HOWARD v. CITY OF DURHAM et al

Filing 292

MEMORANDUM OPINION AND ORDER Signed by CHIEF JUDGE THOMAS D. SCHROEDER on 11/2/2021. For the reasons stated herein, IT IS ORDERED that the pending motions are granted in part and denied in part as follows: 1. Defendan ts' motion to exclude the pardon of innocence (Doc. 210 ) is GRANTED IN PART AND DENIED IN PART. Plaintiff's motion to admit the pardon and summary of December 2016 Order (Doc. 186 ) is GRANTED IN PART AND DENIED IN PART. Reference to the entry of the December 2016 Order is permitted as noted herein, but there can be no reference during trial to any finding of "factual innocence" in that order. Reference to the pardon of innocence will be permitted, subject to the parties&# 039; submission of briefing by November 5, 2021 addressing how the pardon should be characterized, with any proposed limiting instruction. There shall be no reference to the pardons reliance on the December 2016 Orders finding of "factual innoce nce." 2. Defendants' motion to exclude Charles Drago's report and testimony (Doc. 147 ) is DENIED. 3. Defendants' motion to exclude Marilyn Miller's report and testimony (Doc. 149 ) is GRANTED IN PART as to her first opinio n, DENIED as to her second opinion, and GRANTED as to her third opinion, as noted herein. 4. Defendants' motion to exclude testimony from Dr. Moira Artigues (Doc. 151 ) is DENIED AS MOOT. Defendants' motion to exclude testimony from Dr. Ar tigues regarding Howard's alleged "wrongful conviction" or "innocence" (Doc. 153 ) is DENIED, subject to the limitations set out in this opinion. 5. Plaintiff's motion to exclude Suzanna Ryan's testimony (Doc. [155 ]) is GRANTED IN PART as to her opinion of several days as noted and otherwise DENIED. 6. Plaintiff's motion to exclude evidence of Howard's other acts is GRANTED IN PART and DENIED IN PART to the extent noted herein, subject to future ruli ngs by the court depending on the evidence offered at trial. 7. Plaintiff's motion to exclude purportedly inculpatory hearsay evidence (Doc. 173 ) is DENIED. 8. Plaintiff's motion to exclude opinion testimony from the Durham assistant dist rict attorneys (Doc. 176 ) is GRANTED IN PART and DENIED IN PART to the extent noted herein. 9. Plaintiff's motion to preclude Defendants' from introducing evidence of their good character is DENIED to the extent noted herein. 10. Plaintif f's motion to preclude Darryl Dowdy's opinion that Doris Washington engaged in prostitution (Doc. 184 ) is DENIED. 11. Plaintiff's motion to permit leading questions (Doc. 191 ) is DENIED without prejudice. 12. Defendants' motio n to preclude argument that Defendant Dowdy destroyed the Southerland tape or his notes (Doc. 167 ) is DENIED. 13. Defendants' motion to preclude any argument or testimony from Mary Winstead regarding DPD document retention policies (Doc. 170 ), to the extent not agreed to by the parties, is DENIED. 14. Defendants motion to exclude testimony or argument that the manner in which Roneka Jackson was killed by the New York Boys (Doc. 178 ) is GRANTED to the extent noted herein. 15. Defendant s' motion to exclude evidence or argument that Roneka Jackson was a confidential informant prior to 1994 (Doc. 181 ) is DENIED. 16. Plaintiff's motion to permit evidence of Jermeck Jones's invocation of the Fifth Amendment (Doc. 163 ) is GRANTED and Defendants' motion to exclude evidence or argument regarding Jermeck Jones's assertion of his Fifth Amendment privilege (Doc. 201 ) is DENIED to the extent noted herein. 17. Defendants' motion to preclude any testimony from Eric Lamont Shaw (Doc. 188 ) is DENIED. (Engle, Anita)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DARRYL HOWARD
Plaintiff,
v.
CITY OF DURHAM, et. al,
Defendants.

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1:17cv477

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
This case arises out of the conviction and incarceration of
Plaintiff Darryl Howard for the 1991 murders of Doris and Nishonda
Washington, which conviction was subsequently overturned in 2016
based on the discovery of exculpatory DNA evidence and the State
of North Carolina’s election to dismiss all criminal
against Howard.

charges

Howard alleges that Defendants Darrell Dowdy and

Milton Smith (“Defendants”) fabricated and suppressed evidence to
obtain his conviction.1

Before the court are multiple motions in

limine filed by the parties in anticipation of trial.

For the

reasons set forth below, the motions will be granted in part and
denied in part.
I.

BACKGROUND
The background of this case is extensively set out in this

Additional Defendants and claims were dismissed on dispositive motions
(Docs. 22, 119) and a stipulation of dismissal (Doc. 126).
1

court’s prior summary judgment order.

Howard v. City of Durham,

487 F. Supp. 3d 377 (M.D.N.C. 2020).

Relevant facts will be

discussed as pertinent to each pending motion.

In short, in the

early hours of November 27, 1991, Doris Washington and her 13year-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 of blunt force injuries; Nishonda

was strangulated.

Medical evidence suggested both had some form

of

activity.

prior

sexual

investigation

by

the

Durham

Defendant
Police

Dowdy

Department

conducted

the

(“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.
following
himself,

Howard was tried for the crimes in March 1995, and

testimony
he

imprisonment.

was

by

multiple

convicted

and

witnesses
sentenced

including
to

80

Howard

years

of

But in 2009, Howard took advantage of a new state

law and sought and obtained retesting of the semen/sperm taken
from

the

victims,

which

linked the DNA

contributed

to

Doris

Washington to a Jermeck Jones and eventually led to a December
2016 state court ruling granting Howard a new trial.

The State

thereafter dismissed all charges, and this lawsuit followed.

On

April 30, 2021, the governor issued Howard a “Pardon of Innocence.”

2

The case is set for trial in November 2021, and the parties
initially filed 29 motions in limine, including multiple cross
motions and totaling over 3,800 pages of materials.

The court

directed the parties to meet and confer to resolve or narrow their
evidentiary disputes because they had not previously attempted to
do so.

(Doc. 242.)

some motions.

The parties responded, noting resolution of

(Doc. 246.)

A hearing was held on July 23, 2021,

on the remaining motions, and the court ruled orally on several
motions and took others under advisement.

The court further

directed the parties to file supplemental material, which has now
been filed.2 (Docs. 250-257.)

This order memorializes the court’s

decisions at the July 23 hearing and provides further rulings on
the remaining motions.
II.

ANALYSIS
A.

Factual Innocence and Pardon of Innocence

The

parties

have

filed

multiple

evidence of Howard’s innocence.

motions

that

relate

to

Specifically, Defendants move to

exclude any reference to Howard’s “factual innocence,” including
those contained in the December 2016 Order of North Carolina
Superior Court Judge Orlando Hudson granting Howard a new trial
after a hearing on the DNA (Doc. 161), and the April 2021 Pardon
After the July 23 hearing, Defendants withdrew their motion (Doc. 175)
to exclude evidence of any alleged violation of DPD policies or standard
procedures. (Doc. 252.) To the extent Defendants may seek a limiting
instruction regarding this evidence (id.), the court will entertain that
request once made.
2

3

of Innocence issued to Howard by North Carolina Governor Roy Cooper
(Doc. 210).

Howard seeks to admit a summary of Judge Hudson’s

Order and the full Pardon of Innocence.
1.

