Nearly a year has passed since Darryl Anthony Howard heard a Durham County judge overturn guilty verdicts for two homicides Howard maintains he did not commit.
But the 53-year-old Durham man was still in prison on Wednesday as attorneys argued for and against the decision in front of a three-judge Court of Appeals panel.
Assistant Attorney General Mary Carla Babb told the appeals court judges – Ann Marie Calabria, Donna Stroud and John Tyson – that state prosecutors believed Judge Orlando Hudson erred in May when he ordered a new trial for Howard.
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. He was no stranger to Durham police then, or to the public housing complex where the homicides occurred.
But since firefighters discovered the naked bodies inside an apartment choked with smoke, Howard has maintained that he had nothing to do with the violent deaths.
Babb argued on Wednesday that Howard was overheard telling his brother that, “He had to set the apartment on fire to hide the evidence.”
Charlotte attorney Jim Cooney, working in collaboration with the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, told the three appeals court judges on Wednesday that new DNA evidence and statements collected by post-conviction investigators implicated another man in the crime.
Cooney also argued that a police document uncovered by Innocence Project researchers in the past decade raised questions about the actions of Durham prosecutors, who pushed ahead with the case against Howard knowing that DNA pointed to other culprits.
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.
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.
Mike Nifong, the former Durham District Attorney disbarred for his misconduct in the Duke lacrosse case, was an assistant district attorney and the prosecutor at trial.
During his closing arguments, Nifong repeated the investigator’s claim to the jury 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.
Drug debt alleged
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 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.
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 includes 35 convictions, including several assaults against women.
“We’ve done the most sensitive DNA testing possible on all the items of evidence from women who were discovered dead and naked, and there’s not a shred of DNA that links Mr. Howard to them,” Cooney told the appellate judges on Wednesday.
Cooney also contended that DNA evidence and autopsy reports showed that Washington was sexually assaulted shortly before she was strangled and beaten to death.
“You literally have a fingerprint at the scene,” Cooney said, referring to the DNA evidence.
Babb argued that the jury heard in 1995 that DNA evidence didn’t match Howard but convicted him anyway because of witness testimony.
As the three-judge appellate panel weighs the arguments, Howard is waiting to hear from the N.C. Supreme Court.
Last summer, the Durham Superior Court judge who vacated the murder convictions also issued an order setting bail for Howard so he could await trial outside prison.
State prosecutors immediately contested that ruling, too.
That appeal has been stalled at the state Supreme Court for months.
Nannie Howard, the wife of Darryl Howard, stopped outside the N.C. Court of Appeals on Wednesday and spoke briefly about her husband’s range of emotions.
He’s hopeful, she said, but also sad and angry.
She remains optimistic.
“I want the system to really work,” Nannie Howard said. “If this is not rectified in a timely manner, it leaves a bad stain on the state of North Carolina.”