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Nifong's earlier case
Topic Started: Mar 20 2014, 01:30 PM (165 Views)
Quasimodo



hat tip: abb

(thought this deserved a thread of its own)


Quote:
 


http://www.washingtonpost.com/news/the-watch/wp/2014/03/20/darryl-howard-and-the-rampaging-prosecutor-durham-learns-little-from-duke-lacrosse-debacle/

Darryl Howard and the rampaging prosecutor: Durham learns little from Duke lacrosse debacle

By Radley Balko, Updated: March 20 at 12:11 pm

When Darryl Howard was convicted of murder in 1995, he cried out ”I didn’t do it!” then sobbed in open court. He has maintained his innocence ever since.

“As a defense attorney, there are times when you aren’t sure if your client did it, and there are times when you’re pretty sure he did it, but you defend him anyway, because that’s your job,” says Woody Vann, Howard’s trial attorney. ”This case has always haunted me because I never believed that Darryl Howard committed those crimes.”

Howard was never going to win any citizenship awards. He was a low-level drug peddler, a petty criminal, and something of a nuisance. On several occasions he had been arrested for selling small quantities of drugs. He had also been cited for trespassing more than 70 times, many of those in Few Gardens, a housing project in Durham, North Carolina.

But for all his problems, there has never been much compelling evidence that Howard is a murderer. Howard was convicted of killing a woman named Doris Washington and her 13-year-old daughter Nishonda in November 1991. The two were found dead in their Few Gardens apartment. Howard was convicted both for their murders and for subsequently setting a fire to their apartment to cover up the crimes. Despite indications that both women had been sexually assaulted, no DNA or biological evidence connected Howard to the crime scene. He was convicted entirely on eyewitness testimony, much of which was vague, contradictory, or later recanted.

Now, newly discovered evidence further argues for Howard’s innocence. In court papers filed this week, the Innocence Project reveals that DNA testing of a rape kit taken from Doris Washington found some sperm that went undetected during the initial investigation. That sperm is a match to a career criminal, not to Howard. Attorneys for Howard have also uncovered evidence that prosecutors in the case may have withheld important exculpatory evidence, including a credible statement from an informant days after the murder who attributed the crimes to a local gang, not to Darryl Howard.

Discovery of the memo, which was known to police and should have been known to prosecutors, shows that the state failed to turn over relevant evidence pointing to Howard’s innocence. But the contents of the memo also suggest that Howard’s prosecutor not only put on perjurious testimony from a police investigator, he then used that evidence to give false statements in court himself.

Perhaps most interesting of all is just who that prosecutor was: Michael Nifong, then an assistant district attorney for Durham County. Nifong of course would later be appointed, then elected district attorney, and then make national headlines in 2006 when he falsely charged three Duke University lacrosse players with sexually assaulting a stripper. In 2007 Nifong was disbarred for his handling of evidence in that case. He was also found in contempt for making false statements about the case in court.

But Howard’s incarceration spans a period of time over which several scandals have raised questions about the dispensation of justice in Durham County. In 2010, a report commissioned by the North Carolina attorney general and follow-up investigations by the Raleigh News & Observer uncovered widespread corruption and malfeasance in the state’s crime lab, including in many cases from Durham County. Fallout from that scandal contributed to the removal of Nifong’s successor, District Attorney Tracey Cline, in 2012. Prosecutors are rarely ever removed from office for misconduct. For it to happen twice, in the same county, within five years is extraordinary. (The Washington Post was unable to reach Mike Nifong or Tracey Cline. The office of interim Durham District Attorney Leon Stanback did not respond to several requests for comment.)

[Well, the media should press him for comments...such as, what is he doing to reopen old cases
prosecuted by Nifong and Cline?]


But missing from all of those scandals was any effort to assess the breadth and scope of their reach. Even after Nifong and Cline were removed from office, public officials in Durham County showed little interest in an audit or investigation into the damage they may have done. Part of that may be due to Durham County’s politics and the lingering legacy of the Duke case. With its mix of academic progressives and working class blacks, Durham is arguably the most left-of-center county in the state. (In the 2012 presidential election, Obama received 76% of the vote in Durham County — his best showing in the state.) The lacrosse case of course featured several well-to-do white men accused of raping a low-income black woman. That set the stage for an unlikely lineup up adversaries, as progressive groups, academics, feminists, and racial justice activists sided with the overzealous prosecutor, while the political right lined up behind the accused.

