Judge overturns Durham man’s double-murder conviction; new trial ordered

ablythe@newsobserver.com jneff@newsobserver.comMay 27, 2014 

Darryl Anthony Howard leaves a Durham County courthouse on Nov. 13, 1992, after pleading not guilty.

1992 FILE PHOTO

— Citing misconduct by former prosecutor Mike Nifong and a Durham police detective, a judge on Tuesday ordered a new trial for a man locked up for 19 years for two murders he insists he did not commit.

Darryl Anthony Howard, who has maintained his innocence from the moment he was arrested, was convicted in 1995 of killing Doris Washington and her 13-year-old daughter, Nishonda.

The nude bodies of the two were found in 1991 inside their apartment in the Few Gardens public housing complex in east Durham.

The case – taken up by the Innocence Project, a nonprofit legal organization that has freed 18 wrongly convicted people from death row in its 22 years – casts a spotlight again on the Durham justice system. It renews questions about the integrity and fairness of prosecutors and police investigators in a city that took a bruising from its handling of the Duke lacrosse case.

“It is undisputed that there was and is no physical evidence connecting Howard to this crime scene or to these victims,” Superior Court Judge Orlando Hudson wrote in a sharply worded order released Tuesday.

Sperm was found on the teen and collected in an investigative rape kit. An autopsy showed that her mother had been sexually assaulted, according to court documents. Howard was charged in the homicides, but DNA tests excluded him as a match to the sexual assault evidence collected.

At trial, Durham police detective D.L. Dowdy testified that he never suspected that the murders involved sexual assaults and that he never investigated them as such.

Nifong, who was an assistant district attorney at the time, repeated that claim to the jury and suggested that the sperm on the teen was the result of consensual sex before the murder.

The claims by the prosecutor and investigator were contradicted by a police memo that Nifong and Dowdy had in their files, a document uncovered within the past decade by Innocence Project researchers and Jim Cooney, a Charlotte attorney working with them.

A few days after the bodies were found, police received a confidential tip that a drug gang had murdered Doris Washington over an $8,000 drug debt. The tipster said the killers raped the mother before killing her and that the daughter was raped and killed after unwittingly walking in on the scene.

Washington, 29, reputedly sold drugs and used cocaine in Few Gardens, a public housing complex that became so crime-ridden that the city tore it down a little more than a decade ago.

Nishonda was an eighth-grader at Holton Middle School.

Few Gardens, about 240 units stacked in red-brick, barracks-style buildings, was one of the city’s more blighted neighborhoods. Drug dealers and gang members had transformed the 16 acres in central Durham into a hub of drug dealing, prostitution and other illegal activities.

Howard had been arrested at the complex dozens of times for drug-related crimes. But he maintained that he did not kill Washington or her daughter.

‘The state’s theory’

In his ruling Tuesday, Hudson offered a brief synopsis of the 1995 trial of Howard in March.

“[T]he state’s theory of the case was that Doris sold drugs, that Mr. Howard’s role was to collect the money she received from selling and that Doris botched the deal and could not pay Mr. Howard,” Hudson summarized. “The State argued that Mr. Howard did not plan to murder Doris, but, when he did, he also had to kill Nishonda, who happened to walk in.”

Hudson added further, “The state’s theory was that Mr. Howard alone murdered Doris and Nishonda and that no sexual assaults were committed in connection with these murders.”

But that theory failed to note the call that came into the tip line shortly after the bodies were discovered inside a smoke-choked apartment.

Nothing about a sexual assault had been publicly revealed, giving credence to the tipster.

According to a Durham police department routing slip dated Dec. 1, 1991, the tipster said Doris and Nishonda Washington were “probably murdered” because Doris Washington “owed $8,000 to drug dealers from either Philadelphia or New York.”

The informant also stated that when the dealers came to get their money, “they first raped” the mother “before strangling her.” The tipster added that Nishonda “unknowingly walked in” on the scene, so they “killed her.”

A superior officer called Dowdy’s attention to the tip, writing, “There might be something to this. I don’t remember any public info on the rape.”

Hudson ruled that it was undisputed that Nifong failed to provide Howard’s lawyer with the police memo, evidence that could have helped cast doubt on the prosecution’s theory and point to different suspects.

Nifong, who was forced to resign as district attorney and disbarred because of his actions in the Duke lacrosse case, could not be reached for comment.

U.S. Supreme Court decisions hold that prosecutors must hand over all favorable evidence to defendants.

“This Court concludes that the State presented materially misleading and false testimony from Det. Dowdy’s testimony and that ADA Nifong made a materially misleading and false argument to the jury,” Hudson stated in his order Tuesday.

The judge’s ruling came a couple of months after Cooney and Barry Scheck, a founder of the Innocence Project, filed court documents asking for the conviction of Howard to be overturned.

New DNA evidence uncovered since the trial pointed to a career criminal known to be associated with the New York Boys, a gang of drug dealers who were in Durham in the 1990s, the attorneys contended in their request for relief.

They also highlighted the tip about the sexual assault and argued that withholding such information from the defense team at trial violated Howard’s due process rights.

‘Newly discovered evidence’

The recent, more sophisticated DNA tests showed that sperm from the rape kit compiled in the Doris Washington homicide matched that of a convicted felon, Jermeck Jones, whose criminal history features 35 convictions, including several assaults against women.

“Newly discovered evidence strongly suggests that law enforcement completely disregarded powerful and credible evidence pointing to other suspects in its prosecution of Mr. Howard, who has served nearly 20 years for a crime which mounting evidence now shows he didn’t commit,” Scheck said in a statement shortly after the request for a new trial was filed in March. “This evidence raises deeply disturbing questions about the lengths to which the state was willing to go to secure a conviction.”

Scheck and Cooney said Tuesday that they were pleased with Hudson’s ruling, but they declined to speak more broadly about the larger implications until speaking with Roger Echol, the Durham County assistant district attorney who is running unopposed in the November general election to be the next district attorney.

Efforts to reach Echol and Leon Stanback, the acting district attorney in Durham, were unsuccessful Tuesday.

The state has 30 days to appeal Hudson’s ruling.

If the state does not appeal, the defense team could move soon to have Howard released from prison as he awaits a new trial.

Blythe: 919-836-4948; Twitter: @AnneBlythe1

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