# HOWARD v. CITY OF DURHAM

> District Court, M.D. North Carolina · May 27, 2022

URL: https://www.frixlaw.com/law-library/cases/10254054

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** May 27, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254054

## How later opinions describe it (automated extraction)

- holding a party is foreclosed from objecting to a jury instruction it proposed and the court adopted
- affirming district court’s denial of Defendant’s Rule 50(b
- noting that a party’s failure to object to the form of special interrogatories waives that challenge on appeal

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DARRYL ANTHONY HOWARD, )
)
Plaintiff, )
)
v. ) 1:17cv477
)
DARRELL DOWDY, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.
This is a wrongful conviction case that, after a nearly four-
week jury trial in November 2021, resulted in a $6 million verdict
for the Plaintiff, Darryl Howard. Before the court is Dowdy’s
renewed motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50(b) (Doc. 339), which is fully briefed.
For the reasons set forth below, Dowdy’s motion will be denied.
I. BACKGROUND
On November 27, 1991, Doris Washington and her 13-year-old
daughter, Nishonda, were found dead in their Durham, North Carolina
apartment after the local fire department responded to reports of
a fire. Doris died from a blunt force strike to the abdomen;
Nishonda was strangulated. Medical evidence suggested both had
some form of prior sexual activity. Defendant Dowdy conducted the
investigation by the Durham Police Department (“DPD”), and
eventually Howard was charged with the murders and arson. In 1994,
DNA evidence ruled Howard out as a contributor to any sexual
activity involving the victims, and he was released from custody
pending trial. Howard was tried for the crimes in March 1995, and
following testimony by multiple witnesses including Howard
himself, a jury convicted Howard and sentenced him to 80 years of
imprisonment. But in 2009, Howard took advantage of a new state

law and sought and obtained retesting of the semen and sperm taken
from the victims, which linked the DNA contributed to Doris
Washington to an individual named Jermeck Jones; based on this,
Howard obtained a December 2016 state court ruling granting him a
new trial. The State thereafter dismissed all charges, and this
lawsuit followed. On April 30, 2021, North Carolina Governor Roy
Cooper issued Howard a Pardon of Innocence.
Trial commenced on November 8, 2021, and concluded on December
1, 2021, when the jury returned a verdict in favor of Howard and
awarded him $6,000,000.00 in compensatory damages. (Doc. 327.)
Howard presented 13 witnesses, either in person or by deposition.

Three bases for liability were submitted to the jury, all pursuant
to 28 U.S.C. § 1983: whether Dowdy fabricated two pieces of
evidence in the criminal trial -- a taped statement from a witness
named Angela Oliver1 and evidence regarding Dowdy’s investigation

1 Angela Oliver went by various names during the Washington homicide
investigation and Howard’s 1995 criminal trial, including: Angela
Southerland, Theresa Simpson, and Angela Rogers. (Doc. 72-1 at 283:4-
11, 305:23-306:13.)
into whether Nishonda Washington was sexually assaulted; whether
Dowdy suppressed evidence by failing to disclose that a state
witness in the criminal trial, Roneka Jackson, was a confidential
informant for the DPD and was associated with the New York Boys
gang; and whether Dowdy engaged in a bad faith failure to
investigate the source of the semen found in Nishonda Washington

in order to cover up his fabrication of evidence with respect to
Angela Oliver.
At the close of evidence, Dowdy moved for judgment as a matter
of law on all three issues, arguing principally that Howard had
failed to carry his burden in proving his suppression or inadequate
investigation claims and had failed to show that the alleged
fabrication of Angela Oliver’s statement could have been a but-
for or proximate cause of Howard’s conviction. (Doc. 324; Doc.
334 at 248:10-249:1.) The court reserved ruling. (Doc. 334 at
271:13-24.)
The jury was charged on November 30, 2021, and deliberated

until the following day. In returning its verdict, the jury found
that Dowdy had denied Howard’s constitutional right to due process
by fabricating evidence and by engaging in a bad faith failure to
investigate. (Doc. 327.) However, the jury found that Dowdy had
not suppressed evidence of the state witness’s status as a
confidential informant with connections to a local gang. (Id.)
On the same day, the court ruled on Dowdy’s motion for judgment as
a matter of law. (Doc. 329.) The court denied Dowdy’s motion as
to suppression, finding it moot in light of the jury’s verdict.
The court further denied Dowdy’s motion as to Howard’s fabrication
and bad faith failure to investigate claims after determining there
was sufficient evidence from which a jury could have reached the
verdict it returned. (Doc 336 at 11:8-14.) The court entered

judgment on December 7, 2021 (Doc. 330), which it amended on
December 9 (Doc. 331).2
II. ANALYSIS
Dowdy renews his motion for judgment as a matter of law based
on two arguments. First, he contends that Howard failed to proffer
sufficient evidence from which the jury could have concluded that
the fabrication of Angela Oliver’s testimony at Howard’s criminal
trial was a but-for and proximate cause of his conviction in 1995.
(Doc. 340 at 6.) Second, he asserts that there is insufficient
evidence to support Howard’s bad faith failure to investigate
claim. (Id. at 16.)

A. Standard of Review
“To challenge the sufficiency of the evidence in a civil jury
trial . . . a party must comply with Federal Rule of Civil Procedure
50,” which “sets out two different stages for such a challenge.”

