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 4^th, 5^th, 6^th, 8^th, and 14^th 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.”