State Supreme Court slaps hold on Darryl Howard's release

Jul. 16, 2014 @ 11:37 PM

N.C. Supreme Court justices late Wednesday afternoon stepped in to the Darryl A. Howard case, issuing a temporary stay that will keep Howard in prison for at least a little while longer.

The move came at the request of state Attorney General Roy Cooper and his staff, who want Howard to remain behind bars while appellate courts decide whether he deserves a new trial in a 1991 double-murder case.

It was not immediately clear how long the court’s restriction will remain in effect, as the court did not act Wednesday on a related motion from Cooper’s staff for a longer-term order that would last for the entirety of the appeals process.

The justices stepped in a day after the N.C. Court of Appeals cleared the way for Durham’s senior resident judge, Orlando Hudson, to free Howard on bond.

The Court of Appeals had pondered a similar set of requests from the attorney general staff for three weeks, imposing a temporary stay on Hudson while it did so. It eventually decided there was no need for Hudson to wait while it considers the new-trial issue.

But when the Court of Appeals issued its stay in late June, its judges explicitly said they would rule quickly on the prosecution’s request for a longer-term restraint that would essentially take jurisdiction away from Hudson.

The Supreme Court on Wednesday was silent on that point.

Still, the Supreme Court’s move amounted to one giving it more time to consider the jurisdictional issue, said Jim Cooney, one of Howard’s lawyers.

That’s “similar to what the Court of Appeals did,” he added.

Hudson signaled last week that he intends, if the appellate courts allow, to release Howard on an unsecured bond while the 52-year-old awaits word on whether he’ll receive a new trial.

As they did with the Court of Appeals, lawyers on Cooper’s staff argued that Hudson exceeded his authority in May when he overturned the result of Howard’s original 1995 trial in the slayings of Nishonda and Doris Washington.

Howard’s lawyers contend he was unjustly convicted, given that DNA samples recovered from the women don’t match his while also pointing to the involvement of another man, never charged in the case, who has a history of committing violent crimes.

They also contend Howard’s prosecutor — since-disbarred former District Attorney Mike Nifong — likely hid from defense lawyers a Durham Police Department memo that recounted an informant’s tip about the involvement of a drug gang Washington was in business with.

Hudson has more or less agreed, last week calling the 1995 trial “a horrendous prosecution” with faults “that I’ve never seen in 34 years as a judge.”

But Cooper’s staff faults Hudson for ordering a new trial without holding a fact-finding hearing of his own to scrutinize the new defense claims.

On appeal, they intend to contest among other things the claim that Nifong withheld the police memo, or that it pointed to Howard’s innocence, their Wednesday filing with the Supreme Court said.

Howard’s lawyers counter that a fact-finding hearing isn’t required under the law when there’s no dispute about the underlying facts — and that prosecutors missed their chance to voice one.

They note that at least one well-known false conviction in North Carolina — that of former murder suspect Alan Gell — was overturned without a fact-finding hearing and that prosecutors at the time did not claim one was required.

The legal argument came coupled to a claim that prosecutors, regardless of Hudson’s order, are trying to “keep punishing” Howard for a crime he did not commit.