[KC hardly counts as the "political right"; neither did some major posters at Talk Left..]

But prosecutorial misconduct is rarely a one-off phenomenon. If it has happened once with a prosecutor, or within a particular office, it has probably happened before. And in Durham, a county that’s 40 percent black and 7.5 percent Latino, the victims in those other cases are far more likely to be people like Darryl Howard than wealthy white students on a college lacrosse team.

(snip)
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Quasimodo

[quote[


(snip)

But about seven months after Howard’s arrest, Nifong’s office ran into a problem: Results from the DNA testing on the sperm found in Nishonda Washington’s rectum came back, and they excluded Howard as the source.

Such test results might have persuaded a conscientious prosecutor to at least consider the possibility that he had charged the wrong man, especially considering the statement from the informant. At the very least, it would seem to mean they needed to change their theory, and consider the possibility that Howard didn’t kill the women by himself. But Nifong proceeded with the case against Howard as planned, trying him and only him for murders and the arson. (Howard’s brother Harvey was initially also charged for the arson; that charge was later dropped.) The state proceeded on the theory that either the women weren’t sexually assaulted, or that if they had been, the assault or assaults weren’t connected to the murders.

At trial, Det. Dowdy tried to explain away the DNA results.

(snip)

“I would submit to you that a 13-year-old who can be gone for five days with her boyfriend is not somebody for whom sex is going to be an unknown subject,” Nifong said. The prosecutor who a decade later would be hailed as a champion for victims of sexual assault was here suggesting it was more likely that a 13-year-old had engaged in anal and vaginal intercourse than that she had been raped.

Dowdy also testified at trial that his murder investigation never even considered the possibility that the women had been sexually assaulted, a point Nifong also reemphasized in his closing argument. This is clearly contradicted by the internal memo about the statement from the informant, the note written on the memo from another officer to Dowdy about how the “rapes” weren’t yet public information, the handwritten note about the shower, and the fact that Dowdy himself had written up an affidavit to collect Howard’s DNA for comparison to any DNA profiles that might come from the rape kits.

But the more disturbing component in all of this is the strong possibility that the informant memo was never turned over to Howard’s attorney. Woody Vann, Howard’s trial attorney, says he destroyed his file on Howard’s case years ago. (Attorneys often throw out old case files, and Howard was convicted nearly 20 years ago.) Because of that, Vann says he can’t say “with 100 percent certainty” that Nifong never gave him the file. But he adds, “This was a double homicide. That memo would have been powerful exculpatory evidence, probably enough for an acquittal. I have to say that if it had been turned over, I certainly would have seen it, and I certainly would have used it.”

Vann conceded at trial that Howard and Washington knew one another, but noted there was no evidence that Washington ever sold drugs for Howard, as the state claimed. Vann also pointed out there was no biological evidence from Howard found at the scene, no incriminating evidence found on Howard (he was arrested the day after the murders for trespassing), and no witnesses who could say they saw Howard committing the crimes.

The jury wasn’t convinced. They found Howard guilty. He was sentenced to 40 years in prison for each murder, and another 40 years for the arson. His appeals were unsuccessful. In the meantime, Mike Nifong was elected Durham County District Attorney. And James E. Hardin, Jr. — the DA who oversaw Nifong at the time — went on to become a judge.



”The Durham Way”

There is of course a chance that Mike Nifong did turn the informant memo over to Woody Vann, and that for some reason it just never got to him. It’s also possible that Vann himself overlooked the memo, in which case he’d be guilty of ineffective assistance of counsel — which still gives Howard a strong argument for a new trial. Because Vann’s file no longer exists, there’s simply no way to know for sure.

But Barry Scheck of the Innocence Project points to the Duke lacrosse case, and what the public would later learn about Nifong. “When you see that kind of misconduct once, it has likely happened before,” Scheck says. “Behavior that egregious is typically the work of a serial offender.”

