Innocence Project co-founder calls for audit of all Nifong cases

ablythe@newsobserver.comJuly 11, 2014 

— Two men with a wealth of knowledge about wrongful convictions – an attorney who works with the Innocence Project and a North Carolina man who spent 19 years in prison for a murder and rape he did not commit – stood outside the Durham courthouse Friday and called for an inquiry into all cases former Durham District Attorney Mike Nifong tried.

Inside the courthouse, Superior Court Judge Orlando Hudson had just described a Nifong case from 1993 as one of the “most horrendous” prosecutions he had seen in his 34 years on the bench.

Despite DNA evidence that pointed to other culprits, Nifong pushed ahead in 1993 with a murder case against Darryl Howard, who has maintained he was wrongfully convicted.

Hudson in May vacated the two second-degree murder verdicts against Howard in the homicides of Doris Washington, 29, and her 13-year-old daughter, Nishonda, in a Durham public housing complex.

At Friday’s hearing, Hudson said he will grant bond for Howard if the N.C. Appeals Court lifts a stay that is keeping him in prison. The Durham district attorney’s office had won the stay after announcing that it is appealing Hudson’s May ruling.

Defense attorneys say the Howard case has echoes of the Duke University lacrosse prosecution that ended Nifong’s career as a district attorney and lawyer.

Barry Scheck, head of the Innocence Project, and Darryl Hunt, a Winston-Salem man exonerated after serving 19 years in prison for murder and rape that he did not commit, said Howard’s case suggests a broader problem in Durham.

They called for an audit of all of Nifong’s cases and the establishment of inquiry commissions similar to others in Texas and New York that look into patterns of prosecutorial misconduct.

“I pray that the DA will take a step and do the right thing and create an integrity unit and investigate all the past cases,” Hunt said.

Hudson looked down from the bench Friday and questioned why prosecutors were appealing his May decision to vacate the convictions.

The judge had found that Nifong and Durham police withheld crucial evidence from Howard during his 1993 trial – statements that could have bolstered the defendant’s claims of innocence.

The contentions of prosecutorial and police misconduct were brought to Hudson by Charlotte attorney Jim Cooney and Scheck. They took up Howard’s case several years ago.

DNA and other evidence

DNA from rape kits performed on both Durham homicide victims excluded Howard as a match. Tests by the Innocence Project pointed to a different culprit – a convicted felon with a history of assaulting women, who was a member of the New York Boys, a gang known for trafficking drugs in Durham during the late 1980s and early 1990s.

When the DNA did not match Howard, Durham detective D.L. Dowdy testified at the 1993 trial that he never suspected the murders involved sexual assault – a claim that Nifong, an assistant district attorney at the time, repeated to the jury.

But Innocence Project researchers turned up a police memo from four days after Washington and her daughter were killed that contradicted the claims by the detective and Nifong.

A confidential informant called Crime Stoppers shortly after Washington and her daughter were found dead at a Few Gardens public housing unit in 1991 and said the victims had been sexually assaulted and murdered because the mother, a known drug user, owed $8,000 to drug dealers from “either Philadelphia or New York.”

‘Smoking-pistol memo’

A note was written about the tip and included in the police file. That note was mentioned Friday as the defense team lobbied for Howard to be released from prison on bail as prosecutors challenged Hudson’s May ruling.

“We know in the prosecution file that there was a smoking-pistol memo by an informant,” Scheck told Hudson. “The new DNA evidence is extraordinary. The smoking-pistol memo that should have been disclosed is extraordinary.”

Nifong was forced out of the Durham DA’s office and disbarred in 2007 after the State Bar Disciplinary Committee voted unanimously to strip his law license because of misconduct in the Duke lacrosse case.

Nifong also served a day in jail and was fined $5,000 for making false statements in court related to the Duke case.

“Mike Nifong has been disbarred and sanctioned for his conduct in the Duke lacrosse case for suppressing exculpatory evidence, and now we have proof he did it in this case,” Scheck said Friday.

He said Durham could use an inquiry like those in Texas and New York.

In Texas, amid publicity about a wrongful conviction where the prosecutor failed to turn over evidence that could have helped a murder defendant, an Inquiry Commission looked at the case. Then, the current district attorney announced an audit of all cases.

In New York, the Brooklyn District Attorney’s office launched an inquiry in 2013 into cases handled by Louis Scarcella, a retired New York City homicide detective whom defense attorneys have blamed for scores of flawed convictions.

Awaiting appeals court

In June, after prosecutors announced their plans to appeal Hudson’s ruling overturning the 1993 verdicts against Howard, the N.C. Appeals Court granted a temporary stay for the prosecution, putting the release of Howard on hold.

Last week, Howard’s defense team asked for that stay to be lifted. The appeals court could issue its decision on that request any day.

Nannie Howard, a Durham resident who works in Orange County, married Darryl Howard 15 years ago.

Outside the courthouse Friday, she said she never lost faith in her husband or in a justice system that sometimes can be punishing for the wrong reasons.

Howard, who banged his fist on the defense table when the 1993 jury returned guilty verdicts, did have a criminal history when he went to trial. He had substance abuse problems and had been ordered off the public housing complex property, where he was seen on the day of the murders.

But he maintained his innocence throughout. Now, he has many others echoing his claims.

“It’s difficult, when you are a person who has a history (of criminal behavior) to prove your innocence,” Nannie Howard said Friday. “For him it has been difficult to sort of express – to get people to see he’s not the person the courts have painted him to be.”

Stormy Ellis, the Durham assistant district attorney objecting to Howard’s release, declined to comment after the bond hearing.

Efforts to reach Leon Stanback, the acting Durham district attorney, and Roger Echols, the assistant district attorney who is facing no opposition in his campaign to be the next chief prosecutor, were unsuccessful Friday.

Though Howard was ushered from the Durham courtroom by bailiffs Friday, with shackles on his ankles, Cooney, one of his defense attorneys, said Howard’s spirits were not as dark as the day his 1993 trial ended.

“I think he’s beginning to feel a sense of vindication,” Cooney said.

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

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