Darryl Howard and the rampaging prosecutor: Durham learns little from Duke lacrosse debacle

Durham District Attorney Mike Nifong
Former Durham County District Attorney Mike Nifong in 2007. (AP Photo/Gerry Broome, Pool)

When Darryl Howard was convicted of murder in 1995, he cried out “I didn’t do it!” then sobbed in open court. He has maintained his innocence ever since.

“As a defense attorney, there are times when you aren’t sure if your client did it, and there are times when you’re pretty sure he did it, but you defend him anyway, because that’s your job,” says Woody Vann, Howard’s trial attorney. “This case has always haunted me because I never believed that Darryl Howard committed those crimes.”

Howard was never going to win any citizenship awards. He was a low-level drug peddler, a petty criminal, and something of a nuisance. On several occasions he had been arrested for selling small quantities of drugs. He had also been cited for trespassing more than 70 times, many of those in Few Gardens, a housing project in Durham, North Carolina.

But for all his problems, there has never been much compelling evidence that Howard is a murderer. Howard was convicted of killing a woman named Doris Washington and her 13-year-old daughter Nishonda in November 1991. The two were found dead in their Few Gardens apartment. Howard was convicted both for their murders and for subsequently setting a fire to their apartment to cover up the crimes. Despite indications that both women had been sexually assaulted, no DNA or biological evidence connected Howard to the crime scene. He was convicted entirely on eyewitness testimony, much of which was vague, contradictory, or later recanted.

Now, newly discovered evidence further argues for Howard’s innocence. In court papers filed this week, the Innocence Project reveals that DNA testing of a rape kit taken from Doris Washington found some sperm that went undetected during the initial investigation. That sperm is a match to a career criminal, not to Howard. Attorneys for Howard have also uncovered evidence that prosecutors in the case may have withheld important exculpatory evidence, including a credible statement from an informant days after the murder who attributed the crimes to a local gang, not to Darryl Howard.

Discovery of the memo, which was known to police and should have been known to prosecutors, shows that the state failed to turn over relevant evidence pointing to Howard’s innocence. But the contents of the memo also suggest that Howard’s prosecutor not only put on perjurious testimony from a police investigator, he then used that evidence to give false statements in court himself.

Perhaps most interesting of all is just who that prosecutor was: Michael Nifong, then an assistant district attorney for Durham County. Nifong of course would later be appointed, then elected district attorney, and then make national headlines in 2006 when he falsely charged three Duke University lacrosse players with sexually assaulting a stripper. In 2007 Nifong was disbarred for his handling of evidence in that case. He was also found in contempt for making false statements about the case in court.

But Howard’s incarceration spans a period of time over which several scandals have raised questions about the dispensation of justice in Durham County. In 2010, a report commissioned by the North Carolina attorney general, which followed a prior investigation by the Raleigh News & Observer, uncovered widespread corruption and malfeasance in the state’s crime lab, including in many cases from Durham County. Fallout from that scandal contributed to the removal of Nifong’s successor, District Attorney Tracey Cline, in 2012. Prosecutors are rarely ever removed from office for misconduct. For it to happen twice, in the same county, within five years is extraordinary. (The Washington Post was unable to reach Mike Nifong or Tracey Cline. The office of interim Durham District Attorney Leon Stanback did not respond to several requests for comment.)

But missing from all of those scandals was any effort to assess the breadth and scope of their reach. Even after Nifong and Cline were removed from office, public officials in Durham County showed little interest in an audit or investigation into the damage they may have done. Part of that may be due to Durham County’s politics and the lingering legacy of the Duke case. With its mix of academic progressives and working class blacks, Durham is arguably the most left-of-center county in the state. (In the 2012 presidential election, Obama received 76% of the vote in Durham County — his best showing in the state.) The lacrosse case of course featured several well-to-do white men accused of raping a low-income black woman. That set the stage for an unlikely lineup up adversaries, as progressive groups, academics, feminists, and racial justice activists sided with the overzealous prosecutor, while the political right lined up behind the accused.