(Doc. 186.)

December 2016 Order

While DNA test results at the time of Howard’s 1995 trial
excluded him as having contributed any bodily fluids suggesting
any sexual activity with Nishonda Washington,3 it was not until
2014 when DNA identified a particular individual, Jermeck Jones,
as having contact with Doris Washington.

This prompted Howard’s

motion for a new trial pursuant to N.C. Gen. Stat. § 15A-270 and,
following a hearing in state court, resulted in the December 2016
Order granting Howard a new trial.
single-spaced.

The Order is 25 pages long and

Among its many factual findings is a statement

that Howard is “factually innocent” of the murders of Doris and
Nishonda Washington.

(Doc. 87-3 at 25.)

Howard has advised the

court that he does not seek to admit the entire text of the December
2016 Order or its finding that Howard is “factually innocent,” and
that the parties intend to offer a proposed summary of the Order
that can be provided to the jury.

(Doc. 246 at 6.)

To this

extent, Defendants’ motion to exclude any reference to a purported
finding of factual innocence by Judge Hudson appears to be moot.
But because Judge Hudson’s statement of “factual innocence” is

3

No sperm was detected on Doris Washington at the time.

4

dicta and purports to resolve what is otherwise a contested issue
in this case, Howard himself or through his witnesses shall not
mention this finding in Judge Hudson’s December 2016 Order abse nt
a further ruling of this court.4
This result is consistent with North Carolina law. Section 15A-270,
pursuant to which Howard’s motion was filed, broadly grants a court that
receives DNA results favorable to a defendant the power to enter “any
order that serves the interests of justice,” including vacating the
judgment, discharging the defendant, resentencing the defendant, or
granting a new trial. N.C. Gen. Stat. § 15A-270(c). However, as for
judicial proceedings, it is the North Carolina Innocence Inquiry
Commission (“NCIIC”) that is charged with determining factual innocence.
See N.C. Gen. Stat. § 15A-1417 (listing types of relief available when
a court grants a motion for appropriate relief including “[f]or claims
of factual innocence, referral to the North Carolina Innocence Inquiry
Commission”).
The statutes creating the NCIIC are detailed and
comprehensive. See N.C. Gen. Stat. §15A-1460 et seq. Their purpose is
to establish “an extraordinary procedure to investigate and determine
credible claims of factual innocence.” Id. § 15A-1461. The NCIIC has
the power to, among other things, “conduct inquiries into claims of
factual innocence.” Id. § 15A-1466(2). If the NCIIC concludes there
is “sufficient evidence of factual innocence to merit judicial review,”
a three-judge panel is appointed to “rule as to whether the convicted
person has proved by clear and convincing evidence that the convicted
person is innocent of the charges.”
Id. § 15A-1469(a), (h).
As it
relates to the December 2016 Order, there was no referral of Howard’s
case to the NCIIC and no finding of factual innocence by that body. Nor
does the December 2016 Order make any finding based on the heightened
“clear and convincing” standard.
Rather, the Order finds that the
results of the DNA testing are “favorable” to Howard. (Doc. 87-3 at
25.)
It does appear that, consistent with the long-standing practice in
North Carolina state courts, the December 2016 Order was drafted by
counsel for the prevailing party, in this case Howard, based on the text
of the draft and other identifying information on the document, which
might explain the inclusion of the purported finding of “actual
innocence.” A court’s practice of having trial counsel prepare detailed
findings, and adopting them wholesale, risks the trial judge abandoning
his responsibility to independently determine a case and is expressly
condemned in the federal courts. See Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 571-72 (1985) (criticizing practice of courts
adopting verbatim adoption of findings of fact prepared by prevailing
parties, noting the Fourth Circuit’s suggestion that “close scrutiny of
the record” was warranted); Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d
719, 724-25 (4th Cir. 1961) (finding that the practice of having the
4

5

2.

Gubernatorial Pardon

The determination of the admissibility of Governor Cooper’s
Pardon of Innocence requires that this federal court wade into
issues of North Carolina constitutional law with little guidance
from North Carolina state courts.
for admitting the pardon.

Howard proffers two arguments

First, he argues that it is relevant

evidence needed to “complete the procedural story” of his criminal
case and counter the fact of his initial conviction.
3.)
that

(Doc. 189 at

Second, he contends that the pardon is evidence of innocence
can prove

“circumstantially

that

details in a falsified

statement came from police” and thus is relevant to whether Dowdy
fabricated evidence as well as to the issue of damages. 5
189 at 3-4.)

(Doc.

Defendants counter that the pardon runs afoul of the

prevailing party prepare a written decision for the judge “involves the
failure of the trial judge to perform his judicial function”). Here,
the trial judge did not even correct references in the document to
“undersigned counsel” in the Order.
(See Doc. 211-2 at 2 n.3.)
Accordingly, any reference to a finding of “factual innocence” is dicta
as it exceeds the scope of a motion for a new trial under the state’s
DNA statute and appears inconsistent with an order granting a new trial.
Any reference to the December 2016 Order’s textual findings also
appears to be unwarranted under Federal Rule of Evidence 403, as the
judge’s decision makes findings on the very evidence that is to be
presented in the present case. See Nipper v. Snipes, 7 F.3d 415, 418
(4th Cir. 1993) (finding abuse of discretion where trial court admitted
prior judicial decision with findings of fact as evidence against
defendant).
Howard argues that there are “only two possible explanations for how
witness Angela Southerland’s statement included nonpublic details about
the crime”: either she did in fact witness the crime, or Dowdy
“improperly fed that information to her.” (Doc. 189 at 5.) Of course,
this ignores a third option: that the witness learned facts from someone
involved in the crimes and simply lied to investigators.
5

6

North Carolina Constitution, is hearsay, and should be excluded
pursuant to Rule 403 of the Federal Rules of Evidence as its
probative value is substantially outweighed by the dange r of unfair
prejudice and misleading the jury.

(Doc. 211.)

Turning first to Defendants’ assertion that the pardon “does
not comply with the North Carolina Constitution” (Doc. 211 at 3),
such an argument is unpersuasive.

The North Carolina Constitution

provides in relevant part: “The Governor may grant reprieves,
commutations, and pardons, after conviction.”

N.C. Const. art.

III, § 5(6). Defendants rely on the “after conviction” requirement
to contend that, because Howard’s conviction was vacated by Jud ge
Hudson in 2016, there was no such “conviction” for which Howard
could be pardoned in 2021.

Thus, Defendants argue, Howard’s pardon

in 2021 was not “after conviction” as required by the constitution.
(Doc. 211 at 3-8.)

Howard argues that Defendants’ claim is

contrary to existing state judicial interpretation and practice.
As a federal court construing North Carolina law, this court
applies the jurisprudence of North Carolina’s highest court, the
Supreme Court of North Carolina.

See Private Mortg. Inv. Servs.,

Inc. v. Hotel & Club Assocs., Inc., 296 F.3d 308, 312 (4th Cir.
2002); State ex rel. Martin v. Preston, 325 N.C. 438, 449 (1989)
(noting

that

“issues

concerning

the

proper

construction

and

application of North Carolina laws and the Constitution of North
Carolina can only be answered with finality by” the North Carolina
7

Supreme Court).

When that court has not spoken directly on an

issue, this court must “predict how that court would rule if
presented with the issue.”

Id.

