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  • Neither the murder weapon nor the $1,207 in stolen money was found.

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  • Detective Harry Coder testified under oath that he obtained only a partial palm print, "a bunch of smears'' and no identifiable fingerprints at the bank. But evidence obtained later from Columbus police files included three fingerprints from the scene. None matched Howard's or James'.  "I can't imagine that we wouldn't give that to them,'' Ellis said. "If I was going to suppress something, I would have suppressed the palm print, not some odds-and-ends fingerprints.''

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  • Robert Simpson, the key prosecution witness, told police that he immediately identified the robber named "Tim'' because he had been in his tire shop across the street from the bank on many occasions. However, the "Tim'' identified by Simpson as living at 559 Berkley was Tim Harshaw, not Tim Howard.  

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  • Simpson gave a statement to the FBI on Dec. 27, 1976, six days after the robbery, in which he did not mention "Tim'' and said he "did not recognize . . . the two Negro males'' leaving the bank.  The FBI statement, uncovered recently through a Freedom of Information Act request, was not given to Howard's and James' defense attorneys during their trials.

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  • Less than an hour after the 2:15 p.m. robbery, James, accompanied by girlfriend, Brenda Hunter, kept an eye appointment at the Ohio State Optical Shop, 303 E. Town St., about 2 miles from the robbery scene. He signed in at 3:06 p.m., according to the shop's customer log. James was unable to leave a deposit for the $91.52 glasses he selected.

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  • Bank employee Michacla M. Hollenbach, after telling police that she could identify the gunman who killed Davis, was unable to pick out James from a series of photos. That information was not presented to James' attorney.

  • Life's gone on

    Howard and James originally were sentenced to death, but when Ohio declared capital punishment unconstitutional in 1978, their sentences were commuted to life in prison.

    The years behind bars have been hard for both of them, as life outside prison walls -- and family deaths -- have passed them by.

    While in prison, Howard's father died; his mother, who still lives in Columbus, contracted colon cancer; his son, Timothy Jr., was paralyzed in a drive-by shooting; and two grandsons, Elijah and Dawan Jr., were born.

    "Time has actually passed me by,'' he said during a telephone interview from the London Correctional Institution.

    "It was like a nightmare. You get caught up in a situation like this, you can't believe it.''

    Howard said he was home all day Dec. 21, something his sister, Beverly, supported during his trial. The jury did not believe her.

    When Howard heard from his father and a family friend that he was a suspect in the crimes, he said, he asked a friend to take him to the police station.

    "I came down to clear myself,'' he said. "I told my Dad: 'There ain't going to be no problem. I'm going to get this cleared up.'

    "I never thought I would spend more than half my life in prison.''

    Howard contends today, as he did 25 years ago, that he is innocent.

    "I thought, 'As soon as they look at the evidence, they would know I'm not the guy.' ''

    After his conviction and death sentence were handed down, Howard began writing letters, asking for records, seeking information, pleading for help.

    He got his conviction overturned by the Franklin County Court of Appeals, but it was reinsated by the Ohio Supreme Court.

    "I'm not bitter,'' he insisted. "I just don't have time for it.''

    Like McCloskey, Howard thinks he will someday go free.

    "I believe the truth is going to prevail. As long as you tell the truth, I don't care how long it is, the truth still stands.''

    James, who is incarcerated at the Allen Correctional Institution in Lima, said he heard news reports on the radio about the robbery and murder. He was playing cards at a friend's house when his mother called to tell him that he was a suspect.

    James called the police.

    "I told them who I was and where I was at. I told them I didn't have anything to do with it. They told me to stay right there.

    "I thought I would go get it straightened out and be back home before the night was over.''

    James, too, has lost family members while in prison, including both parents and his grandmother.

    He seems resigned to his fate after so long behind bars.

    "I never did like it,'' he said, "but there wasn't too much I could do about it.

    "It's been so long that I just want out.''



     
    This is the mainstream report.  Click HERE to read the back story.

     
     
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