But prosecutorial misconduct is rarely a one-off phenomenon. If it has happened once with a prosecutor, or within a particular office, it has probably happened before. And in Durham, a county that’s 40 percent black and 7.5 percent Latino, the victims in those other cases are far more likely to be people like Darryl Howard than wealthy white students on a college lacrosse team.

 

The Investigation

In the early hours of November 27, 1991, firefighters responding to reports of smoke at the Few Gardens complex found the bodies of 29-year-old Doris Washington and her 13-year-old daughter Nishonda. Both had been severely beaten. Nishonda had been strangled to death. She also had scratches and tears on her mouth and abrasions on her back. Her mother Doris died of a blow to the abdomen that tore her liver and caused massive internal bleeding. Doris Washington too had bruises and abrasions over much of her body.

There was also evidence that both women had been sexually assaulted. Both were found nude, lying face down on a bed. Doris was found with what the medical examiner called “blood-tinged fluid” in her vagina. Her vagina had also been lacerated near her cervix. The medical examiner concluded that the laceration could only have been made by something that had been inserted into her vagina. The autopsy revealed no sperm in Doris, although 20 years later, a crime lab would examine a vaginal swab taken at the time and find enough intact sperm to produce a DNA profile. As for Nishonda, the medical examiner found semen in both her rectum and her vagina, and estimated that it had been deposited within the previous 24 hours.

A few days after the murders, Durham police received a compelling tip from an anonymous informant. The tipster told police that Doris and Nishonda “were probably murdered” because Doris owed around $8,000 to some drug dealers “from either Philadelphia or New York.” The informant added that dealers had left four bags of drugs in Doris’ apartment, per an agreement with her. They returned to find that the bags were missing drugs. According to the informant, the dealers then raped and strangled Doris. When Nishonda “unknowingly walked in,” they did the same to her.

The informant’s tip was especially credible because at the time the police received it, the media hadn’t yet reported that either woman had been sexualy assaulted. In fact, a handwritten note on the memo’s ledger from another officer directed at Det. Darryl Dowdy, the officer who investigated the murders, read: “Dowdy: There may be something to this. I don’t remember any public info on the rape.”

The note was also credible because at the time, a gang called the New York Boys were building a drug pipeline down the east coast, and had begun to infiltrate Durham. Part of their distribution involved cutting deals with the occupants of housing projects to either sell drugs for them, or to allow their apartments to be used as storage or drop points. Few Gardens was part of their plan. Just a few years later, seven of the New York Boys would be indicted for a series of murders in Durham resulting from an ongoing fight over turf.

Doris Washington was one of the Few Garden residents who was both selling drugs for the New York Boys and allowing them to use her apartment. She also had cocaine in her system when she was murdered. In a particularly tragic twist, local newspapers reported in 1992 that in the days leading up to the murders, Nishonda Washington had asked for help, both from the director of a local community center and from the county’s Department of Social Services. She told them her mother owed money to a group of drug dealers. The community center director told Durham’s Herald-Sun that the girl “thought she was going to be killed.”

But Durham police had a difficult time tracking down a suspect. Months passed with no arrests. The police put out Crime Stoppers alerts for information about the killings. By March 1992, North Carolina Gov. James Martin issued a proclamation promising a $10,000 reward for any tip leading to the arrest of Doris and Nishonda Washington’s killer or killers.

 

The Case Against Darryl Howard

About six months after the murders, Det. Dowdy visited Darryl Howard in the hospital. Ironically, Howard was in the hospital because he himself had been shot in the back several times by a member of the New York Boys. He lost a kidney in the attack. According to papers filed by Howard’s attorneys, Dowdy wasn’t interested in investigating the attack on Howard, but instead wanted to ask Howard about two other shootings that may have been committed by the same member of the gang. Howard grew frustrated at Dowdy’s lack of interest in his own shooting, and discussion between the two grew heated. Howard had by then heard more about the murder of Doris and Nishonda Washington and, according to court transcripts, told Dowdy during that visit that he believed the New York Boys had committed the crimes.