The decisions of the North

Carolina Court of Appeals are the “next best indicia” of what North
Carolina’s law is, though its decisions “may be disregarded if the
federal court is convinced by other persuasive data that the
highest court of the state would decide otherwise.”

Id. (quoting

Liberty Mut. Ins. Co. v. Triangle Indus., Inc., 957 F.2d 1153,
1156 (4th Cir. 1992)).

In predicting how the highest court of a

state would address an issue, this court “should not create or
expand

a

[s]tate’s

public

policy.”

Time

Warner

Ent.-

Advance/Newhouse P'ship v. Carteret-Craven Elec. Membership Corp.,
506 F.3d

304, 314

(4th

Cir.

2007)

(alteration

and quotation

omitted).
There is little case law interpreting the governor’s pardon
power. Both parties point to the nearly 150-year-old case of State
v. Alexander, 76 N.C. 231 (1877), to support their claims.

There,

the defendant had been tried, found guilty by a jury, and sentenced
by the state trial court to five years’ imprisonment.
32.

Id. at 231-

The defendant then appealed to the North Carolina Supreme

Court, which at the time resulted in his conviction and sentence
being vacated during the pendency of the appeal by operation of
law.

Id.

governor

The question became, as is the case here, whether the
could

properly

use

the
8

pardon

power

to

pardon

an

individual whose conviction had been vacated — i.e., whether the
“after conviction” clause in the state constitution prohibited
pardons where convictions were vacated.
The Alexander court found the governor’s use of his pardon
power

to

be

“after

conviction,”

even

though

the

defendant’s

conviction had been vacated, because the defendant had been tried
and convicted by a jury prior to the issuance of the pardon.
at 233.

Id.

The court observed that “nothing can be a conviction but

the verdict of the jury.”
conviction” clause was

Id.

It then reasoned that the “after

included in the state

constitution

to

prevent the governor from issuing preemptory pardons before a
defendant was publicly tried.

The practice at the time the state

constitution was written, the court noted, was to “exercise[] the
power of pardon at any time,” meaning “crimes were smothered.
facts were not brought to light.

The

The person charged was not

brought before the public and required to answer the charge.”

Id.

at 232.
The “smothering of crimes” is of no concern in the present
case.

In 1995, Howard was subjected to a public trial, found

guilty by a jury, and sentenced to 80 years of imprisonment.
89-6 at 765:18-766:10; 777:8-778:23.)
subsequently

vacated

his

sentence

(Doc.

Although the superior court
and

judgments,

Howard

was

brought before the public and convicted by a jury who heard the
allegations against him.

As was the case in Alexander, Howard was
9

thus pardoned “after conviction” in that he was convicted in 1995
after a full trial and a guilty verdict returned by the jury, even
if that conviction was subsequently vacated in 2016.
Defendants point to the dissent in Alexander to argue that
“as a matter of both law and practice, there was no conviction
from which [Howard] could seek a pardon.”
his conviction

was vacated,

they

(Doc. 211 at 4.)

After

note, Howard was thereafter

presumed innocent as if he was never tried in the first place.
Defendants’ argument follows that vacating a conviction erases the
conviction as a practical and legal matter such that it never
existed.

Chief

Justice

Pearson,

dissenting

in

Alexander,

expressed a similar concern that once an individual “moves to set
aside the verdict and have a new trial . . . his guilt is not
established according to law.”
(Pearson, C.J., dissenting.)

See Alexander, 76 N.C. at 238

Defendants reiterate this argument,

noting that by vacating Howard’s conviction, “the North Carolina
Judiciary has not established Plaintiff’s guilt or exonerated him
of the charge.”

(Doc. 211 at 7-8.)

It is, they say, as if Howard

has never been convicted, and a subsequent pardon would fail to
comply with the state constitution.
Principles of federalism counsel federal courts to proceed
with caution when being asked to interpret a state constitution.
See Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 78 (2000)
(recognizing that it is a “fundamental” principle of federalism
10

“that state courts be left free and unfettered by [federal courts]
in interpreting their state constitutions.” (quoting Minnesota v.
Nat’l Tea Co., 309 U.S. 551, 557 (1940)); Carpenter v. Wichita
Falls Indep. Sch. Dist., 44 F.3d 362, 367 (5th Cir. 1995) (noting
that a federal court deciding state constitutional law claims
“disregards principles of federalism; it ignores the superiority
of state-court forums for state-law claims and denigrates the
state’s authority to fashion independent constitutional law.”)
overruled on other grounds by Rivet v. Regions Bank of Louisiana,
522 U.S. 470 (1998).

This is especially true where the source of

support is a single dissent from 1877 and the Defendants’ position
contravenes the seemingly routine practice over the years of North
Carolina

governors

issuing

pardons

convictions had been overturned.
examples).)

to

individuals

whose

(See Doc. 244 at 5 (collecting

For these reasons, the court declines to find that

Howard’s pardon runs afoul of the North Carolina Constitution.
Turning to the questions of relevance and admissibility,
Howard’s remaining legal claims are for fabrication of evidence
and failure to investigate under § 1983, a Brady-based claim for
suppression of evidence, and a claim for intentional infliction of
emotional distress under state law.

Howard correctly admits that

evidence of his innocence, including the pardon, “is not a required
element

of

Defendants.

the

claims”

he

(Doc. 189 at 3.)

maintains

against

the

remaining

This is because the focus of the
11

case is on the conduct of the Defendants leading up to Howard’s
trial in 1995, not on Howard’s ultimate guilt or innocence or what
new facts were later learned.
pardon

“provides

critical

Nevertheless, he argues that the

factual

context

for

evaluating

the

evidence of the alleged misconduct by the Defendants” and is
“undoubtedly relevant to damages.”

(Id. at 4-6.)

In support,

Howard relies principally on two cases that involve a plaintiff
seeking to admit a pardon.

See Newsome v. McCabe, 2002 WL 548725

(N.D. Ill. Apr. 4, 2002), aff’d, 319 F.3d 301 (7th Cir. 2003);
Tarlton v. Sealey, 2021 WL 1148951 (E.D.N.C. Mar. 25, 2021).
Both cases have facts similar to those in this case — the
plaintiff was convicted and imprisoned, the conviction was later
vacated by the state court, the state declined to re-prosecute,
and the state’s governor issued a pardon.

Both courts admitted

the pardon without offering extensive explanation.

The Tarlton

court stated that “pardons of innocence are as relevant to this
action

as

the

criminal

judgments

of

conviction

under

which

[plaintiffs] were sentenced” but provided no further analysis.
See Tarlton, 2021 WL 1148951, at *1.

The Newsome court offered

slightly more, noting:
The issue in this case was not, as defendants point out,
whether Newsome was guilty or innocent of the crime.
But that is what it would have become if the fact of
Newsome’s innocence . . . had been kept from the jury.
Excluding
that evidence would have
been highly
prejudicial to Newsome. It would have invited the jurors
to draw the impermissible inference that he was actually
12

guilty,
and,
misconduct.”

thus,

absolve

defendants

of

any

Newsome, 2002 WL 548725, at *6. Any potential prejudice, the court
concluded, could be cured by jury instructions.

Id.

Here, while Defendants object to the pardon as inadmissible
hearsay (Doc. 211 at 16-22), as Howard argues (Doc. 244 at 15-18),
the pardon qualifies as a public record under Federal Rule of
Evidence 803(8).

The public records exception to the hearsay rule

allows for the admission in a civil case of “factual findings from
legally authorized investigation[s]” as long as the opponent “does
not show that the source of information or other circumstances
indicate a lack of trustworthiness.”