2 The difference between the two is the amended judgment enumerates the
jury’s monetary award of $6,000,000.00 rather than entering judgment in
favor of Howard “in accordance with the verdict” as in the initial
judgment.
Belk, Inc. v. Meyer Corp., 679 F.3d 146, 154 (4th Cir. 2012). Rule
50(a) “allows a party to challenge the sufficiency of the evidence
before a case is submitted to the jury,” whereas Rule 50(b) “sets
forth the requirements for challenging the sufficiency of the
evidence after the jury verdict and entry of judgment.” Id. at
155. Judgment as a matter of law is appropriate where a plaintiff

has been fully heard on an issue but has failed to produce
sufficient evidence for a jury to find for him. Fed. R. Civ. P.
50(a)-(b); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 149 (2000). The standard for judgment as a matter of law
mirrors the standard for granting summary judgment “such that ‘the
inquiry under each is the same.’” Reeves, 530 U.S. at 150 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986)); see
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644
(4th Cir. 2002) (“[a] Rule 50(b) motion for judgment as a matter
of law follows the same standard as a Rule 56 motion for summary
judgment). A motion under Rule 50(b) “tests the legal sufficiency

of a claim, that is, assesses whether the claim should succeed or
fail because the evidence developed at trial was insufficient as
a matter of law to sustain the claim.” Belk, Inc., 679 F.3d at
155. Because the Defendant moved for judgment as a matter of law
at the end of Howard’s evidence and then renewed the motion at the
end of all evidence, the court considers the record at each
appropriate time, though Dowdy’s briefing only addresses the trial
record as a whole, and the court is to “review the record as a
whole” but “must disregard all evidence favorable to the moving
party that the jury is not required to believe.” Reeves, 530 U.S.
at 151. All reasonable inferences must be drawn in favor of the
nonmoving party, and the court is not permitted to make credibility
determinations or weigh the evidence. Id. at 150. The limited

review of the evidence is required by “the importance of the jury’s
role in trials . . . enshrined in the Seventh Amendment.” Burgess
v. Goldstein, 997 F.3d 541, 554 (4th Cir. 2021).
B. Fabrication of Angela Oliver’s Testimony
Howard presented two bases for his § 1983 claim that Dowdy
denied his due process rights by fabricating evidence. First,
Howard claimed that Dowdy fabricated statements from Angela Oliver
by interrupting the tape recording of his 1994 interview of her in
order to improperly feed her inculpatory information so that she
would give false answers that implicated Howard in the Washington
murders. Second, Howard claimed that Dowdy fabricated evidence

regarding his investigation into whether Nishonda Washington was
sexually assaulted by falsely advising the prosecutor that he had
evidence that she had been staying with her boyfriend up until the
evening before her murder, which would tend to rule out sexual
assault as part of the crimes and explain the exculpatory DNA
evidence found in Nishonda’s rape kit.
At the outset, Howard correctly points out that Dowdy’s Rule
50 motion does not challenge the sufficiency of the evidence
presented in support of the second basis for Howard’s fabrication
claim –- that Dowdy fabricated his investigation into whether 13-
year-old Nishonda Washington was sexually assaulted in connection
with her murder. (Doc. 344 at 3.) The evidence at trial on this
issue tended to show that Dowdy advised the prosecutor, Michael

Nifong, that he had conducted an investigation into Nishonda’s
whereabouts before the murder and confirmed that she had returned
home the day of the murder, thus tending to suggest prior
consensual sexual conduct with an older boyfriend and tending to
rule out sexual assault in connection with her murder. Evidence
related to this claim is more fully discussed later in this
memorandum opinion in connection with Dowdy’s challenge to the
verdict on Howard’s bad faith failure to investigate.3 Because
this unchallenged ground provides an independent basis to support
the verdict, on this basis alone the Rule 50 motion is denied.
See, e.g., Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber

Co., 682 F.3d 292, 313-14 (4th Cir. 2012) (affirming district
court’s denial of Defendant’s Rule 50(b) and Rule 59 motions even
though the jury’s verdict was reversed on some claims, because the

3 While the bad faith failure to investigate ground required Howard to
prove that Dowdy acted with bad faith, this alternative basis for the
fabrication of evidence ground did not require any proof of bad faith.
See, e.g., Massey v. Ojaniit, 759 F.3d 343, 354 (4th Cir. 2014) (a § 1983
claim based on fabrication requires proof of a deliberate fabrication
of false evidence that resulted in the deprivation of a plaintiff’s
liberty).
verdict was still independently supported by other claims).
As for the first ground, Dowdy’s contention is also
unpersuasive. The evidence at trial was as follows. On October
10, 1992, DPD officers, other than Dowdy, arrested Angela Oliver
for prostitution. (Doc. 294-3 at 14:12-24.) After her arrest,
those officers informed Dowdy that Oliver claimed to have been

with Howard the night of the Washington murders. (Doc. 87-2 at
320:24-321:5.) The officers also told Dowdy that Oliver had
information that only an individual who witnessed the murders would
know. (Id. at 321:9-12.) At that point, Dowdy interviewed Oliver
and audio-recorded their conversation. (Id.; Doc. 87-8 at 30.)
The recording itself (which was in DPD possession) went missing
after the criminal trial, and the only evidence of its contents
comes from a transcription contained in Dowdy’s file. The
transcript reflects that Oliver informed Dowdy that she had seen
Howard arguing with Doris Washington about drugs and money the day
of the murders and she had seen Howard attack Doris at the time of

the murders while Howard’s brother, Harvey, was present in the
apartment. (Doc. 88-32 at 2-3, 6-7, 10.)
However, there were discrepancies that called the validity of
the transcription, and thus the taped interview, into question.
Oliver’s taped interview is approximately 10 minutes long; yet,
Dowdy’s contemporaneous notes reflect that the interview took
place over 46 minutes. (Doc. 309 at 25:5-10.) At Howard’s
criminal trial, Dowdy testified that he could not fully explain
this timing difference. Dowdy justified the time difference by
stating that he may have stopped the interview to “go[] back over
what [Oliver] was saying” or “to clarify some information she may
have been telling [him].” (Doc. 87-2 at 337:13-14, 338:1-2.) He
also stated he must have written down the wrong time or been

interrupted by other officers when he stopped the recordings.
(Doc. 72-1 at 385:16-386:8, 401:15-402:11.) Dowdy reiterated
these justifications to the civil jury in the present action.
(Doc. 309 at 8:11-9:25; 34:12-19.)
Oliver testified at Howard’s criminal trial. She was
combative, recalcitrant (she had to be arrested to be brought to
court as a material witness to testify), and evasive. She
testified that Dowdy stopped the tape multiple times because he
said she “wasn’t talking right or something.” (Doc. 289-2 at
308:8-11.) She told the criminal jury that she did not know
anything about the Washington murders, even though her recorded

