Darryl Anthony Howard and his attorneys usually greet every other Tuesday with the same lingering questions.
The N.C. Court of Appeals issues a fresh batch of rulings every two weeks or so, and the lawyers and 53-year-old prison inmate wonder whether the batch released that day will have answers for them.
In July 2014, Orlando Hudson, Durham’s chief resident Superior Court judge, overturned two guilty verdicts for murders in 1991 that Howard maintains he did not commit. With new DNA evidence gathered by the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted, and statements collected by post-conviction investigators, Hudson ruled that Howard should get a new trial.
Prosecutors appealed Hudson’s decision, and a three-judge appellate court panel heard arguments in April. The state appeals court is scheduled to release rulings on Tuesday, but it won’t be clear until morning whether Howard’s case will be among the group and offer any answers.
“We’re waiting to see,” said Jim Cooney, a Charlotte attorney who helped persuade Hudson to grant Howard a new trial.
For Howard and his wife of 15 years, Nannie, the wheels of justice have sputtered, stalled, sputtered and stalled again just when they thought they had begun rolling in their favor.
Not only have state prosecutors appealed Hudson’s ruling, they have fought Howard’s request for bail while the appellate judges weigh arguments for and against a new trial.
That puts Howard in a different holding pattern from another high-profile defendant who also saw his murder conviction vacated by Judge Hudson in recent years.
Mike Peterson, a novelist from Durham, was released from prison on house arrest in December 2011 after his October 2003 conviction for the murder of his wife, Kathleen, was overturned. His defense lawyers brought forward evidence about one of the prosecution’s expert witnesses, Duane Deaver, a former State Bureau of Investigation blood analyst who was forced out of his job several years ago after an independent review of the state crime lab revealed problems with some of his cases.
Hudson ruled that Deaver conducted unscientific experiments and misled the jury about his experience and credentials.
Prosecutors did not challenge a decision releasing Peterson from prison. Though there was a status hearing in Peterson’s case earlier this month, few expect to see much courtroom action in it until early next year.
The Peterson trial, one of the longest in Durham County history, drew big media crowds and national TV coverage.
District Attorney Roger Echols has said previously that he might weigh a possible plea deal to avoid another protracted trial, but so far the details of any such negotiations have not been publicly revealed.
Meanwhile, Howard’s wife questions why the wheels of justice in her husband’s case have not spun forward enough for him to wait for decisions in his case outside prison walls, too.
More than 20 years have passed since Howard was convicted of two counts of second-degree murder for the slayings of Doris Washington, 29, and her 13-year-old daughter, Nishonda.
The killings occurred in 1991 in what investigators described as drug-related crimes at a Durham public housing complex.
Howard, who was 32 when he was convicted, knew the victims and was no stranger to Durham police then. He also was a frequent visitor at the public housing complex where the homicides occurred.
But ever since firefighters discovered the naked bodies inside a smoke-filled apartment, Howard has maintained that he had nothing to do with the violent deaths.
Sperm was found on the teenage girl and collected in an investigative rape kit. An autopsy showed that her mother had been sexually assaulted, according to court documents. Howard was charged in the homicides, but DNA tests excluded him as a match to the sexual assault evidence.
But in their appeal, representatives from the state attorney general’s office argued that Howard was overheard telling his brother that, “He had to set the apartment on fire to hide the evidence.” In April, Assistant Attorney General Mary Carla Babb told appeals court judges – Ann Marie Calabria, Donna Stroud and John Tyson – that state prosecutors believed Judge Hudson erred. She contended that defense attorneys in 1995 pointed out to jurors that DNA evidence collected from the victims did not belong to Howard and the jury still arrived at the guilty verdicts.
But defense attorneys have pointed out that a police document uncovered by Innocence Project researchers in the past decade raised questions about the actions of Durham prosecutors, who pushed ahead with the case against Howard knowing that DNA pointed to other culprits.
At trial, Durham police Detective D.L. Dowdy testified that he never suspected that the killings involved sexual assaults and that he never investigated them as such. Mike Nifong, the former Durham district attorney disbarred for his misconduct in the Duke lacrosse case, was an assistant district attorney and the prosecutor at trial.
During his closing arguments, Nifong repeated the investigator’s claim to the jury and suggested that the sperm on the teen was the result of consensual sex before the murder.
Those claims by Nifong and Dowdy were contradicted by a police memo that was in law enforcement files but not turned over to trial attorneys representing Howard.
The memo outlined a confidential tip that police received a few days after the bodies were found. The tipster said a drug gang had murdered Doris Washington over an $8,000 drug debt. The tipster also said the killers raped the mother before killing her and that the daughter, an eighth-grader, was raped and killed after unwittingly walking in on the scene.
The recent, more sophisticated DNA tests done by Innocence Project researchers showed that sperm from the rape kit compiled in the Doris Washington homicide matched that of a convicted felon, Jermeck Jones, whose criminal history includes 35 convictions, including several assaults against women.
Defense attorneys representing Howard in his most recent quest for freedom contend that the new DNA evidence and autopsy reports showed that Washington was sexually assaulted shortly before she was strangled and beaten to death. They insist that another man is the real culprit and Howard has spent more than 20 years in prison, wrongfully committed for the deeds of someone else.
What happens next could be revealed in the state appeals court rulings on Tuesday, or the wait could continue for Howard, who is incarcerated in Warren Correctional Institute while his case moves slowly through the post-conviction legal process.
“On Tuesdays, he waits to hear from us,” Cooney said.