After being framed by a North Carolina police detective, spending more than two decades in prison and fighting to be free, Darryl Howard must now take on a new legal battle to get $6 million granted to him in a wrongful conviction lawsuit by a federal jury in December.
The jury found that retired Durham Detective Darrell Dowdy violated Howard’s civil rights by fabricating evidence and intentionally conducting a shoddy investigation. However, Durham’s city attorney says the city is legally prohibited from paying the monetary judgment on behalf of the rogue detective. Howard’s attorney accused the city of “lying” and using legal language as an excuse.
One of Howard’s lawyers, Nick Brustin, said they plan to do “everything conceivable” to collect the money, including appealing the case.
“We’re going to make sure that we get our client who’s been through absolute hell everything we possibly can for him,” Brustin told the Atlanta Black Star.
Howard was convicted and sentenced to 80 years in prison for the murders of a mother and daughter in 1995. He was exonerated in 2016 after the state appealed a judge’s 2014 decision to vacate his conviction.
The Durham District Attorney’s Office dismissed his double-murder and arson charges after Howard’s lawyers presented DNA evidence excluding him and connecting two other people to the slayings of Doris Washington and her 13-year-old daughter Nishonda in 1991. Gov. Roy Cooper also pardoned Howard in 2021.
Dowdy allegedly obtained false statements from witnesses, including a 17-year-old, to finger Howard for the crime even though he got a tip that a drug gang from New York was responsible for the murders and sexual assaults. He reportedly added details to their statements to make them more believable.
The Durham City Council decided during a series of closed meetings between December and February to deny funding for the judgment.
Durham City Attorney Kimberly Rehberg said the former detective did not perform his “duties in good faith,” and state law and a city resolution forbid Durham from using public funds to cover the verdict.
“The city’s hands were tied,” she said.
The city’s resolution creates a uniform standard for how lawsuits are handled. According to University of North Carolina professor Rick Su, resolutions have no legal effect and are “essentially a formal statement like a formal public press release.”
Durham’s resolution doubles down on state law, which states that “nothing in this section shall authorize” North Carolina counties and municipalities “to appropriate funds for the purpose of paying any claim” “if the city council or board of county commissioners finds” that “employee or officer acted or failed to act because of actual fraud, corruption or actual malice on his part.”
It is the second time to Su’s knowledge that the legal statute has been used to deny an award in the state. It was debated in the 2004 case of Gibbs v. Mayo when a Hyde County commissioner fought for the county to pay his judgment after he illegally profited from a contract to repair the county courthouse and health center.
“The court held, and the county argued that what he did here was actually beyond his capacity as a commissioner that essentially his wrongdoing was taking the contract and essentially being a contractor,” Su said, who teaches state and local government law.
Brustin said it is the first time in Durham’s history that it has refused to pay a judgment. He argues that since the city spent money to defend the Dowdy, they must also pay the judgment.
“It certainly permits them to do it,” Brustin said. He has vowed to ensure that they follow suit.
Howard’s attorneys must now seek the judgment from the detective who receives a pension from the state after a 36-year career. Brustin said the pension is not nearly enough to cover the $6 million verdict and the $4 million for the city’s legal fees to defend him that the city is now asking Howard to pay. The team also spent about $5 million to defend the wrongfully convicted man.
“Because we’re forced to, are going to be going after the assets of Detective Dowdy,” Brustin said. “So if that includes Detective Dowdy’s home and those things, that’s what we’re going to do.”
Howard’s legal team also plans to appeal the court’s decision to dismiss the claims against the city and three other employees and ask for another trial.
Su said Howard’s attorneys might better redeem the money if they prove Durham had faulted on training, oversight, or negligence.
To hold a city liable for a civil rights violation, a plaintiff must show that an officer violated a clearly established constitutional right and that the violation resulted from the city’s official policy, an unofficial custom, or because the city was “deliberately indifferent” in failing to train or supervise the officer, Rehberg said.
“In this case, there was no evidence that the City of Durham’s ordinances, regulations, customs, or policies caused Darryl Howard to be wrongly convicted,” she said.
California, Ohio, Utah and Idaho have similar laws that limit governments from paying judgments to “bad-faith employees.” However, unlike North Carolina’s law, the California statute allows governments to opt out of paying the judgment, Su said.
An appellate court upheld Los Angeles County’s refusal to pay for a judgment against correctional officer Chang v. County of Los Angeles in 2016 because his actions “were based on corruption, fraud, or malice.”
Brustin said the legal move by the city is part of a series of racial injustices against Howard. He pointed out that during the trial, the city argued that Howard was “not worthy” of the $48 million they were seeking because of his criminal record and drug addiction. The city also made settlement offers “nowhere near” the $6 million judgment.
“Morally, they have not only an obligation to pay Darryl Howard, they had an obligation not to defend the case the way they did,” Brustin said. “They had an obligation to go back and look at the misconduct and see if it affects other people.”
“They had an obligation now to go and make sure that nothing like this is happening in their police department. Instead, all they’ve done is they’ve come up with lies about why they don’t have to pay this.”