statement reflected details which would only be known by a witness
to the crime. (Id. at 308:25-309:2.) She also eventually adopted
the taped recording as accurately reflecting the interview and, at
different times in her testimony, prevaricated between testifying
that the recording (and thus her statement) was truthful, truthful
in part, and something she “d[id]n’t want to talk about.” (Doc.
72-1 at 300-305.) Importantly, Oliver was the only witness who
claimed to be present in Doris’s apartment during the murders and
to have observed Howard’s alleged attack of Doris, including
knowing about the injury to Doris’s chest which caused her death
and which was not publicly known at the time of her interview.
Dowdy’s repeated and inconsistent explanations for the time
discrepancies in Oliver’s taped statement called into question the

veracity of the transcript of Oliver’s taped statement. (Doc. 87-
8 at 36.)
After years of attempting to locate Oliver after the criminal
trial, Howard finally located and deposed her in this case shortly
before trial, and portions of her videotaped deposition were played
to the jury during Howard’s direct case. Oliver’s testimony was
combative, evasive, and fraught with inconsistencies.4 But these
issues of credibility were for the jury to assess, and her
testimony is viewed at this stage in the light most favorable to
Howard.
When asked directly by Plaintiff’s counsel whether she had

ever witnessed any part of the Washington murders, Oliver
responded, “I never witnessed any murder in my life.” (Doc. 294-
3 at 10:13-16.) In fact, Oliver denied being present at the scene
of the Washington murders that night. (Id. at 10:19-23.) As to

4 For example, Oliver claimed to be unable to read but is recorded on
the tape and testified at the criminal trial that she was able to read
well. (Doc. 294-3 at 8:25-9:23.) She also adopted the taped interview
as accurate during the criminal trial (Doc. 72-1 at 300:14-25), though
in this case she renounced it.
her taped statement to the contrary, Howard’s counsel asked “[i]f
you did not witness the homicide, how did you learn the details
that you –- that are contained in [the transcribed statement] from
your interview [with] Darrell Dowdy?” (Id. at 17:15-18.) Oliver
responded, “He [Dowdy] must have let me know. I was locked up for
the solicitating. Solicitating ain’t going to carry that much

time. Why would I know or worry about a murder?” (Id. at 17:19-
22.)
Oliver was also asked directly about Dowdy stopping the tape
multiple times during their interview. When asked, “what was
Detective Dowdy doing?” she responded, “Trying to convince me that
I seen something that I didn’t see.” (Id. at 39:10-12.) And when
asked, “Is that when Detective Dowdy was providing you information
about the . . . crime?” (id. at 39:18-21), Oliver replied,
“Exactly. Because trust me, I don’t know nothing about this, man.
I was trying to tell you then, I’m telling you now.” (Id. at
39:22-24.) Thus, there was sufficient evidence from which a jury

could find fabrication by a preponderance.
It is true that the level of detail Oliver provided in her
lengthy oral and written statement contrasted with her apparent
inability to coherently express herself in her videotaped
deposition. While the jury may have wondered whether and how
Oliver could have been successfully coached with so much detail
given her obvious limitations, and while the evidence of the three
“clicks” (Doc. 72-1 at 402:1-11) on the tape reflective of stopping
were demonstrated to have occurred at the beginning of the
statement and not throughout, these were issues for the jury. The
jury could also consider the fact that the physical tape recording
of Oliver’s original statement, which was left in DPD custody
during trial, is missing.

Dowdy argues that Howard “failed to present evidence allowing
a jury to find that the alleged fabrication of Oliver’s statement
was the but-for or proximate cause of Plaintiff’s conviction.”
(Doc. 340 at 6.) Dowdy argues that this is so because there were
“several other witnesses who provided inculpatory testimony” that
the criminal jury considered, and Howard did not establish that
his convictions were a reasonably foreseeable result of Oliver’s
fabricated statement. (Id. at 9, 13.) Howard responds that the
jury “had ample bases to support its finding that Defendant Dowdy’s
fabrication of evidence caused Plaintiff’s wrongful conviction.”
(Doc. 344 at 2.)

In evaluating whether Howard produced sufficient evidence as
to the causation element, the court must determine if the jury
reasonably found in favor of Howard after concluding that “the
facts [shown] by [Howard] demonstrate that the loss of liberty,”
that is, Howard’s conviction for the Washington murders, “resulted
from [Dowdy’s] fabrication of evidence.” Washington v. Wilmore,
407 F.3d 274, 283 (4th Cir. 2005). Howard was required to show
“both but-for and proximate causation.” Evans v. Chalmers, 703
F.3d 636, 647 (4th Cir. 2012). For but-for causation, there must
be sufficient evidence that “the alleged wrongful act(s) caused
[Howard’s] loss of liberty.” Gilliam v. Sealey, 932 F.3d 216, 238
(4th Cir. 2019). For proximate cause, Howard was required to
produce sufficient evidence at trial from which the jury could

reasonably conclude “the conviction was a reasonably foreseeable
result of the initial act of fabrication.” Massey v. Ojaniit, 759
F.3d 343, 354 (4th Cir. 2014) (internal quotations omitted). In
construing the evidence in the light most favorable to Howard, the
court must draw all reasonable inferences in his favor. Burgess
v. Goldstein, 997 F.3d 541, 552 (4th Cir. 2021). Under these
standards, it is apparent that Howard sufficiently carried his
burden.
The jury heard from Michael Nifong, the lead prosecutor in
Howard’s criminal trial. Nifong testified, without objection,
that he could not “imagine that we could have obtained a conviction

