A forensics science professor at Virginia Commonwealth University offered testimony Monday that was critical of the Durham police investigation that led to two murder convictions against Darryl Anthony Howard.
Marilyn Miller, an associate professor at the Richmond-based campus, testified on the first day of a hearing in a case that brings more allegations of police and prosecutorial misconduct in the same city where the Duke lacrosse case occurred.
Called to testify by a defense team that includes attorneys from the New York-based Innocence Project, Miller said her look at the evidence made her think a sexual assault occurred in 1991 before Doris Washington, 29, and her 13-year-old daughter, Nishonda, were found dead at a Durham public housing complex.
Both mother and daughter were found naked and dead on a bed in an apartment where a fire had been set.
Howard, who was convicted in 1995 of two counts of second-degree murder in the case, maintains he had nothing to do with the crime.
On Monday, Howard and his attorneys went before Judge Orlando Hudson for the second time in two years to try to persuade him to vacate the convictions because of new DNA evidence.
That evidence, uncovered through retesting of a sexual assault kit from the crime scene, excludes Howard as a match in a case in which defense attorneys and prosecutors have offered different narratives about what happened to the victims.
Evidence uncovered through retesting of a sexual assault kit from the crime scene excludes Darryl Howard as a match in a case in which defense attorneys and prosecutors have offered different narratives about what happened to the victims.
Prosecutors initially proceeded as if the case might be a sexual assault, Miller said, by collecting evidence for a crime-scene rape kit. But they abandoned that theory and at trial presented the case as two murders, saying both mother and daughter must have engaged in consensual sex before their deaths.
Stormy Ellis, the assistant Durham County district attorney assigned to the case long after it went to trial, argued Monday that Howard’s claims that DNA from the rape kit matches another man is not incongruous with what the jury heard at trial.
Witnesses during the 1995 trial testified that they had seen Howard, who was no stranger to the housing complex, at the home of the mother and daughter who had been killed.
“They listened, they looked at the witnesses, they evaluated the credibility of the witnesses and they came back, even though his DNA wasn’t there, that he was guilty,” Ellis said.
But Miller, one of two people to testify Monday, said her review of the trial transcript provided to her by the defense team and other evidence led her to believe that Howard was not at the crime scene.
“I’m saying based on the evidence and circumstances we have in this case, he was not there when this was done,” Miller said. “His DNA wasn’t there.”
Miller said police had not done a thorough job, even by 1991 crime scene investigation standards, of combing the apartment for evidence.
“We’ve got two women who are dead on a bed,” Miller said. “That’s going to give very good evidence.”
Miller said had she been running the investigation she would have launched it as a sexual assault and murder, not just a murder as prosecutors told the jury at trial.
“I can say there was a sexual assault,” Miller said.
The man whose DNA matched evidence in the sexual assault kit was in the Durham County courtroom Monday, subpoenaed by the defense team.
In 2011, Durham police got a search warrant to get a DNA sample from Jermeck Jones, a man identified in a DNA database as being a match to DNA found in one of the victims.
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.
Jones is expected to be called to the stand Tuesday, but is unlikely to offer much in the way of details, Lisa Williams, a Durham attorney appointed to his case, said late Monday. When Jones arrived at the hearing Monday and did not have a lawyer to represent him, he asked the judge to appoint one.
Jones, who was a teen at the time of the homicides, could face a statutory rape charge if he had a sexual relationship with the 13-year-old victim.
Charlotte attorney Jim Cooney, a member of Howard’s defense team, said during his opening Monday that the DNA of two men was found inside the victims.
“We know we have DNA from more than one person in this crime, and we know that none of that DNA is Mr. Howard’s,” Cooney said. “The DNA validates the confidential informant’s tip that there were perpetrators – multiple people – not just one, which was the state’s theory at trial.”
What prosecutors argued at trial is expected to be a subject of questioning on Tuesday or Wednesday.
Former District Attorney Mike Nifong, who was disbarred in 2007 for his misconduct in the Duke lacrosse case, is expected to be called to the stand to speak to that. Nifong was the prosecutor on the case, and he argued at trial that investigators never thought the case was a sexual assault. However, a confidential informant’s tip, which was never turned over to the defense team at the ’95 trial, suggested otherwise.
Nifong was at the courthouse Monday, but left after attorneys told him it might be a day or two before he would be called to the stand.
As media followed him down the hall, he offered little on what he had been doing over the past eight years.
“Somebody believes I have relevant testimony to this, and I’m going to give it just like anyone else would,” Nifong said. “I’ll get on the stand and tell the truth and make of it what they wish.”