K.C. Johnson, a history professor at Brooklyn College in New York who co-wrote a book about the Duke lacrosse case, agrees. “I’m absolutely certain that Mike Nifong didn’t just wake up one day during the Duke lacrosse case and decide to start committing misconduct. He must have done it previously.”

It is also at least possible that while Det. Dowdy and the Durham police department clearly knew about the memo, they never turned it over to Nifong, in which case Nifong would look more incompetent than malicious. But this was a major piece of exculpatory evidence in a murder trial. And because it was never turned over, Nifong elicited false testimony from Dowdy on the witness stand. Nifong reiterated those statements in his closing argument. Nifong was either complicit in the lie, or was deficient enough in his job that the police department and Dowdy felt they could get away with lying to him. Neither scenario reflects well on Nifong.

But events since the Duke lacrosse case also point to a broader problem in the Durham District Attorney’s office, the Durham police department, even to the state of North Carolina as a whole. As a defense attorney in nearby Wake County put it, “North Carolina has a lot of problems. But Durham has problems even for North Carolina.”

“It has always been an odd DA’s office,” says K.C. Johnson. “There’s a lot of turnover. The ones who stick around for a long time — people like Nifong, Cline, or Freda Black — tend to be where you find the problems. I’d say that at best, they were indifferent to their ethical obligations.” (Freda Black was a longtime prosecutor in the office and a political rival of Nifong — she ran against him in the 2006 Democratic primary.)

In an alternate universe, the mixed-up politics of the Duke lacrosse case — with progressive groups and personalities largely lining up with the prosecutor, and conservative groups and personalities largely lining up with the defense — might have presented a unique opportunity. Once it was clear that the players were innocent, and that Nifong had lied and withheld evidence, conservatives could perhaps have had their eyes opened to the inadequacies of the criminal justice system, and been brought on board to move for reform. Progressive groups could perhaps have seen that the DA regime they had been supporting had duped them, and realized that if the office culture could produce the sort of behavior apparent in the Duke case, it was likely affecting how prosecutors approached their other cases, most of which involved people from Durham’s low-income and minority communities.

But that isn’t how it played out. National personalities on the right like Sean Hannity, Bill O’Reilly and Rush Limbaugh railed about the case for months, then all but ignored the criminal justice system once it was over.

When the Duke lacrosse case first began to break, Duke President Richard Brodhead asked Duke law professor James Coleman to write up a report on the lacrosse team. Coleman, who is black, came back with a report that contradicted the negative portrayals of the team in the media and among civil rights and feminist activists. He also became a vocal critic of Nifong and the culture within the Durham DA’s office.

That report earned Coleman praise on the right. But he now says he’s disappointed with how supporters of the lacrosse team simply moved on once the case was resolved. “I had hoped that the people of influence who were attracted to this case — the players and their families, the conservative groups, the commentators who were drawn to the injustice — I had hoped they would have used it as an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.”

[I disagree with Coleman on that.]


It wasn’t any better on the other side. The North Carolina NAACP and faculty at both Duke and the historically black North Carolina Central University cast early lots with Nifong, who then trumpeted the case to help him win his first election for district attorney. As it became increasingly clear that Nifong had overstepped his authority, the state NAACP urged the public to remain silent so as not to bias the investigation. Critics like Johnson noted at the time that keeping quiet wasn’t exactly the sort of activism for which the group was known, and that the group had supported Nifong despite clear evidence that the case embodied criminal justice abuses that the state NAACP had condemned in other cases. The “Group of 88,” a collection of academics from Duke University, took out a full-page newspaper ad early in the investigation that broadly condemned a culture of racism and sexism on campus. Some signatories to the ad continued to publicly condemn the players even after it was clear that they were innocent.

Of course, the initial reaction from civil rights groups should be considered in the context of the way blacks have been traditionally been treated (and are still treated) in the criminal justice system, as well as the history of racial violence and discrimination in the south. In particular, there’s a long and sordid history around interracial sex, interracial rape, and the legal system’s insufficient protection of the rights of black people in such matters, from masters taking liberties with their slaves, to miscegenation laws, to shameful cases like the lynching of Emmett Till.