without [Oliver’s] testimony.” (Doc. 319 at 171:11-15.) When
asked by Dowdy’s attorneys on cross examination whether he
remembered Oliver being brought to testify before the criminal
jury, Nifong responded, “yes . . . she was a very important
witness.” (Id. at 205:21-206:1.) Nifong further noted that Dowdy
had not reported having threatened or coerced Oliver to give her
statement and, if he had, Nifong “had a duty to report that to the
Court and to the defense counsel.” (Id. at 172:1-173:3.)
Critically, Nifong’s testimony came after Oliver’s video
deposition was played for the jury and in which she stated plainly
that the reason she knew details of the murder was because Dowdy
“must have let [her] know” as she “never witnessed any murder in
[her] life.” (Doc. 294-3 at 10:13-19; 17:15-22.) Dowdy himself

testified in Plaintiff’s case that before the criminal trial he
believed he could only obtain a successful conviction for the
Washington murders “[a]fter Angela [Oliver’s] statement to me.”
(Doc. 316 at 164:16-23.) Dowdy “did not think or believe [he] could
make -- have a conviction” without Oliver’s statement. (Id. at
164:24-165:3.) According to Dowdy, Oliver was the key to Howard’s
conviction, because she “verified the fact that she was there [at
the scene of the murders]” and verified the other information Dowdy
“already had.” (Id. at 165:4-6.) In contrast, the jury heard
from Oliver, who plainly testified that she was never at the scene
of the crimes the night of the murders, that she never witnessed

a murder, and that Dowdy fed her information in her statement.
(Doc. 294-3 at 10:13-19; 17:15-22.)
Dowdy contends that Howard fails to demonstrate causation,
pointing to other evidence the State presented at the criminal
trial which he argues was sufficient to support the guilty verdict.
However, much of the evidence was largely circumstantial. For
example, Dowdy notes Roneka Jackson testified that she heard Howard
threaten to kill Doris Washington the day of the murders and saw
him and his brother exit the apartment later that night. (Doc.
340 at 13.) He also highlights Rhonda Davis’s testimony that she
went to visit Doris at her apartment about 11:30 p.m. and Howard
answered the door to say, “we’re busy.” (Id. at 14; Doc. 72-1 at
199:17-23.) But this was 88 minutes before the fire department

was called. (Doc. 72-1 at 53:11-23.) Another witness, Terry Suggs,
testified that he saw Howard near the Washington apartment
approximately three to five minutes before he saw smoke from the
apartment fire. (Doc. 340 at 14; Doc. 72-1 at 212:3-14.) Kelvin
Best told the jury that he saw Howard and his brother exiting
Doris’s building that evening carrying a television. (Id.; Doc.
72-1 at 228:6-25.) Dwight Moss testified that he heard Howard
threaten to kill Doris earlier that day for “messing up” a drug
deal and that he saw Howard about 11:30 p.m. that evening leaving
the backside of Doris’s apartment; the fire department was called
to the scene at 12:58 a.m. (Id. at 14-15; Doc. 72-1 at 53:11-23,

242:17-243:18.) Gwendolyn Roper Taylor testified that she
overheard Howard at a drink house that he had killed the
Washingtons. (Id. at 15; Doc. 72-1 at 333:2-24); see generally,
Howard v. City of Durham, 487 F. Supp. 3d 377, 392-98 (M.D.N.C.
2020).
Each of these witnesses carried arguable credibility issues,
ranging from prior drug use and criminal histories to
inconsistencies in their stories, which were put before the
criminal jury. Id. Nevertheless, Dowdy relies on these witnesses
as well as Robbie Davis, who testified that he heard Howard state
that Doris was going to kill Nishonda for being away with an older
man (Doc. 72-1 at 273:1-24), and Durham Fire Chief Milton Smith,
who testified that Howard told him he and his brother Kenny “did

this thing” in reference to the murders, to argue that there was
insufficient causation evidence to allow Howard’s claim involving
Oliver’s statement to go to the jury. (Doc. 340 at 16.) According
to Dowdy, “the wealth of inculpatory evidence against [Howard]
described above plus Howard’s own admission that he was at the
scene of the crime near the time of the murders” forecloses the
conclusion that Oliver’s statement was the but-for cause of his
conviction. (Id.)
However, the jury in the criminal trial also heard from
Howard, who testified in his defense and denied being present or
involved in the murders. (Doc. 72-1 at 498:1-7; 536:5-17.)

Further, Howard called one of his girlfriends, Natasha Mayo, to
the stand, who generally corroborated Howard’s testimony that he
was not in the Washington apartment the night of the murders and
that he was not involved in the homicides or arson. (Id. at 480:1-
10.) In sum, the State put on eight witnesses who all presented
circumstantial inculpatory evidence, while Howard himself
testified he had no involvement in the homicides and put forth
another witness who corroborated his testimony. In addition, the
1994 jury had to evaluate Oliver’s recorded statement with her
testimony at trial. Oliver’s statement provided a layer of
credibility beyond that offered by the State’s other witnesses;
she knew details of the crime that were not publicly disclosed,
adding credence to the suggestion that she was at the scene of the

crimes and witnessed Howard commit them.
The civil jury could therefore rely on the two witnesses most
intimately involved with Howard’s criminal prosecution –- the lead
prosecutor on the case, Nifong, and Defendant Dowdy, the lead
detective, both of whom acknowledged in this case that they were
unlikely to have obtained a conviction without Oliver’s testimony.
While Dowdy now points to other inculpatory testimony by other
witnesses at Howard’s criminal trial, Oliver’s testimony not only
put Howard at the scene of the Washington murders, but detailed
how Howard committed those murders with information known only to
the medical examiner and not released to the public. She was the

only witness who purported to observe Howard inflict Doris
Washington’s blunt-force chest injury which caused her death and
to specifically place Howard, who otherwise was a frequent
trespasser onto the grounds of the Washingtons’ apartment complex
(and thus seen there commonly by all the witnesses who testified),
in the Washingtons’ apartment during the murders. A reasonable
jury could conclude that it was not only reasonably foreseeable
that Oliver’s fabricated statement proximately caused Howard’s
convictions for the Washington murders, but that the convictions
would not likely have resulted but for her testimony.
For these reasons, the court therefore finds that, after
viewing the evidence in the light most favorable to Howard, he has
produced sufficient evidence from which a reasonable jury could

conclude that Oliver’s statement was fabricated and the but-for
and proximate cause of his wrongful conviction.
C. Inadequate Investigation
In addition to his claim of fabrication, Howard alleged that
Dowdy failed to investigate the source of semen found in Nishonda
Washington in a bad faith effort to cover up his fabrication after
DNA excluded Howard as the contributor of the semen. Dowdy
responds, in contrast, that Howard failed to produce any evidence
that, after Oliver gave her statement, “Dowdy intentionally failed
to follow up on an existing lead that pointed to an alternative
suspect for the Washington murders.” (Doc. 340 at 18-19.)

