Judge: Howard to get bond if appellate court allows

Jul. 11, 2014 @ 07:12 PM

 Durham’s senior judge says he intends to grant unsecured bond to a man convicted in 1991 double homicide while he awaits a new trial.

But formal action from Senior Resident Superior Court Judge Orlando Hudson remains on hold while the N.C. Court of Appeals considers a prosecution request that would take jurisdiction in the matter away from him.

“If the appellate courts say I can’t do it, I can’t do it,” Hudson said Friday of the prospective release of Darryl A. Howard. “But if I can do it, I intend to do it.”

Hudson added that any release of Howard would come with strings attached, most likely some form of electronic house arrest and a limitation on his travel rights that would restrict him to Durham, Orange and Wake counties.

Howard has been in prison since 1995, when he was convicted of killing two residents of the former Few Gardens public housing complex, Doris Washington and her daughter Nishonda.

The women were also sexually assaulted, and defense lawyers contend later DNA testing showed the semen in one of the victims matched another man tied to a then-active gang called the New York Boys that was in the drug business with Washington.

They also say Howard’s prosecutor – since-disbarred former District Attorney Mike Nifong – withheld from his trial lawyer a note from police that showed they received a tip in the slayings that also pointed to the involvement of the New York Boys.

Hudson in May ruled that Howard should receive a new trial. Prosecutors have appealed that decision, but the judge made a point during Friday’s bond hearing of telling them that, in his opinion, they’re trying to defend the indefensible.

“It was a horrendous prosecution,” Hudson told Assistant District Attorney Stormy Ellis, who argued that freeing Howard would put the public’s safety at risk. “You know who prosecuted the case, I know who prosecuted the case. There was extremely credible, strong evidence that Mr. Howard did not commit any of these crimes.”

One of Howard’s lawyers, Charlotte-based attorney Jim Cooney, said he expects a ruling soon from the Court of Appeals on the jurisdiction issue. He speculated that it might come later on Friday, but as of the close of business Friday afternoon there was no sign of a ruling.

Lawyers from N.C. Attorney General Roy Cooper’s office have argued that Hudson exceeded his authority in May by ordering a new trial without first conducting a full-on evidentiary hearing to weigh the new claims from Howard’s defense team.

Cooney responded by telling the appeals court the state law that governs “relief” for long-convicted defendants doesn’t necessarily require an evidentiary hearing, and that at least one well-known false murder conviction in North Carolina, that of Alan Gell, was overturned in 2002 without one.

Hudson made it clear he’ll await an appeals court ruling on the jurisdiction issue.

“There are things that happened in this case that I’ve never seen in 34 years as a judge,” he said. “The other court may not agree with me. Of course they can do what they do. I do my job, they do their job, you do your job and we’ll just see where it falls out.”

The judge at the time was addressing Ellis, who went on to raise the public-safety argument against releasing Howard. She said the Washington murders were not the first Howard was accused of.

He was also charged in a 1987 case “that was busted down to conspiracy to commit an armed robbery,” Ellis said. “This is where three individuals including himself went up to the door of a house, knocked on the door, asked for drugs, shot the man and then the three split the drugs up. He was actually convicted of the conspiracy in that matter.”

 Cooney said afterwards that if the Court of Appeals rules against Howard on the jurisdictional issue, Howard will have to remain in prison for the year or so it’ll take the appellate court to sort through the issues involved in actually deciding whether to grant a new trial.

Another lawyer for Howard, Barry Scheck, said prosecutors instead of focusing on Howard should instead get busy with finding the men whose DNA actually matches the samples taken from the two women.

The identity of one is already known thanks to work by the defense, and “we would like to see the district attorney move forward to get DNA testing of other people who are incarcerated who were members of the New York Boys … so we will be able to identify the perpetrator,” Scheck said.

An advocate for Howard, DNA-exonerated Winston-Salem murder defendant Darryl Hunt, was less understanding than Hudson of Ellis’ argument for continuing to hold Howard.

“Nobody should be sitting in prison for something that they didn’t do,” Hunt said. “I spent 19 years, four months and 19 days [in prison] because of attitudes like we’ve seen in the courtroom of not wanting to do the right thing and wanting to continue to uphold an unjust conviction.”