But it’s the reaction from these groups after it became clear that Nifong had abused his authority, and that the lacrosse players were innocent, that’s harder to justify. Instead of recognizing that Durham County may have a problem in the DA’s office, some advocacy groups continued to support Nifong. Some shifted their attention from the now-proven-false charges to the alleged boorish but legal behavior of lacrosse players. Some just moved on to other things. But few, on the left or the right, considered the possibility that there may be other victims.

“I think the left was indifferent,” Coleman says. “And that’s too bad. Because based on the work we do in wrongful conviction cases, it was a chance to make people aware of the fact that what happened in that cases wasn’t unusual, but fairly common. It was a chance to look at the conduct of public officials, and to learn form it.”

K.C. Johnson adds, “I think the NAACP would have been in a unique position to have demanded the kind of review that could have exposed other injustices. I was disappointed, but not surprised that there was little support for that. There was this feeling of we must move on. It was really a missed opportunity. The whole country was watching, and you had this opportunity to shine on a light on prosecutor and police misconduct, problems that disproportionately affect minority communities. But the civil rights groups that were opposed to any of that happening.”

New York Times columnist Peter Applebome made a similar point in 2007, as the case died down. “{T}he news media, and civil rights and women’s rights organizations who were so intoxicated by the story of bad white boys that they missed the real outrage: how prosecutors can railroad innocent people, nearly all of them without the {lacrosse} students’ resources or abilities to fight back.”

To their credit, two of the accused lacrosse players seemed to understand what was at stake better than anyone. At the press conference shortly after the players were declared innocent, Reade Seligmann reflected on what he had just gone through:

“This entire experience has opened my eyes up to a tragic world of injustice I never knew existed. If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they’d do to people who do not have the resources to defend themselves. So rather than relying on disparaging stereotypes and creating political and racial conflicts, all of us need to take a step back from this case and learn from it. The Duke lacrosse case has shown that our society has lost sight of the most fundamental principle of our legal system: the presumption of innocence.”

Colin Finnerty made a similar observation, ”There seem to be some flaws in the legal system that should be addressed, the fact that in North Carolina there are no recordings of the grand jury, and to establish checks and balances on district attorneys.”

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Quasimodo
Mar 20 2014, 01:41 PM
That report earned Coleman praise on the right. But he now says he’s disappointed with how supporters of the lacrosse team simply moved on once the case was resolved. “I had hoped that the people of influence who were attracted to this case — the players and their families, the conservative groups, the commentators who were drawn to the injustice — I had hoped they would have used it as an opportunity to subject the criminal justice system to a searing review. It’s as if they believe the only bias in the system is against wealthy white college students.”

[I disagree with Coleman on that.]


I'll go a bit further. What Coleman said is a goddamned lie!
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Quasimodo

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A Break for Darryl Howard

The Innocence Project took on Darryl Howard’s case in 2006, along with local defense attorney James Cooney. Locally renowned for representing the Duke lacrosse players, Cooney also represented Alan Gell, a death row inmate who was retried, acquitted, and released in 2004 after Cooney discovered that prosecutors had withheld critical exculpatory evidence in his original trial.

In 2010, Howard’s new legal team then sent the rape kit taken from Doris Washington to a lab for more advanced DNA testing. That lab found sperm on a vaginal swab that the North Carolina crime lab failed to find 15 years earlier. The lab was then able to create a DNA profile of the sperm that excluded Daryl Washington [Howard] as the source.

[What would Peter Neufeld say about that?] How can DNA exonerate someone?

The following year Howard’s attorneys obtained a court order to run the DNA profile through CODIS, the FBI’s digital index of DNA profiles. CODIS returned a hit on Jermeck Jones, a man with more than 30 prior convictions. Pertinent to Howard’s case, Jones’ record includes convictions for drug distribution and for assaulting women. He was 15 years old at the time of the Washington murders, putting him within the age range of the members of the New York Boys. Howard’s new attorneys also asked the same lab to retest the DNA found in Nishonda Washington. The lab was able to exclude both Darryl Howard and Jermeck Jones as the source of the sperm, but unable to create a full profile to run through CODIS.

The new testing conclusively showed that two separate men had sex, or possibly raped, Doris Washington and her daughter shortly before the two were murdered. One of them was Jermeck Jones. Neither of them as Darryl Howard.