Fed. R. Evid. 803(8) (A)

(iii). The pardon is a pronouncement of a public agency concerning
factual

findings

of

a

legally-authorized

investigation,

and

Defendants have not met their burden of showing that the pardon
itself is untrustworthy.

Cf. Sanford v. Russell, No. 17-13062,

2021 WL 1208888, at *3 (E.D. Mich. Mar. 31, 2021) (finding state’s
admission of innocence in state proceeding under state’s Wrongful
Imprisonment

Compensation

Act

admissible

under

Rule

803(8)).

Indeed, the district attorney for Durham County did not oppose the
pardon request.
a

wrongful

(Doc. 189-4 at 2.)

conviction

lawsuit

the

original criminal case is relevant.
than what Newsome suggests.

And Howard is correct that in
procedural

history

of

the

But the issue seems closer

The jury will know of Howard’s

13

original conviction, and it will know that the conviction was
overturned based on exculpatory DNA evidence that identified the
actual contributor of sperm to one of the victims.

It will also

know that the State not only declined to re-prosecute Howard but
instead dismissed all charges. Defendants contend that these facts
“complete the story” of Howard’s original criminal case and a
proper jury instruction can explain that he enjoys the presumption
of innocence like any other person so as to put him on an equal
footing with everyone else.

On the other hand, a presumption of

innocence is not the same as a finding of innocence.

This is

especially true where the decision not to re-prosecute is based,
even in part, on the passage of time and difficulty in marshalling
evidence.

(Doc. 189-1 at 2-4 (Dismissal Orders noting: “At this

time there is insufficient evidence to prove the case beyond a
reasonable doubt.”).)
The

probative

value

of

evidence

can

be

more

or

less

significant depending on whether a fact is genuinely contested.
See Old Chief v. United States, 519 U.S. 172, 184-85 (1997).

At

the hearing on these motions when the court pressed Defendants on
whether they intended to argue at trial that Howard was in fact
guilty of the crimes for which he has been pardoned , Defendants
answered “I think at this point it would be - - yes, that we
would.”

(Doc. 262 at 6:15-16.)

Defendants also represented that

at least one witness “and perhaps another witness or two” takes
14

the position that Howard may still be guilty of these crimes
despite

his

pardon.

(Id.

at 6:8-12.)

By all

indications,

Defendants will continue to argue Howard’s guilt, particularly as
Howard intends to argue his innocence.

Because Defendants will

continue to argue Howard’s guilt, the probative value of competing
evidence

suggesting

Sanford,

No.

Howard’s

17-13062,

2021

innocence
WL

1208888,

is

heightened.

at

*2

(holding

See
the

probative value of competing evidence suggesting innocence was not
substantially outweighed by the danger of unfair prejudice because
there was still “a live dispute” about the plaintiff’s innocence);
Old Chief, 519 U.S. at 184.
As Howard urges, his guilt or innocence is relevant to whether
any trial witness’s statement was fabricated and by whom (as a
jury

might

conclude

that

a

witness

might

not

have

lied

to

investigators if Howard was in fact innocent), and to damages (as
one who is wrongfully convicted may suffer the pain of knowing his
incarceration is factually unwarranted).

See Parish v. City of

Elkhart, Ind., 702 F.3d 997, 1003 (7th Cir. 2012) (overturning
damages award in a wrongful conviction case because the district
court “improperly limited the introduction of evidence relating to
[plaintiff’s] innocence, and that evidence was critical to the
damages issue.”); Sanford, No. 17-13062, 2021 WL 1208888, at *2
(in § 1983 case, finding evidence of plaintiff’s settlement with
state under Wrongful Imprisonment Compensation Act “relevant to
15

both liability and damages in any wrongful prosecution case where
the factual premise of actual innocence remains in dispute”);
Kluppelberg v. Burge, 84 F. Supp. 3d 741, 746 (N.D. Ill. 2015)
(finding

certificate

of

innocence

admissible

as

relevant

to

neutralizing unfair prejudice to plaintiff and as to damages) .
The

persuasive

significant.

value

of

the

pardon

is

undoubtedly

The pardon of innocence represents the conclusion of

the governor of North Carolina, the chief executive of the state,
that Howard is in fact innocent.6

A jury will presumably be moved

by this evidence, and likely to a significant degree.

As a result,

there is a legitimate risk of the jury supplanting its decision
with that of the governor.
Having carefully considered these arguments, the court finds
that evidence of innocence is relevant to aspects of Plaintiff’s
proof burden and that evidence of the fact of the pardon bears
The court need not resolve the full scope of the governor’s pardon
power and that scope vis-à-vis the NCIIC or any regulations the North
Carolina General Assembly might enact. The pardon power is expressly
set out in the North Carolina Constitution, and it is broad. See State
v. Clifton, 481 S.E.2d 393, 399 (N.C. App. 1997) (“The North Carolina
Constitution provides the governor with the exclusive prerogative to
issue pardons.”). However, the North Carolina Constitution reads: “The
Governor may grant reprieves, commutations, and pardons, after
conviction, for all offenses (except in cases of impeachment), upon such
conditions as he may think proper, subject to regulations prescribed by
law relative to the manner of applying for pardons.” N.C. Const. art.
III, § 5(6) (emphasis added). There is scant case law interpreting the
“subject to” clause.
A recent North Carolina Court of Appeals case
points to two statutes that “arguably fall” within that clause, including
N.C. Gen. Stat. § 147-21, although it did not expressly decide the issue.
See News & Observer Pub. Co. v. Easley, 641 S.E.2d 698, 704 (N.C. App.
2007).
6

16

some

relevance

to the overall procedural history of Howard’s

criminal justice experience.

The probative effect of the pardon’s

conclusion that Howard is “innocent” of the crimes charged must be
weighed

against

outweighed

by

the
the

possibility
danger

of

that

unfair

it

is

substantially

prejudice,

confusion,

misleading the jury, and unwarranted side litigation over the
clemency office’s process itself for Howard’s pardon.
Civ. P. 403.

Fed. R.

Here, Defendants cite to cases precluding findings

by a governmental agency or court.

See, e.g., Martin v. Cavalier

Hotel Corp., 48 F.3d 1343, 1357-58 (4th Cir. 1995) (affirming the
district court’s decision that evidence from a report prepared by
the Virginia Employment Commission was inadmissible because of
“the prejudicial effect such an official report might have on the
jury.”);

Carter

v.

Burch,

34

F.3d

257,

265

(4th

Cir.

1994)

(affirming the exclusion of a judicial opinion because it “decided
the precise issue before the jury” and its probative value was
substantially

outweighed

by

its

prejudicial

effect,

noting

“[j]udicial findings of fact ‘present a rare case where, by virtue
of their having been made by a judge, they would likely be given
undue weight by the jury.’” (quoting Nipper v. Snipes, 7 F.3d 415,
418 (4th Cir. 1993)).

These cases are not on point, however,

because they involved evidence to resolve the precise question
before the jury, whereas Howard’s guilt or innocence is not an
element of the claims in the present case.
17

The court is therefore left with two options.

On the one

hand, it can preclude evidence of the pardon, as Defendants urge,
in which case the jury may conclude, even with a proper limiting
instruction, that Howard is in fact guilty of murder and arson -a conclusion at odds with the governor’s pardon that declares him
legally innocent.

