Last week, a federal Court of Appeals panel mostly ruled in favor of Darryl Howard, a Black man who spent 24 years behind bars for two murders he didn’t commit.
But the decision won’t help Howard collect the millions of dollars a jury awarded him in 2021. If anything, it demonstrated that for those railroaded by the criminal legal system, happy endings are hard to come by.
Three decades ago, a Durham jury convicted Howard of the 1991 deaths of Doris Washington and her 13-year-old daughter, Nishonda, following an investigation that might charitably be called sloppy. Prosecutor Mike Nifong—later disbarred over his mishandling of the Duke lacrosse case—took Howard to trial despite DNA evidence that Nishonda had likely been sexually assaulted by someone other than Howard. Nifong then made false statements to jurors and possibly withheld exculpatory evidence from Howard’s attorneys.
Howard was released in 2016 after DNA testing found sperm inside Doris Washington that belonged to a member of the New York Boys, a gang prevalent in Washington’s neighborhood at the time of her murder. (Detectives ignored a tip that the New York Boys killed Washington because she owed them money, according to court records.) Howard sued the city of Durham, two officers who failed to disclose information about alternative suspects during Howard’s appeals, and the detective who led the original investigation.
In 2021, a federal jury found that Det. Darrell Dowdy had violated Howard’s civil rights by coercing false witness statements and fabricating evidence. Dowdy was ordered to pay Howard $6 million and his lawyers another $4 million. But the judge dismissed Howard’s claims against the city and the other two officers before jurors heard them.
The appeals court upheld the verdict against Dowdy. However, the three judges said Durham was protected from litigation by the 1978 U.S. Supreme Court decision in Monell, which says a municipality can only be held liable for civil rights violations its employees commit if those violations are part of an official policy or practice.
In this case, the judges determined that although the Durham police failed to disclose that a key witness against Howard was a paid informant embedded with the New York Boys and had an obvious motive to lie, “We are not convinced that such a violation can be laid at the city’s doorstep.” Under Monell, it doesn’t matter that the police department is an arm of the city.
Still, cities usually indemnify their employees against civil judgments. But in 2022, after spending millions defending Dowdy in court, Durham’s city council decided it wouldn’t pay Howard on Dowdy’s behalf. It was an unprecedented move for Durham, though Cleveland, Ohio, crafted a similar policy a decade ago. One attorney called Cleveland’s scheme “a road map for any municipality that wants to evade their obligations.”
Noting that a jury decided that Dowdy had investigated in “bad faith,” Durham city attorney Kim Rehberg cited a state law that says municipalities can’t pay for employees who “acted or failed to act because of actual fraud, corruption or actual malice on his part.”
Dowdy, who was making $76,000 a year when he retired in 2007, sued Durham last week, saying the city “abandoned” him. The verdict could force Dowdy into bankruptcy, and Howard is unlikely to be paid what he’s owed.
Howard will get another chance to take Durham police to court—and perhaps wrangle a settlement out of the city. Last week, the appellate judges voted 2-1 to reinstate his claim against officers Michele Soucie and Scott Pennica, who in 2011 allegedly suppressed evidence implicating gang member Jermeck Jones in the murders despite a court order requiring them to share information about alternative suspects with Howard’s lawyers.
Soucie and Pennica interviewed Jones after learning that his DNA was found inside Doris Washington, who, like her daughter, showed signs of sexual assault. During the interview—and while he was being recorded during breaks—Jones made contradictory and apparently incriminating statements, according to court records. But Durham County District Attorney Tracey Cline—who was later removed from office and had her law license suspended over misconduct allegations—declined to pursue the matter. (Prosecutors are immune from civil rights lawsuits.)
Soucie and Pennica admitted that they withheld evidence that could have freed Howard, but said they didn’t know about the court order. That was good enough for the trial judge and one of three appellate judges: Cops have no obligation to help the wrongfully convicted. If they didn’t intentionally ignore a legal mandate, they’re not accountable for their inaction.
The two judges who ruled in Howard’s favor, however, said a jury should decide “whether this suppression was undertaken in bad faith”—in other words, whether they knew about the court order.
Of course, if a jury decides they acted in bad faith, Durham’s new policy suggests it won’t pick up the tab. Once again, Darryl Howard will still lose even if he wins.
This post has been updated to clarify Kim Rehberg’s comments.
Cross-Examination
Charlotte resident Stephen Pandos has searched for his sister for 36 years.
Jennifer Lynn Pandos, then 15, vanished the morning of February 10, 1987, from her home in Williamsburg, Va. Her parents, Margie and Ronald Pandos, woke up to find their daughter’s bedroom door locked. When they broke into the room, they found a strange note on her bed, written in red ink: “Your daughter’s with me. She’s fine. She’s having some problems and she needs some time away.”
The tone of the note then switched to appear as though Jennifer was writing, telling her parents not to worry or contact law enforcement.
Cynthia Hill, a documentary filmmaker who grew up in eastern North Carolina, spent seven years documenting Stephen Pandos’ efforts to find his sister and the often-painful journey to seek the truth behind her disappearance—including learning that his parents were suspects at one point. The result is a riveting four-part docuseries, Burden of Proof, which premieres tonight on Max.
Hill’s Durham-based company Markay Media also created the HBO documentary Private Violence, which deals with domestic abuse. Pandos connected with her after seeing it, having come to believe his father physically abused his mother. The series follows him as he tries to get his mother to open up about her relationship with his father and what happened to his sister.
The Assembly viewed the first three installments of Burden of Proof and spoke with Hill and her subject about making the docuseries.
