Darryl Anthony Howard, a man who has spent 21 years in prison for two murders he maintains he had no part of, is scheduled to be back in a Durham County courtroom this week to try again to win his release.
Howard, 54, saw his conviction overturned by Durham County’s chief resident Superior Court judge in May 2014, then reinstated by the state Court of Appeals this past April after the three-judge appellate panel found procedural problems with how the jury verdict was vacated.
The case, which has won the backing of the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, brings more arguments of prosecutorial and police misconduct in Durham, a city still stinging from similar problems highlighted by the Duke University lacrosse case.
Howard’s hearing could bring Mike Nifong, the former Durham district attorney who was disbarred for his misconduct in the lacrosse case, back inside a Durham County courtroom to testify about his handling of the Howard case.
Howard was convicted in 1995 of two counts of second-degree murder for the homicides of Doris Washington, 29, and her 13-year-old daughter, Nishonda, at a Durham public housing complex. The killings occurred in 1991 in what investigators described as drug-related crimes.
Howard, who was 32 when he was convicted, knew the victims and was no stranger to Durham police. He also was a regular visitor to the public housing complex where the mother and daughter lived.
Nevertheless, since firefighters discovered the two naked bodies inside an apartment choked with smoke, Howard has maintained that he had nothing to do with the violent deaths. DNA from rape kits performed on both victims excluded Howard as a match. Tests done by the Innocence Project five years ago 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.
Prosecutors have argued that the jury heard at the trial almost two decades ago that DNA evidence didn’t match Howard but convicted him anyway because of witness testimony.
As defense attorneys and prosecutors head back to court Monday morning to comply with the appeals court ruling from April – giving the state another chance to argue against assertions that persuaded Judge Orlando Hudson to overturn the convictions in 2014 – a new complaint about prosecutorial conduct arises.
In a sharply worded 12-page motion submitted to the court on Wednesday, defense attorneys Jim Cooney of Charlotte and Barry Scheck, co-director of the New York-based Innocence Project, seek sanctions against prosecutors.
They argue that for five years, prosecutors and police have withheld information that they had been ordered to give defense attorneys.
In December 2011, police took Jermeck Jones, a man identified in a DNA database as being a match to DNA found in one of the victims, into custody to seize a DNA sample and interview him. Though prosecutors had been ordered in September 2011 to turn over all information that they had on Jones, it was not until last month, on July 13, that prosecutors provided a videotape of that interview.
After reviewing the tape, defense attorneys contend that Jones “made a number of false statements that contradicted verifiable scientific DNA evidence as well as statements that a reasonable investigator would view as indicating that Jones had knowledge about all these homicides,” they said in their motion seeking sanctions.
Though Jones admitted to having a relationship with the 13-year-old victim, he told police he did not know Doris Washington and never touched her, though his DNA evidence from the Washington sexual assault kit contradicts that statement.
Defense attorneys said they also were troubled that Jones made a number of calls while alone in the interrogation room, and the videotape captured only one side of the conversation that could have been explored further had police looked into it or turned over the evidence quickly as instructed in the 2011 order.
In one of the calls Jones is heard saying: “They set me in a ...room and they’re wanting to talk to me and I don’t want to rat on anybody. I ain’t up for a lot of talk.”
Jones later said in a call: “There ain’t nothing to talk about. Ain’t nothing they’re going to learn without my attorney.”
“These statements indicate plainly that Jones had information about these murders and that he would not share this information without counsel,” the defense attorneys contend. “The state did nothing to follow up on these statements and made no effort to seize his telephone and determine the person or persons with whom Jones was speaking... . Now with the passage of time, this evidence is irretrievably lost.”
In addition to failing to turn over the evidence for five years, the defense team argues, prosecutors argued during several Superior Court and Court of Appeals hearings against defense evidence that could have been bolstered by information in the videotaped interview had the defense attorneys been in possession of the material.
Jones, whose criminal history includes 35 convictions, including several assaults against women, has been a focus of the defense team as it seeks to free Howard.
At trial in 1995, 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, the prosecutor at trial, repeated the investigator’s claim to the jury during his closing arguments and suggested that the sperm on the teen was the result of consensual sex before the murder.
Those claims by Nifong and Dowdy were contradicted by a police memo that was in law enforcement files but not turned over to trial attorneys representing Howard.
The memo outlined a confidential tip that police received a few days after the bodies were found. The tipster said a drug gang had murdered Doris Washington over an $8,000 drug debt. The tipster also said that the killers raped the mother before killing her and that the daughter, an eighth-grader, was raped and killed after unwittingly walking in on the scene.
Nifong, 65 now, was disbarred in summer 2007, in part for failing to turn over evidence to the defense team for the three lacrosse players wrongfully charged in the Duke case.
The Howard hearing is scheduled for three days. It was unclear which day Nifong, who is on the list of people who have been subpoenaed as potential witnesses, might be called to the witness stand.
In addition to questioning the acts of past prosecutors, Howard’s defense team has asked the judge to “conduct an inquiry” into why current prosecutors waited so long to share the videotaped interview of a man whose DNA matches evidence in the 1991 homicides.
In asking for the court to “impose appropriate sanctions,” the defense team argues that prosecutors violated Howard’s rights to due process, a fair and speedy trial and equal protection.