| Nifong's earlier case | |
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| Tweet Topic Started: Mar 20 2014, 01:30 PM (165 Views) | |
| Quasimodo | Mar 20 2014, 01:30 PM Post #1 |
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hat tip: abb (thought this deserved a thread of its own)
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| Quasimodo | Mar 20 2014, 01:41 PM Post #2 |
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[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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| abb | Mar 20 2014, 01:46 PM Post #3 |
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I'll go a bit further. What Coleman said is a goddamned lie! |
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| Quasimodo | Mar 20 2014, 01:51 PM Post #4 |
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| abb | Mar 20 2014, 03:11 PM Post #5 |
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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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| abb | Mar 20 2014, 06:00 PM Post #6 |
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http://www.innocenceproject.org/Content/New_DNA_Points_to_Innocence_of_North_Carolina_Man.php |
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| abb | Mar 20 2014, 06:01 PM Post #7 |
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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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7:35 PM Jul 10