In general, there is no independent constitutional right to
the investigation of a third party. Sattler v. Johnson, 857 F.2d
224, 227 (4th Cir. 1988). However, a claim for a due process
violation for failing to perform an adequate investigation exists
where an officer takes bad faith actions to shield his wrongful
acts, including fabricating testimony. Gilliam, 932 F.3d at 240-
41. Howard thus needed to produce sufficient evidence at trial
from which a reasonable jury could conclude that Dowdy’s failure
to investigate the source of the semen found in Nishonda was the
product of a bad faith attempt to shield his fabrication of
Oliver’s statement. Put another way, Howard claims that Dowdy’s
failure to investigate Nishonda’s murder as contemporaneous with
a sexual assault (anal rape of a 13-year-old) was purposeful

because Dowdy had “tunnel vision” to prosecute Howard and knew
that details indicating a sexual assault occurred as part of the
crimes would be inconsistent with Oliver’s transcribed, and
allegedly fabricated, statement blaming Howard for a murder that
did not involve any sexual assault.
Dowdy points to Gilliam v. Sealey to argue that Howard’s
evidence fails to sufficiently support the inadequate
investigation claim. (Doc. 349 at 6); 932 F.3d 216, 240-42 (4th
Cir. 2019), cert. denied, 140 S. Ct. 2641 (2020). Gilliam stemmed
from the wrongful conviction of two teenage boys who brought suit
against the law enforcement officers who investigated the

underlying crime, alleging the officers coerced confessions from
the boys and then failed to adequately investigate other suspects.
On September 24, 1983, the victim, Sabrina Buie, went missing.
Id. at 222. Two days later, her body was discovered in a field
with overwhelming evidence that she had been sexually assaulted.
Id. While processing the crime scene, law enforcement officers
discovered three beer cans, three match sticks, one cigarette butt,
and two wooden sticks coated with blood. Id.
Three days after discovery of Buie’s body, officers
fingerprinted and questioned Henry McCollum, a potential suspect,
at the police station. Id. At the conclusion of the questioning,
McCollum, an intellectually disabled 19-year-old, signed a
confession drafted by the interviewing detectives. Id. at 233.

The confession also implicated McCollum’s brother, Leon Brown, as
participating in the crime. Id. After signing the confession,
McCollum and Brown were arrested and charged with murder. Id.
Despite arguments that the confessions were coerced, a jury found
McCollum guilty of rape and first-degree murder and sentenced him
to death. Id. at 224. A separate jury found Brown guilty of rape
and sentenced him to life in prison. Id. at 225.
In 2009, roughly 17 years after his conviction, Brown sought
assistance from the North Carolina Innocence Inquiry Commission,
which accepted both Brown’s and McCollum’s cases. Id. During its
investigation, the Commission discovered DNA evidence on the

cigarettes located near Buie’s body which matched the DNA of Roscoe
Artis, a man known to law enforcement officers during the Buie
murder investigation. Id. Artis was convicted of rape and murder
in a crime “strikingly similar to Buie’s murder” when the body of
another woman was found just one month after Buie’s. Id. As is
the case here, the DNA tested from the scene of Buie’s murder did
not match McCollum or Brown, and the only DNA evidence that was
tested after the fact matched someone else –- Artis.
Documents recorded prior to McCollum and Brown’s first trials
listed Artis as a suspect in the Buie murder. Id. at 228. On
October 5, 1984, three days prior to McCollum and Brown’s first
trial, investigators submitted Artis’s fingerprints to the State
Bureau of Investigation to compare with those found on the beer

can at the Buie crime scene. Id. However, the investigators
canceled the fingerprint request on the same day, and the
comparison was never completed. Id. This, despite the fact that
an additional witness had come forward and informed the
investigators that she “witnessed Artis attacking Buie on the night
of the murder, and that she attempted to intervene[,] but Artis
frightened her away.” Id. Although the witness testified that
she provided this information to one of the investigators,
Detective Sealey, the detective’s contemporaneous investigation
notes did not reflect her testimony. Id.
Additionally, investigators interviewed L.P. Sinclair, a

friend of McCollum and Brown’s, who originally claimed he did not
know anything about Buie’s death. Id. However, when the State
Bureau of Investigation marked him as a suspect and ordered
analysis of his fingerprints, Sinclair changed his story and
testified that McCollum had confessed to him the day after Buie’s
murder. Id. Sinclair’s fingerprints were not analyzed after he
changed his testimony.
Relevant to the claims in this case, McCollum and Brown sued
the investigators, alleging violations of their right to due
process when the investigators failed to sufficiently investigate
Artis and Sinclair in connection with Buie’s rape and murder. Id.
at 240. McCollum and Brown argued that the investigators had
failed to test whether Artis’s or Sinclair’s fingerprints matched

the print found on the beer can at the crime scene. Id. In
affirming the district court’s denial of the defendants’ motion
for summary judgment, the Fourth Circuit noted that McCollum and
Brown’s claims were that the investigators’ “failure to
investigate was a result of their bad-faith suppression of
evidence.” Id. at 241. That claim could amount to a due process
violation if “the jury concluded that [the investigators’] actions
after [McCollum and Brown’s] arrests –- including failing to
adequately investigate Artis and the crime scene . . . –- were
done in bad faith in order to shield [the investigators’] wrongful
acts related to [McCollum and Brown’s] coerced or fabricated