See, e.g., State v. Keith, 63 N.C. 140, 143

(N.C. 1869) (“The effects of a pardon are well settled in law: as
far as the State is concerned, they destroy and entirely efface
the previous offence; it is as if it had never been committed. .
. . [I]t is ‘a remission of guilt,’ not only of the punishment of
guilt.”) (citation omitted); see Jenkins v. Collard, 145 U.S. 546,
556 (1892) (“As repeatedly affirmed by this court, pardon and
amnesty in legal contemplation not merely release offenders from
the punishment prescribed for their offenses, but obliterate the
offenses themselves.”).

Even mention of the pardon alone, without

reference in some way to Howard’s innocence, might lead jurors to
conclude that Howard was guilty but granted a reprieve of sentence.
See State v. Clifton, 481 S.E.2d 393, 400 (N.C. Ct. App. 1997)
(stating: “In North Carolina a governor may issue two types of
pardons: A pardon of innocence, a full pardon; and a pardon of
forgiveness, a conditional pardon” and adopting the view of other
courts that “the prior offense was blotted out and its consequences
removed by the full pardon” i.e. by a pardon of innocence.) ; Byrum
v. Turner, 171 N.C. 86 (1916) (stating that “[w]hen a full and
18

absolute pardon is granted it exempts the recipient from the
punishment

which

the

law

inflicts”).

Exclusion

thus

risks

substantial prejudice to Howard and the potential of having the
jury be misled.
On the other hand, the court can admit evidence of the pardon.
While doing so would risk prejudicing Defendants, it would prevent
the jury

from assuming,

wrongly,

in

the

face

of Defendants’

arguments

of continuing guilt that the dismissal of Howard’s

charges and decision not to retry him was based on some kind of
technicality, passage of time, or witness unavailability such that
he remains potentially responsible for the murders and arson.

It

would also permit the jury to focus on the central question of
whether at the

time

of

Defendants’ initial

investigation and

Howard’s trial the Defendants falsified evidence, as alleged.
While there is a risk that the weight of the governor’s pardon
could be substantial, admission with a proper limiting instruction
addressing that risk is preferable to excluding the pardon where,
no matter what instruction is given, Defendants will invite the
jury to conclude that Howard remains guilty of the offenses in an
effort to absolve themselves of liability.

Newsome, 2002 WL

548725, at *6 (concluding that precluding evidence of pardon would
have invited jurors “to draw the impermissible inference that [the
plaintiff] was actually guilty, and, thus, absolve defendants of
any misconduct,” and requiring limiting instruction).
19

While evidence of the pardon of innocence should be admitted,
the court notes that the pardon expressly references the finding
of factual innocence in the December 2016 Order.7
already

held

this

to

be

inadmissible,

and

the

The court has
parties

have

represented that they have agreed not to put it before the jury.
To allow it via the pardon would allow through the back door that
which is not permitted through the front.
Accordingly, as to all motions related to the pardon (Docs.
161, 186, and 210) the court will permit reference to the pardon

By law, pardon applications must contain grounds for relief, presumably
to ensure the governor has before him or her actual evidence of innocence
during the pardon process. See N.C. Gen. Stat. § 147-21 (noting every
pardon application “shall contain the grounds and reasons upon which the
executive pardon is asked”). Here, Howard’s pardon application contained
an application from his post-conviction attorneys, a copy of his original
indictment and judgment, and a copy of Judge Hudson’s 2016 Order. (Doc.
211-2.)
The application letter that Howard’s counsel sent to the
governor urged:
In August 2016, exonerating post-conviction DNA testing and
other newly discovered exculpatory evidence definitively
proved his [Howard’s] innocence, and the Senior Resident
Superior Court Judge of Durham County overturned Mr. Howard’s
conviction and ordered his immediate release. In doing so,
the Court made an explicit and unequivocal finding that Mr.
Howard was factually innocent.
(Doc. 211-2 at 3 (emphasis added).)
While it is unclear what other
evidence, if any, Governor Cooper may have relied upon in issuing
Howard’s pardon, as Howard’s counsel represented at the hearing on this
motion that the nature of the governor’s investigation is “secret,” what
is clear is that the pardon expressly relies on the dicta in the December
2016 Order:
WHEREAS, in an order entered on December 1, 2016 Durham
County Superior Court Judge Orlando F. Hudson, Jr., concluded
as a matter of law that the existence of the newly discovered
DNA evidence favorable to Howard showed that he is factually
innocent and ordered that Howard’s convictions be vacated,
granted Howard’s motion for a new trial, and released him
from prison; . . .
(Doc. 189-2 at 2.) For the reasons already noted, this reference to the
December 2016 Order’s findings shall be precluded.
7

20

of

innocence

subject

to

the

parties’

filing

of

supplemental

briefing by November 5, 2021, not to exceed 5 pages, as to how the
pardon is to be characterized.

Reference to the December 2016

Order’s finding of “factual innocence,” whether in the pardon or
otherwise, will be precluded.

The parties’ motions are granted in

part and denied in part, accordingly.
B.

Charles Drago

Defendants

move

to

exclude

the

report

and

Howard’s police practices expert, Charles Drago.

testimony

of

(Doc. 147.)

Defendants argue that Howard’s counsel “wrote significant material
portions of Drago’s report” and therefore Drago did not provide
substantial participation in preparing his report as required by
Rule 26(a) of the Federal Rules of Civil Procedure.
¶¶ 3, 6.)

(Id. at 2-3,

Howard argues that the report-writing process meets the

requirements of Rule 26(a) because, while counsel typed the report,
Drago substantially participated in the drafting process and the
report reflects Drago’s expert opinions because Drago “reviewed,
edited, and ultimately signed” the final report.

(Doc. 208 at 1,

10.)
Federal Rule of Civil Procedure 26(a)(2)(B) provides that the
disclosure of expert witnesses “must be accompanied by a written
report -- prepared and signed by the witness.”

The advisory

committee notes clarify that this Rule “does not prec lude counsel
from providing assistance to experts in preparing the reports, and
21

indeed, with experts such as automobile mechanics, this assistance
may be needed.

Nevertheless, the report, which is intended to set

forth the substance of the direct examination, should be written
in a manner that reflects the testimony to be given by the witness
and it must be signed by the witness.” Fed. R. Civ. P. 26(a)(2)(B)
advisory committee note to the 1993 amendments.
Courts have interpreted Rule 26 to bar counsel from “ghost
writing” an expert’s report.

“Ghost writing a testifying expert’s

report is the preparation of the substance writing of the report
by someone other than the expert purporting to have written it.”
Trigon Ins. Co. v. United States, 204 F.R.D. 277, 291 (E.D. Va.
2001).

The key question is “whether counsel’s participation so

exceeds the bounds of legitimate assistance as to negate the
possibility that the expert actually prepared his own report.”
Numatics, Inc. v. Balluff, Inc., 66 F. Supp. 3d 934, 942 (E.D.
Mich. 2014) (citation

and internal quotation marks omitted)

(excluding report where expert spent less than 30 hours on the
report, the majority of which was travel time; parts of the report
were copied verbatim from other filings; the expert did not appear
to understand legal terms; and testimony indicated the attorney
drafted

the

report

and

the

expert

made

only

“fairly

minor”

changes); cf. United States v. Kalymon, 541 F.3d 624, 637 (6th
Cir.