This interview has been edited for length and clarity.
The Assembly: How did this project come about?
Cynthia Hill: Stephen reached out to me in 2015. He was interested in having someone tell the story about his sister and the effects of what he felt was the trauma.
It was kind of an unbelievable story. For me and my team, it was the idea of—what is the trauma of your sister going missing when she’s 15, and what does that do to a family? And then, a couple of decades later, the police suspect [the parents], and what does that do to a family?
Stephen Pandos: I thought, given her experience, she would understand and appreciate the complications and nuances of my mother’s story in a way that other people wouldn’t.
The Assembly: The series includes some painful conversations between Stephen and his mother. How did you convince Margie Pandos to participate?
Hill: We’re all from eastern North Carolina.
Pandos: That common orientation was really important for my mother. She was doing this for me and for Jennifer.
Hill: When we first rolled up to talk to Margie, she was willing to have a conversation because Stephen asked her to do that. She practically did everything we asked her to do. But she did not understand why we wanted to film it. One thing I remember her saying was that I was not entitled to her pain. I never heard anyone put it quite like that.
As a filmmaker, you go into these situations, and you have things you pull out of your arsenal to convince people to participate in a project. It was clear those were not going to work for Margie. If she was going to participate, it had to have purpose for her.
The Assembly: How was it for the family to relive these painful memories?
Hill: It’s very raw. The family allowed us to be present. That’s a lot to ask, to give you that kind of access and insight. It was an emotional rollercoaster for them.
The Assembly: You shot this over seven years, as Stephen discovered things he hadn’t previously known. What was that like?
Hill: We honestly didn’t know that was where this journey was going to take us. We were hoping for two years when we first started. I think that’s the beauty of being a filmmaker—you don’t know what is going to happen.
Pandos: I felt I participated in the ultimate experiment in trust. I was always governed by the interest of justice for Jennifer. If that means I have to be a little uncomfortable or vulnerable or raw through this, it’s worth it.
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On Our Radar
>> Kinsley v. Ace Speedway Racing
After Alamance County’s Ace Speedway openly defied state pandemic restrictions in 2020, former N.C. Health and Human Services Secretary Mandy Cohen—recently tapped to be President Biden’s next head of the Centers for Disease Control and Prevention—issued an order forcing the racetrack to close for three months.
Ace sued, alleging that the state had infringed on its business and retaliated over owner Jason Turner’s criticism of the rules. (“People are not scared of something that ain’t killing nobody,” Turner told the Burlington Times-News.)
In 2022, an N.C. Court of Appeals panel unanimously rejected the state’s attempt to dismiss the lawsuit. The three judges allowed what they called Ace’s “novel” argument that the pandemic restrictions were unconstitutional to proceed. They also said Ace could claim Gov. Roy Cooper’s administration unfairly targeted the racetrack—despite acknowledging that legal precedent permits the government to single out “outspoken individuals” to deter others.
The case has now gone to the N.C. Supreme Court, which will likely hear arguments later this year and almost certainly allow Ace’s lawsuit to go to trial.
More interesting, however, is the Supreme Court’s decision to allow an amicus brief from the ACLU of North Carolina asking to expand the legal standard for selective enforcement.
To win under the state’s current standard, Ace will have to prove at trial both that it was “singled out” and that the state acted with “invidious [or] bad faith.” The ACLU wants the court to remove the second requirement, which it says puts “claimants at an often-insurmountable disadvantage against the state.” Likening the standard to police officers’ qualified immunity protections, the ACLU said it is “nearly impossible to satisfy in practice and allows government officials who willfully violate the constitution to evade accountability time and time again.”
The state can show that it did not retaliate later, the ACLU said. But it shouldn’t be easy to get the case dismissed early on. Because public records statutes shield law enforcement investigations, those who believe they’ve been retaliated against usually can’t obtain evidence about officials’ motives until discovery. But they’ll never get discovery if their case is tossed right away because they can’t prove bad faith, the ACLU argued.
>> Irving et al. v. City of Raleigh
The latest chapter in the saga of former Raleigh Police Det. Omar Abdullah concluded last week when attorneys for Kenya Walton and Yolanda Iriving announced a $350,000 settlement with the city. As we reported here, here, and here, Abdullah arrested 10 Black men in 2019 and 2020 for trafficking heroin that turned out to be counterfeit.
The settlement comes after a Raleigh SWAT team raided Walton’s and Irving’s homes in May 2020 based on a wrong address Abdullah wrote on a search warrant—which was also based on a fake heroin deal.
In 2021, the city paid $2 million to those Abdullah and his confidential informant targeted, and suspended Abdullah. He was fired in 2022. Abdullah—a teetotaling arts major who now DoorDashes for a living, according to depositions—faces one more lawsuit from a man who says Abdullah planted crack in his underwear during a strip search in 2018. Wake County District Attorney Lorrin Freeman dismissed the man’s charges, though not before he spent three years in prison. Abdullah has denied the allegation.
Of note to Durham officials: Raleigh isn’t refusing to pay the people Abdullah wronged.
Have any suggestions for improving this newsletter or stories we should look into? Email us at courts@theassemblync.com.
A Black Teen. A White Woman. A Life Sentence.
Charles McNeair was 16 when a white woman accused him of rape. His advocates say the case deserves another look.
Durham’s New Model for Public Safety
The city launched its unarmed emergency response team amid a fierce debate over policing. Now the program is poised to expand.
Phil Berger Sr.’s Plan for N.C. Courts
The budget Senate leaders released this week proposes several major changes to the courts and criminal justice system.
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