News 09.01.16

North Carolina Judge Throws Out Darryl Howard’s Conviction, Orders Him Released Based on DNA Evidence Proving His Innocence; Durham DA Will Not Appeal Decision

By Nick Lurie-Moroni

Prosecutorial misconduct contributed to Howard’s wrongful conviction; DNA evidence links other perpetrators to crime scene

(Durham, N.C. – September 1, 2016) – Yesterday, North Carolina Superior Judge Orlando Hudson vacated Darryl Howard’s 1995 double-murder and arson convictions and ordered him released from custody based on North Carolina’s post-conviction DNA statute. The Durham District Attorney’s (DA) Office announced that it does not intend to appeal the decision. DNA evidence shows that Howard is innocent of the 1991 murders of Doris Washington and her then 13-year-old daughter Nishonda. The ruling followed two and a half days of evidentiary hearings at which the Innocence Project and co-counsel Jim P. Cooney III presented DNA evidence, obtained post-conviction, which excluded Howard from the crime while linking another man, Jermeck Jones, and an unidentified person to the murder scene.  Jones was identified as the source of semen after it was uploaded to the FBI’s national Combined DNA Index System (CODIS). 
 
This week’s evidentiary hearings took place after the Durham County DA’s Office appealed Judge Hudson’s 2014 decision to vacate Howard’s conviction. The North Carolina Court of Appeals sent back the case to the trial court to hear evidence on Howard’s claims based on new DNA evidence and prosecutorial misconduct. The prosecution at the time of trial argued that the murders did not involve sexual assaults. Disbarred former prosecutor Mike Nifong argued that the police never suspected or investigated the murders as involving sexual assault, but Nifong did not disclose to the defense exculpatory evidence that the police had suspected and investigated sexual assaults. 
 
“We are grateful that Judge Hudson ruled to release Mr. Howard, but this miscarriage of justice stole precious years of Mr. Howard’s life, and there is no way to return that lost time. The only silver lining here is that this was not a capital conviction, because, had it been, Mr. Howard, an innocent man, might not be here today,” said Barry Scheck, co-director of the Innocence Project, which is affiliated with Cardozo School of Law.   
 
“I am thrilled that Mr. Howard finally achieved some measure of justice. Fortunately, North Carolina’s post-conviction DNA testing law allowed Mr. Howard the opportunity to prove his innocence. It was also crucial to our case that the state requires the recording of interrogations, which allowed us to see Mr. Jones make inculpatory and contradictory statements about his knowledge of the crime. Taken together, these are powerful examples of statutes that have the potential to right miscarriages of justice,” said Jim P. Cooney III, co-counsel on the case.
 
On Tuesday, during the second day of evidentiary hearings, Jones was called to the witness stand to answer questions about why his sperm was found inside the mother. Jones refused to answer the questions, invoking his 5th Amendment right to protect himself against self-incrimination. But, in 2011, while in police custody, Jones was video-recorded stating that he did not know the mother, but, instead was in a sexual relationship with her daughter. Another, unidentified DNA profile was found inside the daughter, not Jones’. Additionally, he was caught on tape making a telephone call to an unknown person stating that he would “not rat” on anyone. The Durham police did not immediately share this information with the Innocence Project or co-counsel, nor did it find out to whom Jones was speaking. 
 
A second portion of the evidentiary hearings were supposed to continue later today, which would have allowed the Innocence Project and co-counsel the opportunity to put forth evidence of prosecutorial misconduct on the part of Mike Nifong, the former Durham DA, but those hearings will not continue since the DA’s office does not plan to appeal Judge Hudson’s decision.
 
“I am elated that Mr. Howard will be released for the first time in nearly a quarter of a century. He had significant battles in order to achieve justice. It took far too long to arrive at where we are today. I am hopeful that the DA’s office will not re-try the case,” said Seema Saifee, a staff attorney with the Innocence Project, who worked on Howard’s case. 
 
Background
 
Howard always maintained his innocence of the double homicide.  He was arrested for the crime nearly a year after it occurred.  There was never any physical evidence linking him to the crime, and DNA testing before trial excluded Howard as the source of sperm recovered from the daughter. The prosecution relied on the inconsistent and contradictory testimony of numerous witnesses who gave varying accounts of having seen Howard threaten the mother shortly before the murders. The most damning of these was a prostitute with a lengthy criminal record whom detective Darryl Dowdy, the investigating officer, threatened with a murder prosecution if she didn’t testify against Howard. She subsequently recanted her original statement on the witness stand. 
 
Despite the clear evidence of sexual assault–two women found naked 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. However, through open file discovery, the Innocence Project uncovered a police memo that 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 the mother 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.”  
 
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 [the victims].  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 the 13-year-old’s anus, Dowdy testified, without explanation, that the daughter 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.”  
 
Post-conviction DNA testing on the mother’s rape kit produced a male DNA profile that also excluded Howard.  That DNA profile was entered in the CODIS DNA database and hit to Jermeck Jones who has had over 35 prior convictions, and was 15 years old at the time of the crimes.  When questioned as to how his DNA could have been found in that victim, Jones falsely claimed that he never met the victim and had consensual sex with her daughter the night before her murder. 
 
Post-conviction DNA testing was also conducted on the daughter’s vaginal and anal swabs.  Testing identified a male profile that excluded Howard and did not match Jones.  Because the DNA profile found in the daughter’s rape kit was only a partial profile, it could not be uploaded into CODIS to identify the real assailant.
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