2008)

(finding

“nothing

inherently

nefarious”

about

and

opting not to exclude reports where “experts explain that they
22

told

Government

counsel

their

substantive

opinions,

and

then

counsel reduced those opinions to writing for the experts’ review
and signature.”).
Here, as Defendants have pointed out, the writing style, tone,
and language of Drago’s report in this case parallels that of a
different expert’s report in another similar wrongful conviction
case in which Howard’s counsel were involved, while it is notably
dissimilar

from

reports

Drago

involving different counsel.

has

written

in

(Doc. 148 at 13-17.)

similar

cases

In the main,

it reads more like a brief, with hyperbolic phrases, than an expert
report.

Here are a few examples:

The case record includes a number of extraordinary
admissions from Dowdy demonstrating that Dowdy engaged
in egregious deviations from minimally acceptable police
practice. (Doc. 208-2 at 5.)
Indeed, Dowdy’s statement that there was no evidence
indicating that the perpetrator had raped the victims is
an astounding statement for an experienced sex crimes
investigator to make given the overwhelming amount of
evidence in this case. (Id. at 11)
Dowdy engaged in blatant deviations from minimally
acceptable police practice by failing to document many
of the investigative steps he claims he took in this
case. (Id. at 6.)
There is ample evidence in the record indicating that
Dowdy systematically failed to document exculpatory and
impeachment evidence. (Id. at 25)
The complete lack of documentation regarding the
investigation into Nishonda’s whereabouts and the
alleged boyfriend would be a serious “red flag” for any
minimally competent police supervisor suggesting that
Dowdy may have misrepresented his investigation . . . To
23

the extent Dowdy did misrepresent his investigation, he
engaged
in
an egregious
violation
of minimally
acceptable police practice. (Id. at 13)
{T]there are massive contradictions in the
statements implicating Howard. (Id. at 18)

witness

[T]here is also evidence indicating that Dowdy may have
engaged
in
direct
suggestion
during
the
photo
identification procedure . . . which not only would have
tainted the reliability of any photo identifications
made during that procedure but also constituted
egregious misconduct. (Id. at 18)
Dowdy’s admitted conduct is an egregious departure from
minimally acceptable police practice and DPD [Durham
Police Department] policy. First . . . misrepresenting
the circumstances of a witness interview at trial and to
the prosecutor — as the undisputed evidence shows Dowdy
did here — is egregious police misconduct.
Dowdy’s
failure to disclose that over 30 minutes of his interview
with Southerland took place off tape is inexcusable and,
as discussed further below, constitutes not only a
potential Brady violation for failure to document and
disclose impeachment evidence, but also raises concerns
regarding
fabrication
of
evidence,
if
the
misrepresentations were intentional. (Id. at 20)
More troubling, billing records provided by Howard’s counsel
reflect that up to the date of his report Drago devoted a total of
37.25 hours to the case.

(Doc. 148-8 at 2.)

And yet his report

is over 30 single-spaced pages, and he claims to have reviewed
some 6,000 pages of documents in advance of preparing it.
148-3 at 6-38.)

(Doc.

All these factors strongly suggest that Howard’s

counsel wrote significant portions of the report.
When asked who prepared his report, Drago testified at his
deposition, “I prepared the report.”

(Doc. 208-4 at 66.)

When

asked more specifically who actually prepared it, however, he
24

stated: “what we did was -- what I did was I gave my opinions to
[Howard’s counsel].
things down.
it.

We talked about the opinions.

I wrote some

She wrote some things down that I had said.

I edited

I reviewed it and edited it, finalized it and so forth, sent

it back, and it was finalized.”

(Id. at 66-67.)

Drago confirmed

that he spoke with Howard’s counsel and “shared [his] opinions
about what [he] had reviewed.”

(Id. at 67.)

When asked whether

counsel then prepared the written report and sent to him, Drago
responded: “So she put down -- she listed some of the things that
I had said.

I added some things.

I did edits on some of the

things that [counsel] sent me, and comprised that, and so forth,
and made sure that that was what we had discussed, and finalized
it and sent it back, and that was the way it was produced.”

(Id.)

Beyond this, however, the court’s ability to understand whether
Drago actually substantially prepared the report is limited, as
Howard’s counsel instructed Drago not to answer further questions
designed to learn more about Drago’s actual role, such as who
actually typed the report.

(See, e.g., id. at 67-68.)

One who instructs a witness not to answer in this district
should tread lightly.

The Local Rules of this court, which all

admitted lawyers attest they have read and will follow, limit the
bases on which counsel can direct a witness not
question posed during a

deposition

to

either

limitation on evidence directed by the court.
25

to answer a

privilege

or a

See Local Civil

Rules,

L.R.

30.1,

https://www.ncmd.uscourts.gov/sites/ncmd/files/2021_June_21_CIVR
ulesEffective.pdf (last accessed November 1, 2021).

Otherwise,

the proper procedure is to lodge an objection and, if the inquiring
counsel wishes to proceed, adjourn the deposition as to those
topics and seek a protective order. See Redwood v. Dobson, 476
F.3d 462, 467-68 (7th Cir. 2007) (noting “counsel for the witness
may halt the deposition and apply for a protective order, see Rule
30(d)(4), but must not instruct the witness to remain silent.”);
Johnson v. Statewide Investigative Services, Inc., 2021 WL 825653
at *3 (N.D. Ill. 2021) (instructing that if an attorney wanted to
object to questioning during a deposition on grounds other than
privilege, he “could have ‘halt[ed] the deposition and appl[ied]
for a protective order.’” (quoting Redwood, 476 F.3d at 467 (7th
Cir. 2007)).
Howard has not identified any privilege applicable to Drago’s
expert report.

Rather, by virtue of a 2010 amendment, Rule 26

offers protection as to certain aspects of an expert’s report,
such

as

actual

drafts

of

the

expert’s

report

communications between the expert and counsel.

and

certain

See Fed. R. Civ.

P. 26(b)(4)(B) and (C) and advisory committee note.

But the rule

does not exclude all inquiry into the substance of preparing the
report.

For example, the rule expressly allows a party to inquire

as to “facts or data that the party's attorney provided and that
26

the expert considered in forming the opinions to be expressed” as
well as “assumptions that the party's attorney provided and that
the expert relied on in forming the opinions to be expressed.”
Fed. R. Civ. P. 26(b)(4)(C)(ii) & (iii).

And just as the attorney-

client privilege does not prevent inquiry as to matters outside
the contents of a communication (such as the date, place, and
length of a communication), see Spilker v. Medtronic, Inc., No.
4:13–CV–76–H, 2015 WL 1643258, at *6 (E.D.N.C. Apr. 13, 2015)
(permitting disclosure of date, author, recipient, etc.); Vaughan
v. Celanese Americas Corp., No. 3:06CV104–W, 2006 WL 3592538, at
*3 (W.D.N.C. Dec. 11, 2006) (same), Howard has not identified any
basis for precluding inquiry into similar topics relating to the
preparation of an expert report.

Cf. Powerweb Energy, Inc. v.

Hubbell Lighting, Inc., No. 3:12-cv-220, 2014 WL 655206, at *4 (D.
Conn. Feb. 20,

2014) (rejecting plaintiff's argument

that

an

expert's emails constituted draft reports); In re Application of
the Republic of Ecuador, 280 F.R.D. 506, 513 (N.D. Cal. 2012)
(finding

that

notes,

task

lists,

outlines,

memoranda,

presentations and letters drafted by a testifying expert and his
assistants did not constitute draft reports).
Rule 26(b)(4)’s protection, akin to that of attorney work
product protection, is similarly not boundless.

