DA will appeal new-trial order for Darryl Howard

May. 28, 2014 @ 06:25 PM

The Durham County District Attorney’s office plans to appeal a Durham judge’s ruling that the man convicted of killing a woman and her 13-year-old daughter in 1991 is entitled to a new trial.

Durham County Senior Resident Superior Court Judge Orlando F. Hudson Jr. based his ruling on new evidence discoveries, including new DNA testing and a police tip that was reportedly never given to the defense.

Durham County Assistant District Attorney Stormy Ellis filed a notice of appeal on Wednesday. The notice also asks for a stay to the order granting a new trial.

Darryl A. Howard was convicted in 1995 of first-degree arson and the second-degree murder for the killings of Doris Washington, 29, and her daughter, Nishonda, 13. They were found nude by responders to a fire at their home at Few Gardens, a public housing project in North East Central Durham that has since been replaced. Howard was sentenced to 80 years in prison.

In the ruling filed Tuesday, Hudson voided Howard’s conviction and ruled that he’s entitled to a new trial. The order was a response to a motion filed in March in Howard’s defense based on the new evidence. The Innocence Project, a non-profit legal clinic, is leading a team working on Howard’s case.

The new evidence includes post-conviction DNA testing that found male sperm in the victims from two men, neither of them Howard. The tests linked the DNA to a convicted felon and to an unknown male.

Hudson ruled that the evidence undermines the credibility of the state’s theory presented at the trial. According to the details of his ruling, the state’s theory was that Howard murdered them alone, and that no sexual assaults were committed in connection with the killings.

The ruling also references a memo detailing a tip the police department received from a confidential informant. The memo, obtained by Howard’s post-conviction attorneys in 2010, said the homicides involved sexual assault and multiple perpetrators. It said they were probably murdered because Doris Washington owed money to drug dealers from Philadelphia or New York.

But according to Hudson’s ruling, Howard’s defense attorney in 1995 said he had no recollection of receiving or seeing the memo before or during the trial. And the ruling said the state didn’t present any counter-evidence indicating the memo was given to the defense. Because of the “failure to produce the memo,” Hudson found that Howard’s due process and Fourteenth Amendment rights were violated.

Also in light of the memo, Hudson found that Durham Police Department Detective D. Dowdy and then-Assistant District Attorney Mike Nifong made “materially misleading and false arguments” to the jury, violating Howard’s rights under the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution.

According to ruling, Dowdy testified at the trial that did not suspect that the case was a sexual assault case, and never investigated it as one. Kammie Michael, a spokeswoman for the department, said in an email that Dowdy doesn’t work for the department now.

And Nifong argued, according to the ruling, that the homicides weren’t suspected as a sexual assault or investigated as one. Nifong is the now-disbarred former Durham district attorney who prosecuted three Duke University lacrosse players falsely accused of rape.

A call for comment to interim District Attorney Leon Stanback was referred to office of N.C. Attorney General Roy Cooper. Jennifer Canada, a spokeswoman for Cooper’s office, said in an email that Cooper’s office would represent the prosecution on the appeal.

The Durham Police Department did not respond to the ruling.

Paul Cates, a spokesman for The Innocence Project, said attorneys working on his case will be working on getting a bail hearing to determine whether or not Howard will be released.