Yet the city of Durham refuses to pay him. Instead, the city argues that Dowdy acted in “bad faith” during his investigation. Therefore, the city claims that Dowdy did not act within the scope of his employment, and the city refuses to indemnify him from the jury award.
And it’s getting worse. In his trial, Howard also named other employees of the city for having contributed to his wrongful imprisonment. For various reasons, these employees were later removed from the trial. Durham is also demanding that Howard reimburse the city for these employees’ legal costs. 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 is evidence that police initially believed the assault was part of the crime. But when DNA testing ruled out Howard, their main suspect, Durham County prosecutor Mike Nifong continued to the trial anyway. (Nearly 90 percent of Durham County’s population lives 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 explored this possibility.
There was more: After an eyewitness retreated to the booth, Nifong had to treat her like a hostile witness when she declared in court, “you can not force me to come and tell something I did not see.” The witness accused Dowdy of forcing her testimony with threats of criminal charges. In the decades following Howard’s conviction, several eyewitnesses came forward to recall their testimony, claiming that Dowdy had also forced them.
There is an argument to be made that corrupt and abusive police officers ought to be personally liable when they violate anyone’s constitutional rights. But a police officer alone can not possibly make a man whole who lost decades of his life. The city that hired that officer should make up the difference. Otherwise we risk setting a bad precedent. The city of Cleveland, for example, has also tried to refuse to indemnify problem officers after losing lawsuits. (The city then spent money advising these officers on how to file for bankruptcy, further ensuring that victims never receive compensation.)
Howard’s $ 6 million equals about 1 percent of Durham’s annual budget. It’s a lot, but it pales in comparison to a third of a man’s life. And the notion that the city can not afford the verdict is hollow given that, according to the Raleigh News & Observer, Durham spent more than $ 4 million defending Howard’s convictions and Dowdy’s actions.
That alone is compelling evidence of Durham’s guilt for Dowdy’s behavior – as is Dowdy’s 36 years in the city’s employment. But the city’s attitude is also absurd, because Howard’s conviction cannot be blamed on Dowdy alone. Durham County prosecutors withheld important apologetic evidence from Howard’s lawyers, including testimony involving a local gang for the murders. Nifong in particular turned out to have made false statements to jurors and downplayed the possibility of sexual assault, knowing that the DNA tests did not involve Howard.
Moreover, Howard’s wrongful conviction was not the only case in which Durham’s prosecutors were found to have withheld apologetic evidence. Nifong wanted to become Durham County District Attorney before withdrawing in disgrace for his infamous behavior in the Duke lacrosse case. He was replaced by Tracey Cline, his mentee, his second chair in the Duke case, and his senior deputy commander. Cline was then also removed from office after state judges found she had also committed aggravated misconduct in several cases.
It is rare for prosecutors to suffer from even minimal consequences after being proven to have committed dishonesty. Durham County had two consecutive prosecutors behaving so badly that they were removed from office.
The city wants to pretend that this ugly era never took place. If the courts allow it, the only other option for Howard to get compensation would be what is known as one Monell assertion. It would require proving a culture of corruption and misconduct so prevalent in the city’s police department and DA’s office that constitutional violations were almost inevitable.
But the federal courts have set the bar for such claims impossibly high. For example. were they wrongfully convicted by the infamous New Orleans office DA Harry Connick – who sent several innocent people to the death row, repeatedly acquitted by the courts, and who flatly admitted that he never bothered to train his prosecutors in ethical obligations – was nonetheless less of the courts barred from claiming damages.
In a better world, a law would require Dowdy to pay Howard, but then require the city of Durham to pay what Dowdy cannot. In a better world, the law would ensure that Howard receives the full compensation that a jury clearly believed he deserved. But the law has failed. At this point, only a desire for justice and a sense of shame can make it happen. And Durham officials seem to be missing both.