Durham DA's office to appeal judge's ruling vacating 1995 murder convictions
Posted May 28, 2014
Durham, N.C. — The Durham County District Attorney's Office filed notice Wednesday that it is appealing the ruling of a Superior Court judge who vacated a man's double murder conviction nearly 20 years ago after finding a handwritten note that could have resulted in a different trial outcome.
Derrick "Darryl" Anthony Howard, 51, was sentenced in March 1995, to 80 years in prison after a jury found him guilty of two counts of second-degree murder and one count of first-degree arson in the Nov. 27, 1991, deaths of Doris Washington, 29, and her 13-year-old daughter, Nishonda.
Firefighters responding to a fire at their home in Durham found them naked in separate bedrooms. Autopsies later found that Doris Washington died of blunt force trauma and Nishonda Washington was strangled.
Superior Court Judge Orlando Hudson ordered Tuesday that Howard, arrested in November 1992, should receive a new trial after finding that then-Assistant District Attorney Mike Nifong and lead police detective D.L. Dowdy had the note but never gave it to defense attorneys.
Written four days after the murders, it indicates that police received a tip from an informant that the murders were drug-related, that Doris Washington was raped before being killed and that Nishonda Washington might have walked in while her mother was being attacked.
"There may be something to this," a comment in the margin on the note read. "I don't remember any public info on the rape."
Medical examiners noted signs of sexual assault against both victims, but Nifong argued to jurors that the victims had had sex and that the crimes had nothing to do with sexual assaults.
Hudson in his 28-page ruling called the former prosecutor's actions at trial "false and misleading" and said the state's misrepresentations "had a material impact on the deliberations and verdict of the jury."
The New York-based nonprofit Innocence Project, which worked with the North Carolina Center on Actual Innocence to review Howard's conviction, discovered the note after 2009, according to court documents.
Howard's defense attorneys say that along with new DNA testing from rape kits links two other people – including a felon with a history of drug crimes and assaults on women – to the crimes.
Hudson agreed and ordered a new trial.
"This court finds as a fact that Det. Dowdy's and ADA Nifong's misrepresentations that police never investigated or suspected that the crimes involved sexual assaults had a substantial and injurious effect on the outcome of Mr. Howard's trial."
Durham Assistant District Attorney Stormy Ellis on Wednesday requested a stay to Hudson's ruling, meaning the case now goes to the North Carolina Court of Appeals.
A decision could take more than a year. Howard's attorneys, meanwhile, say the next step in the process will be a bond hearing.
Woody Vann, who represented Howard in 1995, said Wednesday he never believed his client was guilty and isn't sure why the jury didn't know about the note.
"Either it was left out on purpose or left out because (prosecutors) didn't believe it was relevant," Vann said. "Or it was hidden."
Nifong, who was named Durham's acting district attorney in 2005, resigned from his post in 2007 after making national headlines for prosecuting three Duke University lacrosse players who were falsely accused of raping a woman.
He was disbarred in 2007 for his handling of the case and later spent a day in jail after a Superior Court judge held him in contempt for making false statements during a hearing on the matter.