N.C. judge overturns Darryl Howard conviction, finds prosecutor misconduct by Mike Nifong

In March, I posted a long report on the Darryl Howard case. There’s a lot to this story, but here’s a quick and dirty summary: Howard was convicted in 1995 for murdering a woman and her 13-year-old daughter in a Durham public housing complex. Despite evidence that both women had been sexually assaulted, there was no physical evidence linking Howard to the crime scene. In post-conviction, Howard’s attorneys discovered a police memo describing a tip indicating that the murders were the work of a gang called the New York Boys. The tip seemed particularly reliable because it referred to the fact that the women had been raped, a piece of information that wasn’t public.

The memo was found in both the police file and the file of District Attorney Mike Nifong. But there’s no evidence it was ever turned over to the defense. When DNA testing of sperm found in the daughter excluded Howard, Nifong proceeded with the case as if the sexual assaults weren’t part of the crime.

In an opinion released today, North Carolina Superior Court Judge Orlando Hudson overturned Howard’s conviction. Hudson’s decision finds for the defense on every major claim. It’s a resounding repudiation of the way Nifong handled Howard’s trial.

Specifically, Hudson addresses the memo:

This memo is directly contrary to Det. Dowdy’s testimony and ADA Nifong’s closing argument at Mr. Howard’s trial that the homicides were “never” suspected to involve sexual assaults. The State has not submitted any explanation from Det. Dowdy or ADA Nifong as to why this memo is not directly inconsistent with Det. Dowdy’s trial testimony and ADA Nifong’s argument to the jury that the sexual assaults were never suspected as being connected to the homicides.

The December 1, 1991 memo documents information from a confidential informant that police received early on in the investigation that more than one perpetrator committed the crimes. The memo is directly contrary to the State’s theory at trial that the crimes were committed by a single perpetrator.

Evidence that the victims were sexually assaulted and murdered by more than one perpetrator, as indicated in this memo, is consistent with the post-conviction DNA test results identifying the sperm of two different men in the victims at the time of their deaths.

In addition, as set forth in Vann’s affidavit, the information in this memo “eviscerates the State’s theory at trial.” . . .

Det. Dowdy’s testimony that these crimes were never suspected to involve sexual assault was critical to the State’s theory that the DNA results that excluded Howard were irrelevant. Had the truth about the fact that the police did suspect these cases not only involved sexual assault, but also rape, this would have undremined the State’s theory at trial of the case and revealed Det. Dowdy’s testimony to be false and misleading . . .

In addition, the State has conceded that the informant memo was found in a file maintained by the Office of District Attorney, and specifically in the “screening” section of that file.

Hudson then takes aim at Nifong, noting that Nifong not only put on materially false and misleading testimony from Dowdy, but also made a false and misleading argument to the jury. Hudson then quotes a portion of that argument:

This admission means that this information was known to the Office the District Attorney during Mr. Howard’s prosecution.

. . . despite the fact that this case was never investigated as a sexual assault and it was never suspected to be a sexual assault [defense counsel] wants to make it a sexual assault and why, because he knows the defendant never had sex with Nishonda or Doris. So, if he makes you believe the killer was somebody who had sex with [them] then obviously it couldn’t be the defendant.

Nifong and Dowdy instead speculated that the 13-year-old daughter hadn’t been raped, but instead had been sexually active within 24 hours of her murder with a boyfriend that they never produced. Years later, Nifong would attempt to prosecute innocent men for a rape that never happened. Here, he prosecuted a likely innocent man by pretending two rapes never happened.

Hudson then adds, “Based on a review of the State’s Answer and exhibits, the state has presented no evidence that either Det. Dowdy or ADA Nifong were unaware of the informant memo; rather, the State concedes that both were aware of its existence.” He concludes that Nifong’s and Dowdy’s violation of Howard’s “Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights” was prejudicial.

This is a rather thorough rebuke. And as noted previously here at The Watch, it comes at a time when author William Cohan has just written a book and is in the midst of a media tour that are both transparent attempts to rehabilitate Nifong’s reputation from the damage inflicted during the Duke lacrosse case.  But prosecutorial misconduct is rarely a one-off phenomenon. As I documented in my initial story on Howard, there’s evidence that the Durham DA’s office has had a serious and longstanding culture of misconduct. But an eagerness to “move on” from the Duke case has prevented any thorough assessment of that culture, or any effort to look into how many innocent people may have been victimized by it and help those people get their convictions overturned. Cohan’s book — and the praise heaped upon it by media outlets like NPR, the New York Times, the Economist and the Wall Street Journal — will make this all the more difficult.

So too will the results of the primary election in Durham earlier this month. The two outsiders who ran on platforms of reform were defeated by Roger Echols, currently an ADA and a former top deputy to disgraced former DA Tracey Cline, who herself was Nifong’s mentee. I don’t know of any specific allegations against Echols integrity, and have no evidence that he has committed misconduct. He is, however, the legacy to the Nifong-Cline line of DAs. And while his challengers campaigned on reform, the Raleigh News & Observer reports that Echols campaigned to “work more closely with law enforcement.” That would be the Durham Police Department, recently found to have been paying “conviction bonuses” to drug informants, and which was the subject of a scathing recent profile in Salon.

So the good news today is that Howard will at the very least get a new trial. The bad news is that any systematic effort to look for more Howards seems a lot less likely now than it was two months ago. And even then, it wasn’t very likely.

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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Radley Balko · May 27, 2014