For reasons that are unclear, that seemed to put Dowdy onto Howard for the Few Garden murders. Several more months passed with no arrests. Then in November 1992, nearly a year after the murders, Dowdy had Howard arrested and charged with two counts of first degree murder for the deaths of Doris and Nishonda Washington, plus an additional charge of arson for attempting to burn down the apartment. At trial, the murder charges were reduced from first- to second-degree.

The case against Howard was based on testimony from a number of eyewitnesses. According to Nifong, Doris Washington sold drugs for Darryl Howard, and Howard killed her because she owed him money. When Washington’s daughter walked in during the murder, he had no choice but to kill her too. He then called his brother Harvey, who helped him set fire to the apartment.

But the eyewitness accounts that were supposed to back up this narrative were inconsistent, often contradictory, and in most cases came from witnesses with credibility problems of their own. Moreover, there were no eyewitnesses who claim to have seen Howard actually commit any of the crimes for which he was charged. Instead, the state put on witnesses who claimed to have seen Howard arguing with Doris Washington on the day she was killed, or who saw him near the apartment. Howard and Washington did know one another, and did argue, but Howard’s attorneys say their arguments were over Washington’s methods of drug dealing, which sometimes involved recruiting women into the drug businesses, then encouraging them to prostitute themselves. One of those women was Howard’s girlfriend at the time.

Among the state’s lineup of witnesses:

  • One friend of Washington’s who lived in the same apartment complex — and also had an extensive criminal record — said she heard Howard threaten to kill Washington shortly before the murders.
  • Two other witnesses, both of whom knew Howard at the time of the murders, testified that they had seen him in or around Doris Washington’s apartment shortly before she was killed. But both of those witnesses also gave statements to police shortly after the murders in which they only claimed to have seen a man. They didn’t mention Howard by name. It seems odd that they wouldn’t recall that detail until a year or more later.
  • Several witnesses also claimed to have seen Howard leaving Doris Washington’s apartment while carrying a TV on the night of the murders. This fit with the state’s theory that Howard had stolen property from Washington to compensate himself for the money she owed him. The problem: There was no TV missing from Doris Washington’s apartment.
  • Some witnesses said they saw Howard walking with a man near Washington’s apartment shortly before the murders, while others said it was a woman.
  • One witness who called seeking the Crimestoppers award said she heard Howard loudly proclaim at a bar, “I killed the bitch,” in the days following the murders. But no one else at the bar came forward to say they’d heard him say anything of the kind.
  • Another witness, who also had a felony record, also claimed to have heard Howard threaten Washington. But years later he recanted, claiming that Det. Dowdy had coerced him.

In fact several witnesses claimed to have been coerced by Dowdy before, during, or after the trial. Given that the state’s entire case rested on statements from witnesses, those accusations are significant. Another of them was Angela Oliver, whom Nifong at one point called his “most important witness.”  Oliver implicated Howard in a recorded statement she gave to police in October 1992, shortly after she had been arrested for prostitution.

While locked up, Oliver told the police that Doris Washington owed Darryl Howard money, and that hours before the murders, she and Howard had gone to Washington’s apartment to collect. She said that Washington couldn’t pay. Oliver said Howard then threatened to kill Washington if she couldn’t produce either his money or his drugs when he returned later that evening. When they returned later that night with Howard’s brother, Harvey, Oliver told police that she saw Howard strike Washington with his gun. She said she then stood outside the apartment, where she heard Washington scream. According to Oliver’s statement, Howard then told his brother that they “had to burn them up,” and the two set the house aflame.

But at trial Oliver took it all back. She said that almost all of the statement she gave to police in October 1992 was false. Instead, she said Det. Dowdy had threatened to charge her as an accessory to murder unless she agreed to implicate Darryl Howard and his brother. Oliver’s recantation was abrupt enough that the state actually had to treat her as a hostile witness. At one point she said in court, “{y}ou can’t force me to come and tell something I didn’t see.”

