Tuesday, May 27, 2014

Judges Overturns Howard Verdict, Citing Nifong's "False and Misleading" Statements

[Update, 5.46pm: Joe Neff and Anne Blythe have an article on the ruling in the N&O. Will the Durham Police Department now re-examine all cases in which rogue prosecutor Mike Nifong was involved?]

[Update, 9.34am, Wed.: As of this time, there is no mention on the Herald-Sun website of the Hudson ruling. And, of course, Nifong apologist William D. Cohan has made no comment or tweet regarding the further disgrace of his book's central hero.]

[Update, 7.08pm, Wed.: More than 24 hours later, word of the ruling finally appears in the Herald-Sun, though with an emphasis on the DA's decision (for reasons not explained) to appeal. Still no mention of his protagonist’s further disgrace from author William Cohan, whose twitter feed instead has focused on such pressing topics as a picture of tulips and a complaint about the cover of the New York Post.]

Radley Balko reports that Durham judge Orlando Hudson has overturned the conviction of Darryl Howard, citing police and prosecutorial misconduct. (The prosecutor in the case was then-ADA Mike Nifong.) Howard will now receive a new trial. Given the paucity of actual evidence against Howard, hopefully the state will drop the case.

Balko covers the ruling in greater detail; and I’ve previously written about the case also. The thrust: much like the lacrosse case, Nifong reacted to a negative DNA test result not by wondering whether he was trying the wrong party, but instead by suggesting that the DNA evidence was irrelevant to the case. In the lacrosse case, Nifong behaved unethically by withholding exculpatory test results from the defense and lying about them to a judge. In the Howard case, he behaved unethically by misleading the court about the state’s original theory of the crime once that theory became inconsistent with  DNA test results showing that the DNA of two unidentified men--but not Howard--was found in the two murder victims.

In his ruling, Hudson is unsparing in his criticism of Nifong. In comments about Nifong, the judge began by taking notice of the fact that more than a decade after the Howard case, Nifong would be disbarred and held in criminal contempt for “suppressing exculpatory evidence and willfully making false statements” to Judge Smith in the lacrosse case.

In the Howard case, Hudson quoted from Nifong’s closing argument to the jury: “This case was never investigated as a sexual assault and it was never suspected to be a sexual assault.” For good measure, Nifong explained away the presence of DNA in the case by baselessly suggesting that a 13-year-old murder victim had been sexually active with her boyfriend.

Hudson found that Nifong’s assertion was simply not true. He noted that a Durham Police Department document--included in the DA’s files--suggested that the DPD had received a tip that the case was a sexual assault/murder, a tip that was consistent with the presence of DNA in both of the victims. No evidence exists that prosecutor Nifong turned over this document, despite its highly exculpatory nature, to the defense. The existence of this memo, Hudson found, was “directly contrary” to Nifong’s statements to the jury.

Hudson concluded that Nifong had failed to turn over the DPD memo to the defense, and therefore had committed a Brady violation. But Hudson then went further, and held that Nifong violated a 1959 case called Napue v. Illinois, in which the Supreme Court ruled that “a State may not knowingly use false evidence, including false testimony, to obtain a conviction.” The false testimony in the case was given by the lead detective, but Hudson noted that Nifong was responsible for the testimony, since he had access to the DPD memo showing that what Dowdy told the jury wasn’t true. Indeed, Hudson described Nifong’s statements to the jury as “false and misleading.”

As a result of this conduct, Hudson concluded that Nifong violated Howard’s rights under the 4th, 5th, 6th, 8th, and 14th amendments.

This is the same Mike Nifong that author William D. Cohan has deemed “honorable” and “quite credible,” and has said that he “certainly feels sorry for.”


William L. Anderson said...

In reading about Nifong's shameful and illegal behavior, one wishes that the authorities would bring back the punishment in which the offender would be placed in stocks in a public place and held to ridicule.

It definitely would be morally satisfying to see Nifong bound in public and having some projectiles like rotten veggies thrown his way. This is a man who is a psychopath, and perhaps we should not be surprised that a psychopath was elected as a prosecutor in Durham County. Doesn't say much for Duke or Durham, but it does tell us that the voters there are drawn to the worst among us.

Anonymous said...

Oh no! This cannot be true. William Cohan would never lead us astray as to the upright character of Michael Nifong.

Anonymous said...

Makes me wonder how many other Nifong-like DAs (or other powerful people) are out there.

It really does.

skwilli said...

The "stocks" that are these posts on DIW will have to suffice. The ridicule toward Cohan and Nifong and all the other miscreants is delightful to read. Only their willing comrades fail to see the truth.

Anonymous said...

I just finished re-reading "Until Proven Innocent." The final sentence:

"And, with some exceptions among the journalists, almost all of them seem poised to join the next politically correct rush to judgement none the wiser."

Trial Junkie

Anonymous said...

While I accept the $20M was the total settlement among all three lacrosse players is there any documentation.? Cohen claims he was told by reliable insiders that it was $20m each, and I was hoping there was direct evidence to refute his claim.

Anonymous said...

@5/28/14, 2:21 PM
>While I accept the $20M was the total settlement among all three lacrosse players is there any documentation.? Cohen claims he was told by reliable insiders that it was $20m each, and I was hoping there was direct evidence to refute his claim.

Only thing I've seen so far:

Anonymous said...

"Cohen claims he was told by reliable insiders that it was $20m each"

AFAIK, the only source for that claim was a fraudulent IRS claim; which was proven fraudulent by bloggers within hours of the story appearing.

Then again, Cohan appears to think that Mangum and Nifong are reliable sources, so...

Sandfred said...
This comment has been removed by the author.
Anonymous said...

Durham's paper finally posted an article on Howard, with a title they prefer

John Thacker said...

Article in the Indy about a student expulsion after a "he said/she said" case. Some possible concerns about Duke's internal process for dealing with students (witnesses, etc.), including this back and forth between the male student's lawyer and Dean Sue:
Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex.

"They have raped each other and are subject to explusion?" Hitch asked.

"Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek.