Durham DA dismisses murder, sexual assault charges from toddler’s death in 1998

Derrick Allen celebrates his release from the Durham County Jail with friends and family in September of 2010.
Derrick Allen celebrates his release from the Durham County Jail with friends and family in September of 2010. 2010 News & Observer file photo

The district attorney’s office has dismissed murder and sexual assault charges against Derrick M. Allen, saying key witnesses who prosecutors would call at trial in the 1998 case are nowhere to be found.

Allen, 38, had been in limbo for nearly six years, awaiting news about whether he would stand trial again for the death of the toddler daughter of his girlfriend in 1998. An autopsy showed the 2-year-old died from shaken baby syndrome.

In 2010, Judge Orlando Hudson dismissed the case against Allen, saying the Durham man’s constitutional rights had been violated by prosecutors and State Bureau of Investigation agents who failed to share crucial details of blood tests.

The state Court of Appeals, in a unanimous decision released in September 2012, said Hudson had made findings of fact in 2010 without adequate evidence. The three-judge panel reversed his ruling and sent the case back to Durham County Superior Court.

Allen’s murder case gained prominence as one that played a role in two of North Carolina’s major criminal justice storylines at the time – the inner-workings of the SBI crime lab and the ouster of former Durham District Attorney Tracey Cline.

The Allen case was among about 200 identified in a state-ordered audit that claimed blood tests done by the SBI crime lab were not accurately or fully presented at court trials.

Cline was the district attorney in Durham when Hudson heard Allen’s request to vacate the Alford plea he entered in August 1999. Under the plea, Allen did not admit his guilt but acknowledged that prosecutors had enough evidence to obtain guilty verdicts for second-degree murder and a first-degree sexual offense. He was sentenced to at least 43 years in prison.

In 2004, Allen challenged his conviction. In March 2009, the trial court vacated the judgment against Allen, allowing him to withdraw his plea and face a new trial. But in 2010, Hudson dismissed the case, saying that prosecutors withheld “critical information” and “flagrantly violated” Allen’s constitutional rights. Hudson further added that prosecutors “had caused such irreparable prejudice” as to necessitate the dismissal of charges.

According to court documents in the murder case, Allen, then 19, was left with another woman in his girlfriend’s home in February 1998 to babysit the 2-year-old girl. Thirty minutes after the toddler’s mother left for work, Allen called 911 and told emergency dispatchers the girl was unresponsive. Police charged him with sexually assaulting the girl, and a grand jury later indicted him on first-degree murder charge.

Hudson’s dismissal

Hudson ruled that prosecutors failed to provide the defense with a polygraph test of the woman who was in the home with Allen at the time of the girl’s death. He said prosecutors had not turned over an SBI report regarding testing for the presence of blood on the girl’s underwear and sleepwear that raised questions about the substance. He said prosecutors failed to provide the defendant with information about crime lab practices and procedures.

Cline was upset that Hudson had dismissed the case. She called his action an “extreme abuse of power” and issued a series of derogatory comments against Durham County’s chief resident superior court judge about that case and several others – words that ultimately resulted in her ouster from the district attorney’s office.

The three-judge appeals court that overturned Hudson’s ruling noted problems with the case, but said the errors had been disclosed in time for the defendant to make use of the material at trial if he chose. The appeals court panel also found that Hudson erred by concluding that the prosecutor intentionally presented false evidence at the plea hearing by stating that there was blood on the victim’s underwear.

The appeals court determined in 2012 that whether such blood existed was not material under the circumstances. There was substantial independent evidence that the victim was bleeding and no evidence that anyone else implicated in the case had been bleeding, according to the ruling.

In late October of this year, Luke Bumm, an assistant district attorney in Durham, filed the notice in court records that the case was being dismissed.

“After significant investigation by law enforcement and the District Attorney’s office, witnesses essential to the prosecution of this case either cannot be located or are uncooperative and refuse to assist in the prosecution,” Bumm stated in the Oct. 25 document. “As a result, the state cannot meet the burden of proving every element of the offense beyond a reasonable doubt and therefore cannot proceed with the prosecution of this case.”

Anne Blythe: 919-836-4948, @AnneBlythe1