State: Judge shouldn't have tossed Durham murder convictions

A Superior Court judge improperly overturned two murder convictions against a Durham man last year, an attorney for the state argued Wednesday.

Assistant Attorney General Mary Carla Babb told a three-judge panel of the state Court of Appeals that Darryl Anthony Howard doesn't deserve a new trial and that the state, at the very least, is entitled to a hearing to present evidence as to why his request for another trial should be rejected.

Howard, 53, was convicted in 1995 of two counts of second-degree murder in the 1991 drug-related deaths of Doris Washington and her 13-year-old daughter, Nishonda Washington. He was sentenced to 80 years in prison.

Judge Orlando Hudson ordered a new trial in the case last May, ruling that former Durham County prosecutor Mike Nifong and a police detective withheld evidence that could have cleared Howard.

That evidence included a police memo from four days after the murders that contradicted the lead detective's claim that he never suspected the slayings involved sexual assault. DNA from rape kits performed on both victims also excluded Howard as a match, and new testing in recent years found samples from Doris Washington’s rape kit matched the DNA of a convicted felon with a history of assaulting women.

"We've done the most sensitive DNA testing possible on all the items of evidence from women who were discovered dead and naked, and there's not a shred of DNA that links Mr. Howard to them," his attorney, Jim Cooney, told the appellate judges.

Cooney said medical evidence showed the DNA found in Doris Washington showed she was sexually assaulted shortly before she was strangled and beaten to death.

"You literally have a fingerprint at the scene," he said.

Babb countered that the jury knew in 1995 that DNA evidence didn't match Howard, but they convicted him anyway based on a mountain of other evidence, such as witnesses who heard Howard threaten Doris Washington or saw him at her apartment around the time she was killed and her apartment set on fire.

"The eyewitness testimony here was overwhelming the defendant had committed this crime," she said.

Cooney noted one witness has since recanted and others suggested police coercion in obtaining their testimony. He also pointed to the police memo that included what he called "chilling" details from an informant about the two murders – that Doris Washington was raped and killed by a New York gang for which she dealt drugs. He said Howard's attorneys surely would have used that information at trial if prosecutors had provided it to them to undermine the state's case.

Babb said the contents of the memo are more hearsay than definitive evidence, so it didn't need to be turned over to defense attorneys. At best, she said, could have been used to impeach a police detective's testimony.

Howard's request for a new trial has no merit, she told the judges, and Hudson should have dismissed it outright. He never should have granted a new trial without holding an evidentiary hearing, however, she said, because state law requires such a hearing.

Cooney cited a provision in state law to dispute Babb's contention and asked what difference an evidentiary hearing would make in the case because the state doesn't dispute the findings of the DNA tests or the fact that the police memo wasn't turned over to Howard's trial attorneys.

The Court of Appeals usually doesn't issue rulings for two to three months after hearing oral arguments.

Nannie Howard said her husband is counting on the justice system to free him after spending 20 years in prison for a crime he didn't commit.

"I want the system to really work. I want everyone to see the injustice. I want everyone to understand this could happen to your loved one; this could happen to you. If this is not rectified in a timely manner, it leaves a bad stain on the state of north Carolina," Nannie Howard said after the hearing. "We want this to be over with so everyone can resume their lives, and then we won’t be the center news story anymore and we can focus on other things."