Columbus Dispatch


Tuesday, December 10, 2002. Written by Alan Johnson

After proclaiming his innocence for nearly 26 years, Timothy Howard finally got his day in court yesterday, where a former FBI Agent testified that authorities may have convicted “the wrong guys” for an East Side robbery and murder. “I always wondered whether these guys were guilty,” Philip R. Kerby, a retired 26-year veteran FBI agent, testified at a hearing in Franklin County Common Pleas Court. “I had thought about it over and over.”

Kerby, who was stationed in Columbus in the 1970s, said by late 1977 he was doubting whether Howard, now 49, and co-defendant Gary Lamar James, also 49, were the ones who robbed the former Ohio National Bank at 1433 E. Main St. on Dec. 21, 1976. Berne Davis, a 74-year-old security guard at the Bank, was shot to death execution-style during the robbery. When a similar, violent robbery happened later at an Ohio National Bank branch near the Ohio State University campus – and Howard and James already were behind bars – Kerby said it troubled him.“I said, ‘Holy Cow, we may have the wrong guys on the other job,’ “ Kerby testified.

Columbus lawyer James D. Owen,with the backing of James C. McCloskey of Centurion Ministries, a nonprofit foundation based in Princeton, N.J., a few years ago filed appeals hoping to free Howard and James after more than a quarter-century in prison. McCloskey’s group has helped free 26 innocent men and women from prisons nationwide, including two from Death Row. Howard and James originally were sentenced to death after their convictions on aggravated murder and aggravated robbery charges. However, when Ohio declared capital punishment unconstitutional in 1978, their sentences were commuted to life in prison.

Judge Michael H. Watson, who presided at a preliminary hearing in Howard’s case last Jan. 29, decided to hold a full hearing to examine new evidence. James’ case will be considered separately. Howard was in court yesterday in handcuffs and wearing a prison jump suit during the morning session. However, he was allowed to change into a white shirt, tie and pants in the manacles. From time to time, he smiled and waved at family members in the courtroom. The audience included Howard’s two sons – Tim Jackson, 26 and Dawan Jackson, 30. The younger son has never known his father outside of prison. “I have a few memories of him,” Dawan Jackson said. “I remember getting a haircut and getting chastised ‘cause I was playing in the car and knocked it out of gear.”

Owen alleged at the hearing that Franklin County prosecutors failed to give Howard’s trial attorney vital information, including witness statements, obtained by the FBI and fingerprint records that would have shown he was not guilty. “That is a smoking gun that destroys their case,” Owen said. But George Ellis, who handled the original case and now is chief counsel for Franklin County Prosecutor Ron O’Brien, said there is no evidence that guilty verdicts should be overturned. At one point, Ellis tangled with Kerby during cross –examination. “You’re guessing at a lot of things.” Ellis said to Kerby as he recounted investigative details of the old case. “I’ll be damned if I’m guessing here today.” Kerby shot back. “Someone’s life is at stake.”

Witness identification was key at both trials in 1977 because neither the murder weapon nor the $1,207 in stolen cash was ever found. Further, there was no film in the surveillance camera, and no fingerprints or other physical evidence positively linking Howard and James to the crime. Thus, the testimony of the late Robert Simpson, who owned a tire shop across from the bank, was key. Though Simpson later told Columbus police that he immediately identified the robber named “Tim” because he had been in his tire shop on many occasions, he told FBI investigators the day of the robbery that he did not recognize either of the robbers. Simpson’s FBI statement, uncovered recently through a Freedom of Information Act request, was not given to Howard’s and James’ attorneys at the time.