[See above. How can DNA exonerate you, if it can't exonerate THREE men accused of a violent struggle and rape, when none of their DNA is present?]

By this time, Mike Nifong had resigned from office after the Duke lacrosse scandal. One of his former assistants, Tracey Cline, had won the election to replace him. According to Scheck, Howard’s attorneys had an oral agreement with Cline that neither party would approach Jermeck Jones about the DNA tests without prior notice to the other side. Yet when Howard’s attorneys sent an investigator to question Jones, he had already been made aware of the test results. ”We were surprised that someone had already told him,” Scheck says.

Jones told the private investigator he had never had sex with Doris Washington. But bizarrely, he said he did have sex with Nishonda Washington, and on the night before she was killed. When asked how his story could be reconciled with the results of the DNA tests, Jones said that Nishonda must have somehow transferred his sperm from her rectum into her mother’s vagina.

Howard’s attorneys brought all of this to Tracey Cline. But the new DA and former Nifong “top deputy” refused to reopen the case or conduct any further investigation.


The Nifong legacy


Several months after Nifong was disbarred in 2007, Tracey Cline announced in February 2008 that she’d be seeking her former boss’s position. Cline was not only Nifong’s top assistant, she was also his second chair in the Duke case. She denied playing a large role in the case, although advocates for the players point to bar disciplinary transcripts that suggest otherwise. Nevertheless, her connection with Nifong wasn’t enough to sully her reputation with the voters of Durham. In 2008 Cline was elected to take over for her mentor. She invited him to her swearing-in as an honored guest.

But shortly before Cline took office, a panel of judges from the North Carolina Court of Appeals threw out burglary, robbery, kidnapping and attempted sexual assault charges against Frankie Washington, a case tried by Cline. Washington had been held in jail for four years a before his trial,

[Where's the DOJ? Doesn't the Bill of Rights have any meaning?]

and there’s strong evidence that Cline may also have convicted the wrong man. In overturning Washington’s conviction, Judge Douglas McCullough wrote that the mess could have been avoided “if the state had exercised even the slightest care during the course of this prosecution.” When he later freed Black, Durham Superior Court Judge Orlando Hudson added, “People are starting to question, in Durham, the degree to which the prosecutor’s office and the police department are tracking down cases when there are leads that other people have committed the crimes.”

It was the first of many rebukes to come. Just a month after Cline was sworn in, Hudson threw out the charges against another man, Derrick Allen, finding again that Cline had withheld potentially exculpatory evidence at his trial.

Then in 2010, Attorney General Roy Cooper ordered an investigation of the North Carolina state crime lab. The resulting report was damning, finding that crime lab analysts had altered or withheld exculpatory information in at least 230 cases over a 16-year period. Three of those were death penalty cases in which the accused had already been executed.

A follow-up investigation by the Raleigh News & Observer uncovered more. The paper found that prosecutors and police pressured crime lab analysts to produce results that helped them win convictions. The pressure wasn’t subtle. A training manual for crime lab analysts gave tips on how to boost their “conviction rate,” while referring to experts who testify for criminal defendants as “defense whores.” In some cases, when analysts got test results that were unfavorable to prosecutors, they would repeat the tests until they got the results prosecutors wanted. Many times, defense attorneys were never notified of how many tries it took to get the test results “right.” To illustrate the point, the paper found a video of two blood spatter analysts altering and redoing an experiment over and over until they could produce the result that prosecutors were looking for. To celebrate their success, the two analysts gave one another a high-five.

The crime lab scandal would soon become a factor in the fall of Durham’s second consecutive elected district attorney. In December 2010 and August 2011, Judge Hudson threw out two more cases that Cline had tried. In both cases, Hudson cited yet more misconduct on the part of Cline, including more instances in which she failed to disclose exculpatory evidence. In one of the cases, Cline blamed the now-beleaguered crime lab.

The following September, the News & Observer published an extensive investigation of Cline herself, going back to her days as an assistant district attorney under Nifong. The paper found that Cline’s behavior had been questioned by judges in at last six cases, and that she had “misstated facts to judges” and “not provided evidence favorable to defendants.” Two months later, Hudson rebuked Cline in yet another case, finding that she had intentionally delayed presenting a murder case to a grand jury long enough for the victim’s remains to be cremated, then misled defense attorneys about the matter for months.

