In 1991, Doris Washington and her 13-year-old daughter Nishonda were murdered in their Durham apartment, leading to the conviction and 80-year sentence of a petty criminal named Darryl Howard. The bodies were discovered in the nude; Doris had lacerations in her vagina, sustained shortly before her murder, and Nishonda had semen that didn't belong to Howard in her anus. Twenty years later, DNA testing discovered new evidence: semen in Doris' vagina. This semen, too, did not belong to Howard, but to another man with a long criminal history. If this new evidence were presented at trial, would the jury have reached a different verdict?
That was a major point of debate during this morning's oral arguments at the North Carolina Court of Appeals in the case of State v. Howard
. The case gained national attention following a ruling last May by Durham's senior resident superior court judge, Orlando Hudson Jr. Without holding an evidentiary hearing, Hudson ordered a new trial for Howard, claiming that prosecutor Michael Nifong failed to disclose evidence that could have led to Howard's acquittal.
Doris had been beaten to death, and Nishonda had been strangled. During the 1995 trial, Nifong based his case around eyewitness testimony that Howard had threatened Doris shortly before the murder. Nifong never contended that there was a sexual assault; in fact, considering that the semen inside Nishonda's anus didn't belong to Howard, Nifong acknowledged to the jury that if rape were involved, Howard would be innocent.
In the Raleigh courtroom today, the two sides squared off over whether the knowledge of the semen in Doris' vagina would have produced a different verdict. Assistant Attorney General Mary Carla Babb, who represented the Durham District Attorney's Office, argued that it doesn't change anything about Nifong's presentation of the facts.
The jury "already knew that Doris had a tear in her vagina," Babb argued to the three-judge appeals panel. "They already knew that she had blood... in her vagina. The jury knew all of that, yet and still they found defendant guilty based on eyewitness testimony."
Howard's appellate attorney, Jim Cooney, countered that the new DNA findings proved a rape had occurred.
"At the time of the trial, no one knew Doris had semen in her vagina," Cooney argued. "Now we have the semen of a convicted felon that is left in bloody discharge shortly before this woman dies of a beating, that's not Mr. Howard's. It is certainly consistent with some sexual contact of some kind, and the state of North Carolina says it doesn't mean anything?"
"We literally have a fingerprint at the scene that not only identifies [the convicted felon] specifically, connects him to the victim, but connects him to the victim shortly before she dies," Cooney added. "I can't think of any more compelling evidence than that."
He claimed that the eyewitness testimony was coerced. One of the witnesses has already recanted.
Another issue at play before the Court of Appeals was a police memo recently discovered by Howard's post-conviction attorneys. The memo revealed that shortly after the murders, an anonymous tipster told Durham police that Doris and Nishonda had been raped and murdered by a gang to whom Doris owed drug money. A handwritten note scrawled on the memo by a police captain said: "There may be something to this. I don't remember any public info on the rape." Of the sperm found in Nishonda's rectum, the captain added: "whoever did this had anal intercourse w/ her." The memo was never disclosed to Howard's defense attorney.
The newly discovered memo is "chilling," said Cooney, suggesting that Nifong secretly knew about it, allowed the lead police investigator to commit perjury by testifying that he never considered sexual assault as a factor in the murder, and repeated the detective's perjurious statement in his closing argument.
"The fact that [the detective] can get up there and say—after having been given a note by an informant saying there was a rape, and an instruction by his captain to look into this because they hadn't told anyone about the rape—that they never suspected it was rape was a fundamentally misleading statement," said Cooney. It "was critical to the case because Mr. Nifong admitted in his closing argument that if there's a sexual assault, then Mr. Howard didn't do it."
"The informant describes exactly what happened before these murders as if the informant was there," he added.
Babb countered that if the memo had been disclosed, its use by Howard's defense team would be "very limited." For the memo to have been admissible, Howard's attorney would have needed to track down the informant and persuaded him to testify. "Those are big assumptions," said Babb. "Those assumptions cannot be made. Therefore that is not material. And with that, this slip contains hearsay within hearsay."
A final major point of contention among both parties may render the semen and the memo moot—at least for now. Before ordering a new trial for Howard last year, Judge Hudson opted not to hold an evidentiary hearing to allow each side to verbally present evidence and question witnesses. That was an error because the facts of the case were contested, Babb argued. At minimum, the Court of Appeals should order Hudson to hold an evidentiary hearing, she said.
Cooney responded by claiming that both parties seemed to agree on the facts of the new evidence, which wouldn't require an evidentiary hearing.