An attorney acts

within her proper role when she assists the expert in preparing
the report by providing editorial guidance.
27

But counsel cannot

provide or change the substance of an opinion with impunity.
“[W]hen the record reveals the lawyer may have commandeered the
expert's function or used the expert as a conduit for his or her
own theories,” the rule’s protection cannot be used as a “shield
against inquiry into the extent to which the lawyer’s involvement
might have affected, altered, or ‘corrected’ the expert’s analysis
and conclusions.”

Gerke v. Travelers Cas. Ins. Co. of Am., 289

F.R.D. 316, 328 (D. Or. 2013).

And while each case turns on its

own facts, an expert’s statement that the report, as written, is
now his because he adopted and signed it does not prevent further
probing.

Id.

Here, Defendants sought information as to who prepared the
initial draft of the report and who prepared follow-up drafts, and
counsel made clear he was not seeking information as to the
contents of the drafts.

(Doc. 208-4 at 67:25-68:6) (“I'm not

asking about the content of the drafts.

I'm asking about who is

responsible for the preparation of the draft and how it goes from
a draft to this report that's been presented in this case.

I'm

just trying to find out who is preparing the report.”).)

The

problem here is that while Howard’s counsel seemingly violated
this court’s local rules in instructing Drago

not to answer,

Defendants did not make a proffer or specifically indicate the
range of questions they intended to ask. Instead, they represented
they had “further questions . . .
28

about the process,” to which

Howard’s counsel stated she would “continue objecting on that
basis.”

(Doc. 148-1 at 192:15-193:21.)

Thereafter, Defendants

moved on to other questions but did not move to compel discovery,
and the discovery period is now closed.
Howard’s counsel argues that they have met the disclosure
requirements in Rule 26, which serve primarily to give notice to
opposing counsel of the expert’s opinions so counsel can adequately
prepare for trial and avoid unfair surprise.
Maybe.

(Doc. 208 at 9.)

But that is beside the point and begs the question whether

the opinions are truly those of the expert, as required by Rule
26(a)(2)(B).
No matter how one views it, the record raises the disquieting
specter of excessive lawyer involvement and only serves to fuel
public skepticism of the proper role of lawyering.
Drago’s report are troubling.
Howard’s

counsel

wrote

Aspects of

There is a strong inference that

material

portions

of

the

report,

particularly given its tone and style, as it reads more like a
lawyer’s brief.

But the witness claims he provided opinions to

counsel, who organized and articulated them in the final report.
In the absence of any additional indication, the court cannot say
that the report does not contain Drago’s opinions as he expressed
them to counsel.

Cf. McClellan v. I-Flow Corp., 710 F. Supp. 2d

1092, 1127 (D. Or. 2010) (finding that counsel’s involvement in
drafting the expert report “approache[d] the outer limits
29

of

acceptable assistance” but acknowledging that such involvement
“may

undermine

its

weight

and

credibility”);

In

re

Asbestos

Products Liability Litigation (No. VI), 714 F. Supp. 2d 535, 542
(E.D. Pa. 2010) (declining to strike testimony of the expert
because although counsel drafted the supplemental report,
expert had previously provided opinions to counsel).

the

However, any

expert witness who is seemingly content with such an arrangement,
as evidenced by the relatively little time spent in preparation in
view of the work claimed to have been performed, will suffer the
consequences of cross examination.

And rightly so.

Sunbeam

Products, Inc. v. Homedics, Inc., 670 F. Supp. 2d 873, 883-84 (W.D.
Wis. 2009) (finding that, while expert’s report was not wholly
ghost-written and expert testified he had reached all his opinions
stated in the report, the process raised credibility issues for
the jury).

Had Defendants properly sought court intervention

during the discovery period, the court may have reached a different
result.

But justice is invoked, not dispensed.

And Defendants’

failure to seek a remedy during the discovery period in order to
develop a better record requires that they now hurdle the high bar
of exclusion under Rule 26(a)(2)(B), which they have not done.
Let

there

be

no

doubt,

however:

any

lawyer

who

seeks

to

substantially prepare expert reports in the fashion noted here
risks not only exclusion of the expert’s testimony, but sanctions
by the court.
30

For these reasons, the motion to preclude Drago’s report and
testimony

will

be

denied.

The

court

will,

however,

permit

Defendants substantial leeway to cross examine Drago at trial on
the process of his reaching his opinions in accordance with Rule
26, as it relates to his credibility.
C.

Dr. Marilyn Miller

Defendants move to exclude the report (Doc. 250) and testimony
of Marilyn Miller, Ph.D., Howard’s crime scene expert. (Doc. 149.)
Although

they

conflate

their

arguments

in

their

briefing,

Defendants present two primary grounds for exclusion: 1) a charge
that Miller’s report, in similar fashion to that of Drago, was
effectively ghost written by Howard’s counsel such that she did
not substantially participate in the report’s creation as required
by Federal Rule of Civil Procedure 26(a); and a Daubert/Rule 702
challenge, contending that Miller’s testimony is not reliable
because it is not supported by the evidence.
As to the first argument, Rule 26(a)’s requirements are not
merely technical but exist in part to ensure the expert’s opinions
are her own, and that the expert is not a hired gun who “merely
express[es] the opinions of the lawyers who hired” her.

Trigon,

204 F.R.D. at 294.

Such latter opinions would not be helpful to

the trier of fact.

See Fed. R. Evid. 702.

Here, the record suffers from the same limitations as with
expert Drago; namely, Howard’s counsel frequently objected during
31

Miller’s

deposition

to

defense

counsel’s

questions

about

the

process of creating the report and directed Miller not to answer.
Unfortunately,

as

with

Drago,

there

was

also

no

resolution of the dispute through a motion to compel.
what

record

evidence that

does

exist

is

troubling.

subsequent
However,
At

her

deposition, Miller stated that she merely gave a “template” of her
report to Howard’s counsel.

In relevant part, she testified:

Q. Well, Mr. [Drago] testified that he had a conversation
with the Plaintiff’s lawyers. Then they prepared a report
and sent it to him. Was that done in this case?
A.

No.

Q.

Did you actually type up your report?

A.
I have a template that I will often use for affidavit
purposes. And then also -- so that part was written. And
then we had a general conversation over the phone where –Q.

And I don’t want to know the details of it.

A. Okay. That was the beginning of the interaction with the
attorneys.
Q. And so in the template that you provided to the attorneys
for Mr. Howard, did that contain any opinions that you had
formulated in this case?
A.

No.

Q.

And --

A. What it did was it gave the outline of how I normally
prepare affidavits. And that didn’t necessarily follow civil
guidelines.
(Doc. 149-1 at 54:16-55:14.)

At this point, Howard’s counsel

objected “to any further inquiry” and instructed Miller not to

32

answer questions, including the following:
So the affidavit, when it came back to you, did it
contain opinions about this case? (Id. at 56:2-3.)
So to just clarify, the template for your report, you
sent that to Mr. Howard’s attorneys. And when you sent
that, it did not contain any of your opinions in this
case, correct? (Id. at 56:20-24.)
The template that you provided to Plaintiff’s Counsel,
was that returned to you with opinions that you
ultimately have adopted? (Id. at 57:20-22.)
Now the report is dated July 31, 2019.
When did you
send the template to Mr. Howard’s attorney? (Id. at 58:35.)
Who did you send your template to?

