Convicted man's release keeps Duke lacrosse lawyer off stand

Defense attorney calls for other cases by disbarred prosecutor to be reviewed

By Emery P. Dalesio
Associated Press

DURHAM, N.C. (AP) - A North Carolina man was freed after 21 years in prison for a double-murder a judge ruled he likely didn't commit, but questions linger about the prosecutor who put him behind bars - the former district attorney already disbarred for lying and misconduct in the Duke University lacrosse rape case.

The Durham district attorney's office on Wednesday opted against fighting Darryl Howard's release based on improved DNA evidence after it became clear prosecutors would have to defend Mike Nifong's handling of the case.

Assistant District Attorney Stormy Ellis initially said prosecutors wanted to appeal Superior Court Judge Orlando Hudson's decision to throw out Howard's convictions and free him immediately. The hearing then was scheduled to turn to Howard's attorneys showing what they said was misconduct by police and prosecutors that helped win his conviction in 1995.

But after lunch, Ellis said prosecutors had changed their minds. That meant Nifong did not have to take the stand and cleared the way for Howard to be freed.

Howard, who had been serving an 80-year sentence, was convicted of the 1991 strangling and sexual assault of 29-year-old Doris Washington and her 13-year-old daughter, Nishonda. But DNA evidence shows Howard did not rape the women, and no other physical evidence connected him to the crime. Hudson said Wednesday that evidence would have created a reasonable doubt for jurors.

Hudson said prosecutors could retry Howard, who was convicted based heavily on the testimony of witnesses at the Durham public housing project where the killings occurred, or drop the case.

Defense attorney Barry Scheck said he thought it was unlikely that prosecutors would retry Howard because of the contradictory evidence offered by witnesses at Howard's original trial, signs of misconduct by prosecutors and police and lack of physical evidence. The fact that prosecutors didn't seek the death penalty against Howard for such a brutal crime and murder signaled that they knew even then that they had a weak case, Scheck said.

He said he hoped other cases Nifong prosecuted before being disbarred from the legal profession in 2007 would be reviewed to see if innocent people were wrongly sent to prison.

"When you have an error like this, and you have somebody that is a bad actor, and there's no question that Mr. Nifong has done this before, why don't you go back and systematically look at his cases?" said Scheck, who also defended former NFL star O.J. Simpson at his 1995 murder trial.

Nifong did not respond to a message left with a woman answering a call to his home Wednesday night.

One legal observer in the courtroom said the Durham district attorney's office may have decided to live with Hudson's decision based on the DNA evidence to avoid presenting evidence of misconduct by the office during Nifong's tenure.

"Given the history of the DA's office, having their past skeletons paraded out again is likely something that nobody wanted," said Jamie Lau, an attorney with the Wrongful Convictions Clinic at the Duke University law school.

Howard, 54, said he was looking forward to building a relationship with the wife who married him three years after he entered prison and seeing his grandchildren. He thanked Scheck, Charlotte lawyer Jim Cooney and other attorneys who believed him when he proclaimed his innocence.

"The evidence speaks for itself," Howard said after walking out of the county jail. "It took me a long time to get to this point."

The judge had first ordered Howard's release from prison two years ago. But prosecutors appealed at the time and a state appeals court ruled this spring that Hudson failed to hear enough evidence before making a decision. Hudson heard evidence for three days this week.

The judge said in his 2014 ruling that Nifong failed to share with defense attorneys a police memo and other evidence that pointed to suspects other than Howard. A Durham police detective testified at Howard's trial that investigators never considered that the sexual assaults were linked to the killers. Nifong repeated that claim despite a police memo in the prosecution's files that contradicted him.

In the Duke lacrosse case, three athletes were accused of raping a stripper hired to entertain a team party. State investigators later determined Nifong lied and buried evidence proving the lacrosse players were innocent. Cooney represented one of the three lacrosse players.

Published: Fri, Sep 02, 2016