Judge throws out double-murder conviction for NC man in prison for 21 years

Darryl Howard on Tuesday. (Kaitlin McKeown/The Herald-Sun via AP)

DURHAM, N.C. – A North Carolina judge on Wednesday threw out the double-murder conviction of a man who spent 21 years in prison after his case was tried by the prosecutor who was later disbarred for lying and misconduct in the Duke lacrosse rape case.

The judge said he was prepared to order Darryl Howard's immediate and unrestricted release from prison, citing DNA evidence unavailable at Howard's 1995 murder trial.

The former district attorney in the Duke case, Mike Nifong, had been expected to testify Wednesday afternoon about his handling of Howard's case and whether misconduct from police and prosecutors helped win a conviction. But prosecutors decided not to appeal the judge's order tossing the conviction, which meant Nifong did not have to take the stand and cleared the way for Howard to be freed.

Howard 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. The judge said Wednesday that evidence would have created a reasonable doubt for jurors.

"I don't see any reason he can't be released today," said Superior Court Judge Orlando Hudson. Howard had been sentenced to 80 years in prison.

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

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.

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 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.

DNA evidence presented at Howard's 1991 trial showed he was not responsible for sexually assaulting Nishonda Washington before her murder. Whoever did assault Nishonda hasn't been identified.

But DNA tests unavailable at the time of Howard's original trial identified the man who had sex with Doris Washington shortly before her 1991 death as Jermeck Jones, who dated Nishonda before her death. He was identified from DNA samples stored in a federal database, which was collected after Jones was sentenced to prison in Tennessee.

Jones served nearly four years in Tennessee prisons before his release in late 2007 for crimes including possession of a weapon by a convicted felon, failure to appear in court, drug possession and reckless endangerment with a deadly weapon.

Jones on Tuesday refused to answer questions from Howard's attorneys, citing his constitutional right against incriminating himself.