DURHAM — A North Carolina judge said Friday he is considering bail for a man who has spent nearly 20 years in prison for a double-murder conviction and is getting a new trial because the judge earlier ruled authorities withheld evidence that could have exonerated him.
Superior Court Judge Orlando Hudson ruled in May that Darryl Howard, 52, must be retried after evidence surfaced showing possible misconduct by former Durham prosecutor Mike Nifong, who was disbarred after the Duke lacrosse case, and a city police detective. Hudson said he intends to free Howard on unsecured bond with electronic monitoring unless he's blocked by a prosecution appeal to a state appeals court.
An appeals court decision could come within days, said Jim Cooney, a Charlotte attorney working to free Howard.
Howard was sentenced to 80 years in prison for strangling 29-year-old Doris Washington and her daughter, 13-year-old Nishonda, then burning their apartment. Both were sexually assaulted.
Hudson said he remembered observing the Howard murder trial in 1995 supervised by a fellow judge and wondering about odd details in the case.
"I was here then," Hudson said. "It was a horrendous prosecution. You know who prosecuted the case. I know who prosecuted the case. There was extremely credible, strong evidence that Mr. Howard did not commit" the crime.
State investigators determined Nifong lied and withheld evidence proving the innocence of Duke University lacrosse players, who were charged with raping a stripper during a 2006 team party.
Nifong, an assistant district attorney in 1995, failed to share with Howard's defense attorneys a police memo and other evidence that pointed to other suspects, Hudson ruled in May.
DNA tests on semen collected from the girl's body excluded Howard two decades ago. A Durham police detective testified at his 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.
Police also heard from a tipster a few days after the bodies were found that a drug gang killed Washington and her daughter inside their public housing apartment because of a drug debt. The tipster knew that the killers raped the mother and daughter, something police had not made public.
New DNA tests paid for by the New York-based Innocence Project pointed to another man with a history of violent felonies, said Barry Scheck, co-director of the group that has exonerated more than 300 wrongfully convicted people nationwide.
"They are saints among us," Howard's wife of 15 years, Nannie, said after the hearing. "It's difficult, when you are a person who has a (criminal) history, to prove your innocence. Because if you were to poll anyone who's ever been in prison, the first thing they say is, 'well I'm innocent.' And everyone just laughs and assumes that yeah, you're guilty, maybe not for this but for something else."
Scheck and Darryl Hunt, who was freed in 2004 and pardoned after DNA evidence and another man's confession proved he didn't commit a Winston-Salem murder 20 years earlier, called on Durham prosecutors to review convictions involving Nifong and other prosecutors.
More than a dozen prosecutors' offices from New York City to Texas and California have created similar panels after finding that innocent people were wrongfully convicted. The groups have agreed to revisit more than 4,900 cases, resulting in at least 61 convictions tossed so far, The Associated Press reported last month.
Such a review team should "find out how many other innocent men and women is still in prison due to the unprofessional and criminal acts that the DA's office has done to Howard and so many others," Hunt said. "Durham really has an opportunity to really change the face of justice and make it right."