 

A Hitch in the State’s Case

Judging from the note left in the ledger of the internal memo about the statement from the anonymous informant, it seems fair to say that the police at least initially believed that Doris and Nishonda Washington were sexually assaulted before they were murdered. Their injuries certainly suggest as much, as does the fact that they had been stripped nude. There’s also another document obtained by the Innocence Project that appears to have originated from the DA’s office: a handwritten note that refers to the fact that Nishonda had taken a shower prior to the attacks, which would mean that the semen found in her anus likely came from an attacker. The note adds for emphasis, “whoever did this had anal intercourse w/ her.”

Darryl Howard. Photo courtesy of Howard's family.
Darryl Howard. Photo courtesy of Howard’s family.

But about seven months after Howard’s arrest, Nifong’s office ran into a problem: Results from the DNA testing on the sperm found in Nishonda Washington’s rectum came back, and they excluded Howard as the source.

Such test results might have persuaded a conscientious prosecutor to at least consider the possibility that he had charged the wrong man, especially considering the statement from the informant. At the very least, it would seem to mean they needed to change their theory, and consider the possibility that Howard didn’t kill the women by himself. But Nifong proceeded with the case against Howard as planned, trying him and only him for murders and the arson. (Howard’s brother Harvey was initially also charged for the arson; that charge was later dropped.) The state proceeded on the theory that either the women weren’t sexually assaulted, or that if they had been, the assault or assaults weren’t connected to the murders.

At trial, Det. Dowdy tried to explain away the DNA results. He told jurors that the 13-year-old Nishonda Washington had run off with her boyfriend the week before the murders. So the sperm in her rectum, the state theorized, must have come from the boyfriend. This alleged boyfriend never provided an affidavit, was never asked to testify, and Dowdy never explained how he discovered that the two had been together. Nifong returned to Dowdy’s testimony about the boyfriend in his closing argument, in order to dissuade the jury from considering that the girl may have been sexually assaulted by the same man or men who killed her.

“I would submit to you that a 13-year-old who can be gone for five days with her boyfriend is not somebody for whom sex is going to be an unknown subject,” Nifong said. The prosecutor who a decade later would be hailed as a champion for victims of sexual assault was here suggesting it was more likely that a 13-year-old had engaged in anal and vaginal intercourse than that she had been raped.

Dowdy also testified at trial that his murder investigation never even considered the possibility that the women had been sexually assaulted, a point Nifong also reemphasized in his closing argument. This is clearly contradicted by the internal memo about the statement from the informant, the note written on the memo from another officer to Dowdy about how the “rapes” weren’t yet public information, the handwritten note about the shower, and the fact that Dowdy himself had written up an affidavit to collect Howard’s DNA for comparison to any DNA profiles that might come from the rape kits.

But the more disturbing component in all of this is the strong possibility that the informant memo was never turned over to Howard’s attorney. Woody Vann, Howard’s trial attorney, says he destroyed his file on Howard’s case years ago. (Attorneys often throw out old case files, and Howard was convicted nearly 20 years ago.) Because of that, Vann says he can’t say “with 100 percent certainty” that Nifong never gave him the file. But he adds, “This was a double homicide. That memo would have been powerful exculpatory evidence, probably enough for an acquittal. I have to say that if it had been turned over, I certainly would have seen it, and I certainly would have used it.”

Vann conceded at trial that Howard and Washington knew one another, but noted there was no evidence that Washington ever sold drugs for Howard, as the state claimed. Vann also pointed out there was no biological evidence from Howard found at the scene, no incriminating evidence found on Howard (he was arrested the day after the murders for trespassing), and no witnesses who could say they saw Howard committing the crimes.

The jury wasn’t convinced. They found Howard guilty. He was sentenced to 40 years in prison for each murder, and another 40 years for the arson. His appeals were unsuccessful. In the meantime, Mike Nifong was elected Durham County District Attorney. And James E. Hardin, Jr. — the DA who oversaw Nifong at the time — went on to become a judge.

 

 “The Durham Way”

There is of course a chance that Mike Nifong did turn the informant memo over to Woody Vann, and that for some reason it just never got to him. It’s also possible that Vann himself overlooked the memo, in which case he’d be guilty of ineffective assistance of counsel — which still gives Howard a strong argument for a new trial. Because Vann’s file no longer exists, there’s simply no way to know for sure.