confessions.” Id. In other words, had the investigators failed
to analyze Artis’s or Sinclair’s fingerprints in bad faith to
shield their coercion of McCollum or Brown’s confession, then
McCollum and Brown could establish a due process violation.
Dowdy argues that Howard “did not produce similar evidence
that, after Oliver gave her statement, Dowdy intentionally failed
to follow up on an existing lead that pointed to an alternative
suspect for the Washington murders.” (Doc. 340 at 18-19.)
However, Gilliam does not require “an existing lead” that points
to another suspect. All Gilliam requires is sufficient evidence
from which a jury could conclude that Dowdy failed to investigate
material evidence –- here, the whereabouts of Nishonda and her
boyfriend -- in an effort to shield his fabrication of Oliver’s

statement, and Howard has satisfied that requirement.
The autopsy of Nishonda Washington reveled sperm in her anus.
(Doc. 87-18 at 6.) In February 1993, DPD obtained samples of
Howard’s DNA to test against this sperm. (Doc. 87-8 at 46.) A
DNA test from March 1993 excluded Howard as the source of the
sperm. (Doc. 87-21.) Dowdy thus understood at that time, before
trial, that if the killer had had sex with Nishonda, Howard was
not the killer. (Doc. 87-2 at 183:24-184:4.) The question then
was whether the killer had sex with Nishonda before her death and,
if so, who he was.
Dowdy provided Nifong an answer to the first question –- that

Nishonda had been away from the Washington apartment with her
boyfriend for four or five days and returned the night before the
murders. (Doc. 72-1 at 423::8-19; Doc. 309 at 97:13-20.) Based
on this information, Nifong proceeded to trial and presented this
information to the criminal jury. (Doc. 319 at 158:3-25.) Dowdy’s
theory at the time was that the semen located in Nishonda’s anus
was her boyfriend’s (Doc. 309 at 97:21-98:1), which meant that the
killer did not have sex with Nishonda prior to the murders.
According to Dowdy’s representations to Nifong, the DNA testing of
the sperm in Nishonda did not exclude anyone from being the
murderer, because it came consensually from Nishonda’s
unidentified boyfriend. Dowdy admitted on the stand before the
civil jury that he testified in the criminal trial that the semen

found in Nishonda was consensual based on his “thought . . . that
she was with her boyfriend” prior to the murders. (Id. at 151:10-
24.) At Howard’s criminal trial, Dowdy testified definitively
that he did not suspect Nishonda had been sexually assaulted,
because she was with “her boyfriend” for “almost a week” prior to
the murders, and only returned mere hours prior to her murder.
(Doc. 72-1 at 422:25-423:19.)
However, Howard produced evidence which called into question
the validity of Dowdy’s investigation. For instance, Dowdy wrote
in his report that a witness, Ella Moore, informed him that
Nishonda had been away for four days and returned on Sunday –- two

days before the murders. (Doc. 87-8 at 9-10.) Despite this, Dowdy
consistently noted that Nishonda “returned the day of the
homicide.” (Doc. 309 at 99:23-25.) In fact, none of the witnesses
Dowdy listed in his report corroborated his timeline.5 Dowdy later

5 For instance, another witness Dowdy interviewed was Alice Gordon, who
stated that she had not seen Doris or Nishonda for a week prior to the
murders. (Doc. 309 at 164:7-165:16.) Gordon provided no information
as to when Nishonda came home, and the only witness who does provide
that information is Moore. (Id. at 165:15-20.)
suggested that he may have prepared notes of conversations with
neighbors following Nifong’s request shortly before Howard’s
criminal trial; however, those notes are missing. (Doc. 87-2 at
178:18-181:22.) Furthermore, he explained to the civil jury that
handwritten notes are not given to the prosecutor, so anything
relevant from those interviews would have to be in Dowdy’s report,

otherwise the prosecutor would not know of the information obtained
in those interviews. (Doc. 309 at 72:7-12.) But Dowdy never
submitted any handwritten notes to the prosecutor or otherwise
included them in his report because, he maintained, they failed to
turn up any new evidence. Therefore, the only evidence included
in Dowdy’s report indicated that Nishonda returned on Sunday, and
nowhere is there any evidence that she returned Tuesday evening.
Nevertheless, Dowdy told the prosecutor that Nishonda had returned
on Tuesday, and the prosecutor relied on that in his questioning
of Dowdy and his representations to the criminal jury at trial.
(Doc. 72-1 at 423:8-19; Doc. 309 at 106:5-20.) In the present

case, Dowdy relied only on his own testimony to support his
representation of Nishonda’s whereabouts.
The timing of Nishonda’s return was critically important. At
Howard’s criminal trial, the jury was told that the sperm found in
Nishonda’s rape kit had been deposited within approximately 24
hours of the autopsy, which took place at 10:00 a.m. the day after
the murders. (Doc. 72-1 at 80:17-25.) In the present case, the
jury heard testimony from two DNA experts, one from each side, who
both concluded that the sperm had most likely been deposited within
24 hours of the time the samples were taken at autopsy. (Doc. 306
at 127:11-21; 187:6-22.) If Nishonda had returned on Sunday, as
Dowdy’s report indicates, she would have returned two days prior
to the murders and, whether or not she was with a boyfriend, she

would have returned far outside the 24-hour window of likelihood
established by the sperm found at autopsy. Yet, Dowdy told the
prosecutor that he had investigated Nishonda’s whereabouts and
concluded she was with her boyfriend, returning only on the evening
of the murders even though his report reflected contradictory
evidence that she returned on Sunday, outside the likely window
established by the analysis of sperm at her autopsy.
Dowdy conceded that any potentially relevant information had
to be included in a police report. (Doc. 309 at 128:16-22.) He
acknowledged that evidence as to whether or not Nishonda had a
boyfriend would be relevant and would have been part of the police

