Darryl Howard’s story was so close to a happy ending. Howard had spent 24 years in prison for a double murder he didn’t commit. His conviction was vacated in 2016 after a North Carolina judge found police and prosecutorial misconduct. Last year, a federal jury agreed that the lead detective, Durham Police Detective Darryl Dowdy, had fabricated evidence, and awarded Howard $6 million.
Yet now the city of Durham is refusing to pay him. Instead, the city is arguing that Dowdy acted in “bad faith” during his investigation. Therefore, the city argues, Dowdy wasn’t acting within the scope of his employment, and the city is refusing to indemnify him from the jury award.
And it gets worse. In his lawsuit, Howard also named other city employees for contributing to his wrongful imprisonment. For various reasons, those employees were later removed from the lawsuit. Durham is also demanding that Howard reimburse the city for those employees’ legal fees. Durham officials forced an innocent man to wake up in a cage every morning for 24 years — and now they want him to pay them for it.
The case against Howard was suspect from the start. One of the victims, a 13-year-old, showed clear signs of a sexual assault, and there’s evidence the police initially believed the assault was part of the crime. But when DNA testing excluded Howard, their main suspect, Durham County prosecutor Mike Nifong proceeded to trial anyway. (Nearly 90 percent of Durham County’s population resides in the city of Durham.) He and Dowdy argued that the semen found in the girl’s rectum and vagina probably belonged to her boyfriend, despite no records that they actually investigated that possibility.
There was more: After one eyewitness recanted on the stand, Nifong had to treat her as a hostile witness when she declared in court, “you can’t force me to come and tell something I didn’t see.” The witness accused Dowdy of coercing her testimony with threats of criminal charges. In the decades after Howard’s conviction, more eyewitnesses came forward to recant their testimony, claiming Dowdy had coerced them, too.
There is an argument to be made that corrupt and abusive police officers should be personally liable when they violate someone’s constitutional rights. But a police officer alone can’t possibly make whole a man who lost decades of his life. The city that employed that officer should make up the difference. Otherwise, we risk setting a bad precedent. The city of Cleveland, for example, has also tried refusing to indemnify problem cops after losing lawsuits. (The city then spent money advising those cops on how to file for bankruptcy, further ensuring that victims never recover damages.)
Howard’s $6 million amounts to about 1 percent of Durham’s annual budget. That’s a lot, but it pales in comparison with a third of a man’s life. And the notion that the city can’t afford the judgment rings hollow given that, according to the Raleigh News & Observer, Durham spent more than $4 million defending Howard’s conviction and Dowdy’s actions.
That alone is persuasive evidence of Durham’s culpability for Dowdy’s behavior — as are Dowdy’s 36 years in the city’s employment. But the city’s position is also absurd because Howard’s conviction can’t be blamed on Dowdy alone.
Durham County prosecutors withheld important exculpatory evidence from Howard’s attorneys, including witness statements implicating a local gang for the murders. Nifong in particular was found to have made false statements to jurors, and played down the possibility of sexual assault, knowing the DNA tests didn’t implicate Howard.
Moreover, Howard’s wrongful conviction wasn’t the only case in which Durham prosecutors were found to have withheld exculpatory evidence. Nifong would become Durham County district attorney before resigning in disgrace for his infamous conduct in the Duke lacrosse case. He was replaced by Tracey Cline, his mentee, his second chair in the Duke case and his overall second-in-command. Cline was then also removed from office after state judges found she, too, had committed egregious misconduct in numerous cases.
It’s rare for prosecutors to suffer even minimal consequences after they’re found to have committed misconduct. Durham County had two consecutive prosecutors who behaved so poorly, they were removed from office.
The city wants to pretend this ugly era never happened. If the courts allow it, the only other avenue for Howard to recover damages would be what’s known as a Monell claim. That would require proving a culture of corruption and misconduct so rampant in the city police department and DA’s office that constitutional violations were all but inevitable.
But the federal courts have set the bar for such claims impossibly high. For example, those wrongly convicted by the notorious office of New Orleans DA Harry Connick — who sent multiple innocent people to death row, was repeatedly excoriated by the courts, and who flat out admitted he never bothered to train his prosecutors on ethical obligations — were nevertheless barred by the courts from recovering damages.
In a better world, a law would require Dowdy to pay Howard, but then require the city of Durham to pay what Dowdy can’t. In a better world, the law would ensure that Howard gets the full compensation a jury clearly believed he deserves. But the law has failed. At this point, only a desire for justice and a sense of shame can make that happen. And Durham officials appear to be in short supply of both.
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PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