But Barry Scheck of the Innocence Project points to the Duke lacrosse case, and what the public would later learn about Nifong. “When you see that kind of misconduct once, it has likely happened before,” Scheck says. “Behavior that egregious is typically the work of a serial offender.”

K.C. Johnson, a history professor at Brooklyn College in New York who co-wrote a book about the Duke lacrosse case, agrees. “I’m absolutely certain that Mike Nifong didn’t just wake up one day during the Duke lacrosse case and decide to start committing misconduct. He must have done it previously.”

It is also at least possible that while Det. Dowdy and the Durham police department clearly knew about the memo, they never turned it over to Nifong, in which case Nifong would look more incompetent than malicious. But this was a major piece of exculpatory evidence in a murder trial. And because it was never turned over, Nifong elicited false testimony from Dowdy on the witness stand. Nifong reiterated those statements in his closing argument. Nifong was either complicit in the lie, or was deficient enough in his job that the police department and Dowdy felt they could get away with lying to him. Neither scenario reflects well on Nifong.

But events since the Duke lacrosse case also point to a broader problem in the Durham District Attorney’s office, the Durham police department, even to the state of North Carolina as a whole.  As a defense attorney in nearby Wake County put it, “North Carolina has a lot of problems. But Durham has problems even for North Carolina.”

“It has always been an odd DA’s office,” says K.C. Johnson. “There’s a lot of turnover. The ones who stick around for a long time — people like Nifong, Cline, or Freda Black — tend to be where you find the problems. I’d say that at best, they were indifferent to their ethical obligations.” (Freda Black was a longtime prosecutor in the office and a political rival of Nifong — she ran against him in the 2006 Democratic primary.)

In an alternate universe, the mixed-up politics of the Duke lacrosse case — with progressive groups and personalities largely lining up with the prosecutor, and conservative groups and personalities largely lining up with the defense — might have presented a unique opportunity. Once it was clear that the players were innocent, and that Nifong had lied and withheld evidence, conservatives could perhaps have had their eyes opened to the inadequacies of the criminal justice system, and been brought on board to move for reform. Progressive groups could perhaps have seen that the DA regime they had been supporting had duped them, and realized that if the office culture could produce the sort of behavior apparent in the Duke case, it was likely affecting how prosecutors approached their other cases, most of which involved people from Durham’s low-income and minority communities.

But that isn’t how it played out. National personalities on the right like Sean Hannity, Bill O’Reilly and Rush Limbaugh railed about the case for months, then all but ignored the criminal justice system once it was over.

When the Duke lacrosse case first began to break, Duke President Richard Brodhead asked Duke law professor James Coleman to write up a report on the lacrosse team. Coleman, who is black, came back with a report that contradicted the negative portrayals of the team in the media and among civil rights and feminist activists. He also became a vocal critic of Nifong and the culture within the Durham DA’s office.

That report earned Coleman praise on the right. But he now says he’s disappointed with how supporters of the lacrosse team simply moved on once the case was resolved. “I had hoped that the people of influence who were attracted to this case — the players and their families, the conservative groups, the commentators who were drawn to the injustice — I had hoped they would have used it as an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.”

It wasn’t any better on the other side. The North Carolina NAACP and faculty at both Duke and the historically black North Carolina Central University cast early lots with Nifong, who then trumpeted the case to help him win his first election for district attorney. As it became increasingly clear that Nifong had overstepped his authority, the state NAACP urged the public to remain silent so as not to bias the investigation. Critics like Johnson noted at the time that keeping quiet wasn’t exactly the sort of activism for which the group was known, and that the group had supported Nifong despite clear evidence that the case embodied criminal justice abuses that the state NAACP had condemned in other cases. The “Group of 88,” a collection of academics from Duke University, took out a full-page newspaper ad early in the investigation that broadly condemned a culture of racism and sexism on campus. Some signatories to the ad continued to publicly condemn the players even after it was clear that they were innocent.