file. (Id. at 128:23-129:2.) However, his file contains no
evidence about Nishonda’s boyfriend or her returning to the
Washington apartment within 24 hours of the autopsy as indicated
by the sperm. (Id. at 129:3-6.) When asked at trial why there
was no such evidence, Dowdy testified that “[t]here was a detective
who was actually assigned to follow up on the aspect of
[Nishonda’s] boyfriend. Detective A.J. Carter, in particular, did
the follow-up in reference to the boyfriend and the whereabouts of
Nishonda Washington.” (Id. at 129:8-16.) This was the first time
in the 26-year history of this case that Dowdy disclosed the
identity of a Detective Carter or otherwise indicated that Carter
was the one who investigated Nishonda’s whereabouts. In fact,
Howard presented to the jury Dowdy’s responses to interrogatories

seeking the names of all persons with knowledge of the case, and
of the 21 persons named, Carter is not one of them. To complicate
matters, Dowdy indicated that Carter is deceased and his files are
likely missing due to the passage of time. (Id. at 132:10-15.)
Dowdy’s representations led Nifong to elicit his testimony at
Howard’s criminal trial that he had determined Nishonda’s
whereabouts for the time prior to her murder, that she was with
her boyfriend, and she returned the evening immediately prior to
her murder.6 (Id. at 96:2-20.) This explained away the semen
found in her body and, more importantly, the fact that Howard’s
DNA did not match it. In the present case, Dowdy conceded that,

based on the information he had, he “thought” Nishonda was with
her boyfriend prior to the murders. (Id. at 151:10-15.) Dowdy
also professed that he had no memory of talking to any other
witnesses in this case beyond those listed in his report. (Id. at

6 It is not entirely clear how Nifong was permitted to elicit this hearsay
testimony from Dowdy in the state trial as to what neighbors told him
about when Nishonda returned home.
65:2-6.) Given Dowdy’s inconsistent explanations as to Nishonda’s
whereabouts over the course of this case, the competing evidence
that discredits his conclusion that Nishonda returned hours before
she was murdered, and the fact that Dowdy understood the
prosecutors were relying on his statements that Nishonda was with
her boyfriend prior to the murder, Howard presented sufficient

evidence from which the jury could conclude that Dowdy inadequately
investigated Nishonda’s boyfriend as the source of the semen found
in her anus at the time of her murder.
The jury also could have reasonably concluded that Dowdy
purposefully failed to adequately investigate this aspect of the
case to shield his fabrication of Oliver’s statement. Had Dowdy
investigated Nishonda’s boyfriend and determined – as the only
evidence in his report supported -- that Nishonda had returned
days, rather than hours, before her murder, it would have seriously
undermined the state’s case by leaving unexplained the semen found
in Nishonda’s anus. This would have called into question the

validity of Oliver’s testimony, because at no point did Oliver’s
original statement – or any other evidence – suggest that Howard
sexually assaulted Nishonda. Thus, because a reasonable jury could
conclude that failure to tie the semen to the alleged boyfriend
would seriously undermine Oliver’s original statement, it could
conclude that Dowdy inadequately investigated Nishonda’s
whereabouts and her alleged boyfriend in an attempt to shield his
fabrication of Oliver’s statement from more intense scrutiny. As
such, Dowdy’s renewed motion as a matter of law will be denied.
Dowdy next presents an ancillary argument that the format of
the jury instructions and the verdict sheet warrant a new trial,
because “the jury was not asked to separately answer a question as
to whether Oliver’s statement was fabricated.” (Doc. 340 at 19.)

Dowdy frames this request for a new trial pursuant to Rule
50(b)(2). (Id. at 5.) However, as the court has already stated,
Dowdy’s Rule 50 motion is unpersuasive. Pertaining to the jury
instructions, Dowdy states “if the Court does not grant judgment
as a matter of law for the defendant, it should order a new trial
as to this issue.” (Id. at 20.) Therefore, as Dowdy seems to
separate his request for a new trial from his renewed motion as a
matter of law, and because the court has denied his motion as a
matter of law, the court construes Dowdy’s argument as a request
pursuant to Federal Rule of Civil Procedure 59. Pursuant to Rule
59, a district court may grant a new trial if “(1) the verdict is

against the clear weight of the evidence, or (2) is based upon
evidence which is false, or (3) will result in a miscarriage of
justice, even though there may be substantial evidence which would
prevent the direction of a verdict.” Bilenky v. Ryobi Techs.,
Inc., 115 F. Supp. 3d 661, 668 (E.D. Va. 2015) (quoting Atlas Food
Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d 587, 594
(4th Cir. 1996)), aff'd, 666 F. App'x 271 (4th Cir. 2016). “The
decision to grant or deny a motion for a new trial lies at the
heart of the district court's sound discretion and ‘will not be
disturbed absent a clear showing of abuse of discretion.’” Gibson
v. Total Car Franchising Corp., 223 F.R.D. 265, 276 (M.D.N.C. 2004)
(quoting Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir.
1985) cert. denied, 475 U.S. 1016 (1986)).

As to Howard’s fabrication claim, the court instructed the
jury that Howard alleged that Dowdy fabricated two pieces of
evidence –- Oliver’s taped statement and Dowdy’s investigation
into whether Nishonda was sexually assaulted. (Doc. 328 at 11.)
The jury instructions expressly informed the jurors that
“[a]lthough Plaintiff alleges two separate fabrications of
evidence, you may find the Defendant liable based on either or
both pieces of evidence as long as you unanimously agree that the
Plaintiff has proven by a preponderance all the elements as to
that piece of evidence.” (Id.) For Howard’s bad faith failure to
investigate claim, however, the court instructed the jury, “[i]f

you do not find the Defendant liable for fabrication with respect
to Angela Oliver, as set out earlier in these instructions, then
you may not find the Defendant liable on this claim.” (Id. at
15.)
The verdict form posed two questions. The first asked:
1. Has Plaintiff Darryl Howard proven by a
preponderance of the evidence that Defendant
Darrell Dowdy violated 42 U.S.C. § 1983 by
denying him his constitutional right to due
process by:

a. Fabrication of evidence: ___________
b. Suppression of evidence: ___________
c. Bad faith failure to investigate: _________