Then it all got surreal. Three days after, in December 2011, Cline accused Judge Hudson of corruption, and requested he be removed from all criminal cases in Durham County. She specifically requested that he be removed from a coming hearing for Mike Peterson, the novelist, newspaper writer, and former Durham mayoral candidate convicted in 2003 of murdering his wife. The prosecutor in that case was former District Attorney James Hardin, who had supervised both Cline and Nifong, and had since become judge. (As an added twist, Peterson was a former newspaper columnist who had been critical of Hardin.)

On December 5, 2011, Cline made her case against Hudson in a special hearing before Superior Court Judge Carl Fox. Cline bizarrely accused Hudson of orchestrating a vast conspiracy to bring her down, one which included a number of defense attorneys, as well as reporters and editors at the Raleigh News & Observer. She subpoenaed more than 50 people, including court clerks, defense attorneys, other active and retired judges, staff from the News & Observer, and Hudson himself. As the newspaper put it, all told, Cline had subpoenaed “a considerable part of Durham’s legal community.”

Fox ruled against Cline, as did another judge the following month when she made the same accusations in another case. In a blistering opinion, Judge Hudson later ordered a new trial for Peterson, citing an investigation which found that forensic analyst Duane Deaver had lied on the stand about his qualifications and about the scientific reliability of his blood spatter analysis. Deaver’s testimony was critical in the state’s argument that Peterson’s wife died in a homicide, not an accident.

In January 2012, defense attorney Kerry Sutton filed a complaint against Cline, citing her odd behavior and the multiple findings of misconduct against her. Six weeks later, Superior Court Judge Robert Hobgood removed Cline from office, finding “clear, cogent and convincing evidence” that she “brought the office of the Durham County District Attorney and the entire Durham County justice system into disrepute.” Hobgood’s order was later upheld by the North Carolina Supreme Court.

In a system where prosecutors routinely get away with misconduct, even Mike Nifong’s removal from office was almost unheard of. Now it had happened again.



Looking for more Darryl Howards

Scheck, who filed Darryl Howard’s petition for a new trial on Wednesday, says the fate of other possibly innocent people shouldn’t rest on organizations like his finding and taking their cases. “We need an audit,” he says. “We need a thorough, comprehensive audit of cases in Durham County to find out how many other innocent people may have been affected by the culture in that office. It’s the only way to get to the bottom of this.

Both James Coleman and K.C. Johnson agree. “It was disappointing that it never happened,” Johnson says. “But it wasn’t surprising. There was just no constituency for it.” Coleman says the audit needs to be broader. ”I think we absolutely need a review, not just in Durham, but across the entire state.”

As for Howard, Scheck says he’s hopeful that interim Durham County District Attorney Leon Stanback will take another look at the case. “We’d love to talk some more with him,” Scheck says. “We’d much rather work with prosecutors than against them.”

Meanwhile, Stanback, who was appointed to fill out Cline’s term, has said he has no intention of running for the position in the next election. So there will be a campaign to replace Tracey Cline. And Durham County voters will be presented with a stark set of choices in the Democratic primary.

On the one hand, there’s Roger Echols, currently Stanback’s top assistant, and formerly an assistant to Cline. Echols is running on a fairly traditional law-and-order platform that emphasizes crime reduction and victim’s rights. Echols’ main opponent is Mitchell Garrell, a former Durham assistant district attorney whom Cline fired in 2010. Garrell was dismissed shortly after he had released evidence to defense attorneys that reflected unfavorably on Cline in a child abuse case. The defendant had already been granted a new trial, and Garrell’s disclosures to the defense were consistent with state law. But the dismissal of a long-serving, well-respected prosecutor drew some attention. Garrell is now running on a reform platform, promising more accountability, including working with defense attorneys in cases where there are genuine questions about the integrity of a conviction.

While Echols would continue the Nifong-Cline line of succession, it’s worth noting that he hasn’t been implicated in any of the cases in which his former boss has been accused of misconduct. But it is hard not to notice that Durham voters will be choosing between a guy that Cline hired, and a guy that she fired — after he helped expose some of her mistakes. And given his platform, it’s certainly safe to say that Garrell would be a break from the past.