Of course, the initial reaction from civil rights groups should be considered in the context of the way blacks have been traditionally been treated (and are still treated) in the criminal justice system, as well as the history of racial violence and discrimination in the south. In particular, there’s a long and sordid history around interracial sex, interracial rape, and the legal system’s insufficient protection of the rights of black people in such matters, from masters taking liberties with their slaves, to miscegenation laws, to shameful cases like the lynching of Emmett Till.

But it’s the reaction from these groups after it became clear that Nifong had abused his authority, and that the lacrosse players were innocent, that’s harder to justify. Instead of recognizing that Durham County may have a problem in the DA’s office, some advocacy groups continued to support Nifong. Some shifted their attention from the now-proven-false charges to the alleged boorish but legal behavior of lacrosse players. Some just moved on to other things. But few, on the left or the right, considered the possibility that there may be other victims.

“I think the left was indifferent,” Coleman says. “And that’s too bad. Because based on the work we do in wrongful conviction cases, it was a chance to make people aware of the fact that what happened in that cases wasn’t unusual, but fairly common. It was a chance to look at the conduct of public officials, and to learn form it.”

K.C. Johnson adds, “I think the NAACP would have been in a unique position to have demanded the kind of review that could have exposed other injustices. I was disappointed, but not surprised that there was little support for that. There was this feeling of we must move on. It was really a missed opportunity. The whole country was watching, and you had this opportunity to shine on a light on prosecutor and police misconduct, problems that disproportionately affect minority communities. But the civil rights groups that were opposed to any of that happening.”

New York Times columnist Peter Applebome made a similar point in 2007, as the case died down. “{T}he news media, and civil rights and women’s rights organizations who were so intoxicated by the story of bad white boys that they missed the real outrage: how prosecutors can railroad innocent people, nearly all of them without the {lacrosse} students’ resources or abilities to fight back.”

To their credit, two of the accused lacrosse players seemed to understand what was at stake better than anyone. At the press conference shortly after the players were declared innocent, Reade Seligmann reflected on what he had just gone through:

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves. So rather than relying on disparaging stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it. The Duke lacrosse case has shown that our society has lost sight of the most fundamental principle of our legal system: the presumption of innocence.”

Colin Finnerty made a similar observation,  “There seem to be some flaws in the legal system that should be addressed, the fact that in North Carolina there are no recordings of the grand jury, and to establish checks and balances on district attorneys.”

 

A Break for Darryl Howard

The Innocence Project took on Darryl Howard’s case in 2006, along with local defense attorney James Cooney. Locally renowned for representing the Duke lacrosse players, Cooney also represented Alan Gell, a death row inmate who was retried, acquitted, and released in 2004 after Cooney discovered that prosecutors had withheld critical exculpatory evidence in his original trial.

In 2010, Howard’s new legal team then sent the rape kit taken from Doris Washington to a lab for more advanced DNA testing. That lab found sperm on a vaginal swab that the North Carolina crime lab failed to find 15 years earlier. The lab was then able to create a DNA profile of the sperm that excluded Darryl Howard as the source.

The following year Howard’s attorneys obtained a court order to run the DNA profile through CODIS, the FBI’s digital index of DNA profiles. CODIS returned a hit on Jermeck Jones, a man with more than 30 prior convictions. Pertinent to Howard’s case, Jones’ record includes convictions for drug distribution and for assaulting women. He was 15 years old at the time of the Washington murders, putting him within the age range of the members of the New York Boys. Howard’s new attorneys also asked the same lab to retest the DNA found in Nishonda Washington. The lab was able to exclude both Darryl Howard and Jermeck Jones as the source of the sperm, but unable to create a full profile to run through CODIS.

The new testing conclusively showed that two separate men had sex, or possibly raped, Doris Washington and her daughter shortly before the two were murdered. One of them was Jermeck Jones. Neither of them as Darryl Howard.

By this time, Mike Nifong had resigned from office after the Duke lacrosse scandal. One of his former assistants, Tracey Cline, had won the election to replace him. According to Scheck, Howard’s attorneys had an oral agreement with Cline that neither party would approach Jermeck Jones about the DNA tests without prior notice to the other side. Yet when Howard’s attorneys sent an investigator to question Jones, he had already been made aware of the test results. “We were surprised that someone had already told him,” Scheck says.