(Doc. 327.) The second question asked, if the jury answered yes
to any part of the question above, what amount of compensatory
damages Howard should recover of Dowdy. (Id.)
The jury answered “yes” to questions 1(a) and 1(c). (Id.)
In finding that Howard had carried his burden and proven both his
fabrication of evidence claim and his bad faith failure to
investigate claim, the jury awarded Howard $6,000,000 in
compensatory damages. (Id.) Because the jury was instructed
that the inadequate investigation claim required the jury to have
found that Oliver’s statement was fabricated and the jury’s verdict
form reflects a finding that Dowdy fabricated evidence but does
not enumerate which specific evidence the jury found he fabricated,
Dowdy argues the court should order a new trial as to the bad faith
failure to investigate claim. (Doc. 340 at 20.)
“A jury is presumed to follow the instructions of the court.”
Stamathis v. Flying J, Inc., 389 F.3d 429, 442 (4th Cir. 2004).
“[A]bsent some specific ‘reason to doubt that the jury . . .
adhered to the district court’s directive,’” the court must assume
the jury followed the instructions. United States v. Runyon, 707
F.3d 475, 497 (4th Cir. 2013) (quoting United States v. Castillo-
Pena, 674 F.3d 318, 322 (4th Cir. 2012)). With respect to Howard’s
bad faith failure to investigate claim, the court expressly
instructed the jury that “[i]f you do not find the Defendant liable
for fabrication with respect to Angela Oliver, as set out earlier
in these instructions, then you may not find the Defendant liable
on this claim.” (Doc. 328 at 15.) Dowdy has provided no evidence

or explanation that calls into the doubt the presumption that the
jury understood and followed this instruction, and thus the court
will not disturb the jury’s verdict.
In his reply brief, Dowdy argues that the verdict form was
structured such that there was a “lack of a clear indication from
the jury that it decided in Plaintiff’s favor with respect to the
claim of fabrication of Oliver’s statement.” (Doc. 349 at 8.) To
the extent Dowdy now objects to the verdict form, he has waived
that complaint by having failed to raise that objection before the
jury retired to deliberate. See Fed. R. Civ. P. 49(a)(3); AG Sys.,
Inc. v. United Decorative Plastics Corp., 55 F.3d 970, 973-74 (4th

Cir. 1995) (noting that a party’s failure to object to the form of
special interrogatories waives that challenge on appeal).
Dowdy’s argument that the verdict sheet is insufficiently
detailed is also lacking in merit. In his own proposed jury
instructions, Dowdy made no mention of Oliver’s statement
regarding Howard’s bad faith failure to investigate claim. Rather,
Dowdy proposed an instruction which read in part that Howard must
prove the following:
1. That Defendant Darrell Dowdy deliberately
suppressed material exculpatory evidence from
the prosecutor and/or deliberately fabricated
material evidence.

2. That Defendant Darrell Dowdy then
deliberately in bad faith failed to conduct an
adequate investigation to shield such
fabrication and/or suppression of evidence.

3. That such deliberate failure to investigate
resulted in Plaintiff Darryl Howard’s
conviction and imprisonment.

(Doc. 281 at 26.) Unlike the court’s final jury instructions,
Dowdy’s proposed instructions did not advise the jury at all that
Howard’s bad faith failure to investigate claim required the jury
to have found that Dowdy fabricated Oliver’s statement.
In addition to the jury instructions, Dowdy also advocated
for the court to structure the verdict form in a way that is
similar to that to which he now objects. Dowdy’s proposed verdict
form included three simple questions:
1. Did Plaintiff Darryl Howard prove by a preponderance of
the evidence that Defendant Darrell Dowdy deliberately caused
Plaintiff Darryl Howard to be deprived of his constitutional
right to a fair trial?

Yes _________ No _________

2. Did Plaintiff Darryl Howard prove by a preponderance of
the evidence that Defendant Milton Smith7 Deliberately caused
Plaintiff Darryl Howard to be deprived of his constitutional
right to a fair trial?

7 Milton Smith was dismissed as a Defendant by Howard just before trial.
(Doc. 305.)
Yes _________ No _________

If you answer Issue No. 1 or No. 2 in favor of Plaintiff
Darryl Howard, proceed to answer Issue No. 3. If you answer
Issue No. 1 and No. 2 “No” in favor of Defendants Darrell
Dowdy and Milton Smith, that is your verdict and you shall
not answer Issue No. 3.

3. In accordance with the Court’s instructions regarding
compensatory damages, please state the amount, if any, of
damages Plaintiff Darryl Howard has proven by a preponderance
of the evidence.

$ _________

(Doc. 279 at 1-2.) Dowdy’s proposed verdict form made no mention
of Oliver’s testimony and, in fact, did not separate out Howard’s
claims at all. Rather, Dowdy requested that the court group all
of Howard’s claims together, which is exactly the basis for Dowdy’s
present criticisms of the finalized verdict form. Not only did
Dowdy advocate for this in his pre-trial filings, but Dowdy’s
counsel also reiterated orally his desire that the verdict form
not separate the factual bases for Howard’s claims. (See Doc. 335
12:17-13:4 (Dowdy’s counsel explaining, “On the verdict sheet,
Your Honor, as we have stated before, we do object to having the
various factual contentions of the constitutional right violation
being separated.”)) As such, because Dowdy not only never objected
to the exclusion of special interrogatories about the fabrication
of Oliver’s statement, but he in fact advocated against the
inclusion of the special interrogatory for which he now advocates,
his motion to set aside the verdict and alternatively for a new
trial on Howard’s bad faith failure to investigate claim will be
denied. See Legacy Data Access, Inc. v. Cadrillion, LLC, 889 F.3d
158, 170-71 (4th Cir. 2018) (holding a party is foreclosed from
objecting to a jury instruction it proposed and the court adopted).
III. CONCLUSION
For the reasons stated,

IT IS THEREFORE ORDERED that Dowdy’s renewed motion for
judgment as a matter of law (Doc. 339) is DENIED.

/s/ Thomas D. Schroeder
United States District Judge

May 26, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254054. Public record. Not legal advice.