The outcome of the election could determine whether there’s a genuine effort to see if there are other Darryl Howards languishing in North Carolina prisons, or whether Durham will opt to simply move on from Tracey Cline, without any attempt to assess the damage she may have done.

Just as the county did with Mike Nifong.
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http://www.innocenceproject.org/Content/New_DNA_and_Previously_Undisclosed_Evidence_Points_to_Innocence_of_North_Carolina_Man_Serving_80_Years_for_Double_Homicide_and_Arson.php

New DNA and Previously Undisclosed Evidence Points to Innocence of North Carolina Man Serving 80 Years for Double Homicide and Arson

[Print Version]

Evidence Strongly Suggests Prosecutor Mike Nifong, Disbarred and Held in Contempt for his Actions in the Duke Lacrosse Case, Allowed Lead Detective to Falsely Testify

Contact:
Paul Cates, pcates@innocenceproject.org
Alana Massie, amassie@innocenceproject.org

(Charlotte, NC; March 11, 2014) — The Innocence Project filed legal papers today urging a Durham County court to overturn the murder and arson convictions of Darryl Anthony Howard based on new DNA and undisclosed evidence pointing to his innocence. In November 1991, two victims, a mother and her 13-year-old daughter, were found nude and strangled on a bed in their burned apartment. Sperm was found in the girl’s anus and injuries to the mother indicated she had been sexually assaulted. DNA testing before trial excluded Howard as the source of the sperm from the daughter, but Assistant District Attorney Mike Nifong told the jury that investigators never suspected either victim was sexually assaulted much less that sexual assaults were involved in the homicides. However, new evidence never disclosed to the defense reveals that the state was told just days after the murders that the crimes involved sexual assault and the victims were murdered by more than one perpetrator who were drug dealers collecting an outstanding debt. New DNA testing points to two different men – neither of whom was Howard – as the real perpetrators of the crime. One of these men has been identified through the CODIS DNA data bank and has an extensive criminal record involving drug crimes and assaults.

“Newly discovered evidence strongly suggests that law enforcement completely disregarded powerful and credible evidence pointing to other suspects in its prosecution of Mr. Howard, who has served nearly 20 years for a crime which mounting evidence now shows he didn’t commit,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This evidence raises deeply disturbing questions about the lengths to which the state was willing to go to secure a conviction.”

On November 27, 1991, fire personnel found the nude and strangled bodies of Doris W. and her 13-year-old daughter Nishonda lying face down on a bed in their burning apartment. The medical examiner collected rape kits on both victims. He found recently deposited sperm in Nishonda’s anus and redness at her vaginal opening. The state crime lab also detected sperm in Nishonda’s vagina. Doris had a ½ inch tear and blood-tinged fluid in her vagina. A toxicology exam showed Doris had recently used cocaine. The medical examiner concluded that Nishonda died as a result of strangulation. Although Doris too was strangled, the medical examiner determined that her cause of death was blunt force trauma to her abdomen. A Durham fire investigator determined that the fire had been intentionally set.

Almost a year after the crimes, police arrested Howard. While Howard was awaiting trial, the state crime lab examined the rape kits. The lab failed to detect any sperm or semen in Doris’ rape kit. DNA testing on sperm found on Nishonda’s vaginal and anal swabs excluded Howard as the source.

At trial, no eyewitness was produced who claimed to have seen Howard commit the crime and no physical evidence linked Howard to the crime scene. Two witnesses claimed to have seen Howard argue with and threaten Doris the day before the crime, but these accounts varied. One of these witnesses recanted his statement after trial, signing a sworn affidavit that Detective Darryl Dowdy coerced him into implicating Howard. The other, Roneka Jackson, was paid $10,000 from a state compensation fund for her testimony. Five months after Howard’s trial, Jackson was murdered with the same modus operandi used in these crimes. Jackson was choked and her body was set on fire by members of the New York Boys, a drug gang that was known for dealing drugs in the victims’ neighborhood. The New York Boys was the drug gang Howard’s defense counsel suggested were probably responsible for the murders.