Jones told the private investigator he had never had sex with Doris Washington. But bizarrely, he said he did have sex with Nishonda Washington, and on the night before she was killed. When asked how his story could be reconciled with the results of the DNA tests, Jones said that Nishonda must have somehow transferred his sperm from her rectum into her mother’s vagina.

Howard’s attorneys brought all of this to Tracey Cline. But the new DA and former Nifong “top deputy” refused to reopen the case or conduct any further investigation.

 

The Nifong legacy

Several months after Nifong was disbarred in 2007, Tracey Cline announced in February 2008 that she’d be seeking her former boss’s position. Cline was not only Nifong’s top assistant, she was also his second chair in the Duke case. She denied playing a large role in the case, although advocates for the players point to bar disciplinary transcripts that suggest otherwise. Nevertheless, her connection with Nifong wasn’t enough to sully her reputation with the voters of Durham. In 2008 Cline was elected to take over for her mentor. She invited him to her swearing-in as an honored guest.

But shortly before Cline took office, a panel of judges from the North Carolina Court of Appeals threw out burglary, robbery, kidnapping and attempted sexual assault charges against Frankie Washington, a case tried by Cline. Washington had been held in jail for four years before his trial, and there’s strong evidence that Cline may also have convicted the wrong man. In overturning Washington’s conviction, Judge Douglas McCullough wrote that the mess could have been avoided “if the state had exercised even the slightest care during the course of this prosecution.” When he later freed Washington, Durham Superior Court Judge Orlando Hudson added, “People are starting to question, in Durham, the degree to which the prosecutor’s office and the police department are tracking down cases when there are leads that other people have committed the crimes.”

It was the first of many rebukes to come. Just a month after Cline was sworn in, Hudson threw out the charges against another man, Derrick Allen, finding again that Cline had withheld potentially exculpatory evidence at his trial.

Then in 2010, Attorney General Roy Cooper ordered an investigation of the North Carolina state crime lab. The resulting report was damning, finding  that crime lab analysts had altered or withheld exculpatory information in at least 230 cases over a 16-year period. Three of those were death penalty cases in which the accused had already been executed.

The investigation by the Raleigh News & Observer had uncovered even more. The paper found that prosecutors and police pressured crime lab analysts to produce results that helped them win convictions. The pressure wasn’t subtle. A training manual for crime lab analysts gave tips on how to boost their “conviction rate,” while referring to experts who testify for criminal defendants as “defense whores.” In some cases, when analysts got test results that were unfavorable to prosecutors, they would repeat the tests until they got the results prosecutors wanted. Many times, defense attorneys were never notified of how many tries it took to get the test results “right.” To illustrate the point, the paper found a video of two blood spatter analysts altering and redoing an experiment over and over until they could produce the result that prosecutors were looking for.  To celebrate their success, the two analysts gave one another a high-five.

The crime lab scandal would soon become a factor in the fall of Durham’s second consecutive elected district attorney. In December 2010 and August 2011, Judge Hudson threw out two more cases that Cline had tried. In both cases, Hudson cited yet more misconduct on the part of Cline, including more instances in which she failed to disclose exculpatory evidence. In one of the cases, Cline blamed the now-beleaguered crime lab.

The following September, the News & Observer published an extensive investigation of Cline herself, going back to her days as an assistant district attorney under Nifong. The paper found that Cline’s behavior had been questioned by judges in at last six cases, and that she had “misstated facts to judges” and “not provided evidence favorable to defendants.” Two months later, Hudson rebuked Cline in yet another case, finding that she had intentionally delayed presenting a murder case to a grand jury long enough for the victim’s remains to be cremated, then misled defense attorneys about the matter for months.

Then it all got surreal. Three days after, in December 2011, Cline accused Judge Hudson of corruption, and requested he be removed from all criminal cases in Durham County. She specifically requested that he be removed from a coming hearing for Mike Peterson, the novelist, newspaper writer, and former Durham mayoral candidate convicted in 2003 of murdering his wife. The prosecutor in that case was former District Attorney James Hardin, who had supervised both Cline and Nifong, and had since become judge. (As an added twist, Peterson was a former newspaper columnist who had been critical of Hardin.)

