By Martha Waggoner and Emery P. Dalesio
Associated Press
DURHAM, N.C. (AP) — When another case of possible prosecutorial misconduct arose in Durham County, it was all one innocence advocate could take.
Chris Mumma, director of the North Carolina Center on Actual Innocence, reached out to the incoming district attorney. Would he be willing to work with her on an audit of cases of people incarcerated by Durham County prosecutors in the past?
Roger Echols said yes, spurring a massive review that quietly began two years ago. The examination of the cases of 1,120 incarcerated people now is focused on 20 cases the center is investigating.
“If it gets to the point in any of those cases that they think it is reasonable for me to act,” Echols said, “there’s no obligation on our part to rubber-stamp what they’ve done but there’s an obligation that I feel that I have in any case they identify, to review it carefully.”
Mumma and Echols spoke on Sept. 3, the day after Darryl Howard was freed following 21 years in prison for two slayings he says he didn’t commit.
A judge ruled that DNA evidence showed Howard didn’t participate in the rape and murder of a woman and her 13-year-old daughter in 1991. Judge Orlando Hudson freed him from prison. Hudson two years ago also threw out Howard’s sentence, saying former District Attorney Mike Nifong failed to share with defense attorneys a police memo and other evidence that pointed to suspects other than Howard.
Howard remained jailed despite the 2014 ruling, and an appeals court decided Hudson had not heard enough evidence.
Nifong became district attorney in 2005, just before three Duke lacrosse players were charged with rape in 2006. He was disbarred the following year because state investigators
determined he lied and buried evidence proving the players’ innocence.
Four of the roughly 20 cases the center is investigating directly involved work by Nifong, said Mumma. More than half were handled by other staffers during his nearly three decades prosecuting crimes in Durham.
Mumma would not say specifically why the center zeroed in on those 20 cases. However, cases in North Carolina and elsewhere have been re-examined when there are problems with evidence or witness testimony, or suggestions of misconduct by police or prosecutors.
Re-examining the cases became necessary after the Duke case and after Howard’s conviction was thrown out, said defense attorney Kerry Sutton, who defended some of the three lacrosse players accused of rape by a stripper a decade ago.
“I don’t know that it was really optional. There was not any way around it. It was going to be done,” said Sutton, a friend of the current district attorney. “I’d be surprised if other damaging pieces of evidence of flaws or things not done correctly — intentionally or unintentionally — weren’t found.”
Nifong did not return calls to his home seeking comment. His successor, Tracey Cline, was dismissed from office and suspended from practicing law for accusing Hudson of bias and violating rules by seeking prison records for two inmates. The Associated Press couldn’t find a working number for her, and an attorney didn’t return a message.
Echols and Mumma agreed two years ago, about the time the judge first ordered Howard’s release, that they ought to investigate whether more cases of questionable prosecutorial conduct remained unearthed.
Mumma and her staff began by searching for claims of innocence or constitutional violations in 1,120 cases in which the defendants remained imprisoned. They sent letters to 620 inmates asking for details about their cases. Based on the responses, they have begun a deep look into 20.
The review work is similar to that of the conviction integrity units now active inside about two dozen of the more than 2,300 local prosecutorial offices around the country. But any reviews of past prosecutions will come out of Echols’ existing budget, and he will likely do some of the administrative and case work himself, he said. The Center on Actual Innocence is a nonprofit
that operates independently of government, funded primarily by grants.
Concern about whether prosecutors in the state’s fourth-largest city have failed to sort the guilty from the innocent has persisted without resolution since the Duke lacrosse case a decade ago, local attorneys said.
If Nifong and Cline were aberrations while most prosecutions were by-the-book, “they were aberrations at the very top of the office, so I would be concerned with trickle-down,” said Theresa Newman, co-director of the Wrongful Convictions Clinic at the Duke University law school.
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