The state’s main witness against Howard was a prostitute with a lengthy criminal record whom Dowdy threatened with a murder prosecution if she didn’t testify against Howard. On the witness stand, she testified that she knew nothing about the murders. The court declared her a hostile witness and the prosecution was allowed to play an out-of-court statement which she provided to police after she was arrested for prostitution. This statement contradicted the testimony of all of the state’s other witnesses.

Howard did not deny being near the crime scene on the night of the murders. He and his then-girlfriend testified at trial that they were at a friend’s apartment on the night of the murders and went to an apartment near the victim’s apartment building when they saw smoke coming from Doris’ apartment.

Despite the clear evidence of sexual assault – two women found nude on one bed, one with blood and a laceration in her vagina and the second – a 13-year-old girl – with sperm in her anus and vagina – Dowdy testified that the crimes were never investigated and never even suspected to involve a sexual assault. Nifong, who was subsequently disbarred and held in contempt for his misconduct in the Duke Lacrosse case, repeated those claims in his closing arguments to the jury. In his summation, Nifong told the jury that “despite the fact that this case was never investigated as a sexual assault and it was never suspected to be a sexual assault [defense counsel] wants to make it a sexual assault and why, because he knows the defendant never had sex with Nishonda or Doris. So, if he makes you believe that the killer was somebody who had sex with him [sic] then obviously it couldn’t be the defendant.” To account for the sperm recovered from 13-year-old Nishonda’s anus, Dowdy testified, without explanation, that Nishonda was away from home with her boyfriend for almost a week prior to her murder. Nifong argued to the jury that “[h]ow [that sperm] got there I can’t tell you [but] I would submit to you that a 13-year-old who can be gone for five days with her boyfriend is not somebody with whom sex is going to be an unknown subject.”

Despite the lack of credible evidence against Howard and his DNA exclusion from the sperm found in Nishonda, Howard was convicted of murder and arson and sentenced to 80 years in prison. He has maintained his innocence consistently for more than 22 years.

“The new evidence makes it clear that Mr. Howard’s conviction should be reversed because all the physical evidence points to other perpetrators,” said James P. Cooney, III, a partner with Womble Carlyle, which is assisting the Innocence Project in Mr. Howard’s representation.

In papers filed today, the Innocence Project presents newly discovered DNA evidence that demonstrates that Howard did not commit these crimes. Post-conviction DNA testing on Doris’ rape kit produced a male DNA profile that excluded Howard. That DNA profile was entered in the CODIS DNA database and hit to J. Jones, a career criminal with over 35 prior convictions, who was 15 years old at the time of the crimes. When questioned as to how his DNA could have been found in Doris, Jones falsely claimed that he never met Doris and had consensual sex with Nishonda the night before her murder. Post-conviction DNA testing was also conducted on Nishonda’s vaginal and anal swabs. Testing identified a male profile that excluded Howard and did not match Jones. Because the DNA profile found in Nishonda’s rape kit was only a partial profile, it could not be uploaded into CODIS to identify the real assailant.

Through open file discovery, the Innocence Project discovered a memo that was never disclosed to Howard’s trial counsel that is completely consistent with the new DNA testing. The memo reveals that Durham police received a detailed tip from a confidential informant four days after the murders that the crimes involved sexual assault and the victims were murdered by more than one perpetrator because Doris owed $8000 to drug dealers from “either Philadelphia or New York.” A note on the first page of the memo reads: “Dowdy There may be something to this. I don’t remember any public info on the rape. EES.”

“While the police and prosecutors took pains to build a case against Mr. Howard, it tragically appears that the real perpetrators were allowed to go free and commit other terrible crimes,” said Seema Saifee, a staff attorney with the Innocence Project.

As the Innocence Project argues in its motion, had this document been turned over to the defense at trial, as required, it would have greatly bolstered the defense’s assertions that the victims had been sexually assaulted during the crimes.

A copy of the motion filed today is available at: http://www.innocenceproject.org/docs/Howard_Motion_for_New_Trial.pdf

The exhibits are at: http://www.innocenceproject.org/docs/Howard_Motion_for_New_Trial_EXHIBITS.pdf
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http://www.innocenceproject.org/Content/New_DNA_Points_to_Innocence_of_North_Carolina_Man.php
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The next thing to watch for is how hard the Durham area "journalism" crowd tries to keep from reporting on all this.
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