On December 5, 2011, Cline made her case against Hudson in a special hearing before Superior Court Judge Carl Fox. Cline bizarrely accused Hudson of orchestrating a vast conspiracy to bring her down, one which included a number of defense attorneys, as well as reporters and editors at the Raleigh News & Observer. She subpoenaed more than 50 people, including court clerks, defense attorneys, other active and retired judges, staff from the News & Observer, and Hudson himself. As the newspaper put it, all told, Cline had subpoenaed “a considerable part of Durham’s legal community.”

Fox ruled against Cline, as did another judge the following month when she made the same accusations in another case. In a blistering opinion, Judge Hudson later ordered a new trial for Peterson, citing an investigation which found that forensic analyst Duane Deaver had lied on the stand about his qualifications and about the scientific reliability of his blood spatter analysis. Deaver’s testimony was critical in the state’s argument that Peterson’s wife died in a homicide, not an accident.

In January 2012, defense attorney Kerry Sutton filed a complaint against Cline, citing her odd behavior and the multiple findings of misconduct against her. Six weeks later, Superior Court Judge Robert Hobgood removed Cline from office, finding “clear, cogent and convincing evidence” that she “brought the office of the Durham County District Attorney and the entire Durham County justice system into disrepute.” Hobgood’s order was later upheld by the North Carolina Supreme Court.

In a system where prosecutors routinely get away with misconduct, even Mike Nifong’s removal from office was almost unheard of. Now it had happened again.

 

Looking for more Darryl Howards

Scheck, who filed Darryl Howard’s petition for a new trial on Wednesday, says the fate of other possibly innocent people shouldn’t rest on organizations like his finding and taking their cases. “We need an audit,” he says. “We need a thorough, comprehensive audit of cases in Durham County to find out how many other innocent people may have been affected by the culture in that office. It’s the only way to get to the bottom of this.”

Both James Coleman and K.C. Johnson agree. “It was disappointing that it never happened,” Johnson says. “But it wasn’t surprising. There was just no constituency for it.” Coleman says the audit needs to be broader. “I think we absolutely need a review, not just in Durham, but across the entire state.”

As for Howard, Scheck says he’s hopeful that interim Durham County District Attorney Leon Stanback will take another look at the case. “We’d love to talk some more with him,” Scheck says. “We’d much rather work with prosecutors than against them.”

Meanwhile, Stanback, who was appointed to fill out Cline’s term, has said he has no intention of running for the position in the next election. So there will be a campaign to replace Tracey Cline. And Durham County voters will be presented with a stark set of choices in the Democratic primary.

On the one hand, there’s Roger Echols, currently Stanback’s top assistant, and formerly an assistant to Cline. Echols is running on a fairly traditional law-and-order platform that emphasizes crime reduction and victim’s rights. Echols’ main opponent is Mitchell Garrell, a former Durham assistant district attorney whom Cline fired in 2010. Garrell was dismissed shortly after he had released evidence to defense attorneys that reflected unfavorably on Cline in a child abuse case. The defendant had already been granted a new trial, and Garrell’s disclosures to the defense were consistent with state law. But the dismissal of a long-serving, well-respected prosecutor drew some attention. Garrell is now running on a reform platform, promising more accountability, including working with defense attorneys in cases where there are genuine questions about the integrity of a conviction.

While Echols would continue the Nifong-Cline line of succession, it’s worth noting that he hasn’t been implicated in any of the cases in which his former boss has been accused of misconduct. But it is hard not to notice that Durham voters will be choosing between a guy that Cline hired, and a guy that she fired — after he helped expose some of her mistakes. And given his platform, it’s certainly safe to say that Garrell would be a break from the past.

The outcome of the election could determine whether there’s a genuine effort to see if there are other Darryl Howards languishing in North Carolina prisons, or whether Durham will opt to simply move on from Tracey Cline, without any attempt to assess the damage she may have done.

Just as the county did with Mike Nifong.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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