(Id. at 58:12-13)

When did you first receive your template back that
contained any opinions that you have ultimately adopted?
(Id. at 58:17-19.)
In preparation of your report, the two references here,
were they identified in the template of your report that
you gave to Mr. Howard’s attorneys? (Id. at 63:12-15.)
Further, Miller’s billing records indicate she spent a mere
2.5 hours on the case through the preparation of her report.
148-8 at 3.)

(Doc.

This negligible amount of time, combined with

Miller’s testimony that she gave a “template” that did not contain
any of her opinions to Howard’s counsel, strongly indicates that
Howard’s counsel actually prepared Miller’s report.
In response, Howard relies heavily on the fact that, before
she was retained for this case, Miller was retained by Howard’s
post-conviction counsel and testified at his August 2016 postconviction DNA hearing. In preparation for that prior work, Howard
33

says, Miller reviewed many of the same materials.

Howard argues

that, in the present case, Miller is “offer[ing] some of the same
opinions

she

had

already

reached

and

testified

Plaintiff’s post-conviction proceedings in 2016.”
4.)

In

other

words,

Howard

says,

Miller

did

to

during

(Doc. 209 at
substantially

participate in the creation of the report because, three years
prior, she reviewed the same materials and gave the same opinions.
(See id. at 19-21 (“[I]t is beyond any dispute that Prof. Miller
had ‘prior substantive input’ in the opinions — again, because she
formulated the opinions and testified to them years before her
report

was

written.

opinions she had

Counsel’s

assistance

already testified

to

—

in

summarizing

the

before Prof. Miller

reviewed, edited, and signed the report under penalty of perjury
as accurately reflecting her opinions — is perfectly permissible
under Rule 26.”).)
A careful review of Miller’s 2016 testimony and 2019 report
for this case does not fully support this contention.
report,

Miller

offers

three

main

opinions:

1)

In her 2019

“the

evidence

collected and documented from the murders of Doris and Nishonda
Washington indicates that sexual assaults were committed on both
women at the crime scene close to the time of their deaths”; 2) “a
detective or crime scene investigator with minimal competence and
training based on minimally acceptable practices in crime scene
investigation in 1991 would have searched for evidence of s exual
34

assaults and perpetrator

DNA

at

the

scene

of

the

Washington

murders”; and 3) the “evidence from the crime scene does not
indicate that the fire was set primarily or for the sole purpose
of destroying the bodies and hiding evidence on the bodies.” (D oc.
250-1 ¶¶ 32-34.)
Miller can fairly be said to have previously testified as to
the first opinion at the 2016 post-conviction hearing.

When asked

by Howard’s post-conviction counsel at that hearing, “[D]o you
have an opinion as to whether a sexual assault took place in
connection

with

these

murders

at

this

crime

scene?”,

Miller

answered in the affirmative and testified, “[T]here was a sexual
assault committed at this crime scene.”

(Doc. 209-1 at 133:21-

134:2.)
Miller did not directly testify to the second opinion in 2016.
The closest she comes is, when asked “do you have an opinion as to
whether the killers would have left DNA in and on these women?”,
she

responds

affirmatively

evidence to look for.”

and

states,

“that

(Id. at 135:20-136:2.)

would

be

clear

However, in the

context of the questioning, this opinion was offered to establish
that DNA was recovered from the Washingtons and that it excluded
Howard.

This, after-all, was the purpose of the 2016 DNA hearing.

She never testified that a detective with minimal competence and
training would have looked for evidence of sexual assault.

Nor

would that have been likely since, unlike in this civil trial where
35

Dowdy is a Defendant, his competence was not an issue at the 2016
hearing.

What makes this a slightly closer call is that later in

that 2016 hearing, she did outline multiple actions that “could
have been done” by the investigators, including collecting the bed
sheet and searching it for fluids and hair, and she ultimately
stated that “imposing the standards that I used as a crime scene
investigator in the early ‘90s . . . I would have done more than
what was done here.”

(Id. at 153, 165, and 174.)

As to the third opinion, when asked in the 2016 hearing why
the perpetrators would set the apartment on fire, she responded,
“To destroy any evidence that might be left and present, to disrupt
it.”

(Id. at 151:24-25.)

She stated that the Washingtons were

“found in this crime scene that is attempted to be disguised by
burning it down.”

(Id. at 146:24-25.)

Later she spoke about “the

fact that the scene has tried to be disrupted or destroyed with
the fire” (id. at 172:4-5) and stated, “I can say there was a
sexual assault, the victims were placed on this bed, there was a
fire started to attempt to obliterate it, based only on the
physical evidence I have” (id. at 174:10-13).

This 2016 testimony

refers to the destruction of the evidence, including the bodies
and the rest of the crime scene.

This is the natural reading of

Miller’s prior testimony that the fire was set “[t]o destroy any
evidence that might be left and present.”
added).)

(Id. at 151:24 (emphasis

Now, Howard contends that Miller’s opinion is that “that
36

no minimally trained crime scene investigator would conclude that
the fire was set for either of those purposes [“to destroy the
bodies or hide evidence].”

(Doc. 209 at 5.)

Howard recognizes the inconsistencies between Miller’s 2016
and 2019 opinions.

His framing of Miller’s key opinions in 2016

and in 2019 reveal differences in them (Doc. 209 at 4), and he
contends that Miller was retained to provide “some” of the same
opinions she reached in 2016 (id.).
To

compound

the

problem,

it

is

also

apparent

that

the

documents Miller reviewed prior to her 2016 testimony could not
have included the documents she says she reviewed for her 2019
report.

At the very least, four documents

were not even in

existence in 2016 -- the transcript of her own 2016 testimony,
Dowdy’s 2019 deposition transcript, Judge Hudson’s December 2016
Order vacating Howard’s conviction, and Howard’s
paragraph) complaint in this case.

33-page (175

These documents total some 500

pages of material alone, which Miller says she reviewed in the 2.5
hours she spent on the case through the preparation of her report.
(See Docs. 1, 87-2, 87-3, 209-1.)
In sum, as with Drago, Miller’s report reveals substantial
concerns.

Despite counsel’s assertions before this court, both in

briefing and at the hearing, that Miller is merely reviewing the
same documents and repeating the same opinions as in 2016, the
record simply does not support this claim.
37

Miller provided a

“template” to Plaintiff’s counsel containing none of her opinions;
her billing records indicate she spent a total of 2.5 hours through
the preparation of her report; her report states she reviewed at
least four new documents that she would not have been able to
review prior to her 2016 testimony, totaling about 500 pages,
during these 2.5 hours; and her report contains opinions she did
not express in 2016.
As the cases cited by Defendants indicate, once an expert
purports to have prepared and signed a report, the opponent bears
the burden

of proving

that

participate in preparing it.

the

expert did not

substantially

See Trigon, 204 F.R.D. at 295 (“The

burden of proving ghost writing rests with [the opponent of the
evidence].”); Manning v. Crockett, 1999 WL 342715, at *4 (N.D.
Ill. May 18, 1999) (denying a motion to exclude expert testimony
and noting that a renewed motion must be “accompanied by evidence
supporting the conclusion that [the expert] lacked significant
personal involvement in the preparation of his report”).

Based on

the record, the court finds that Defendants have met that burden
here as to Miller’s third opinion.
Given that Miller testified as to her report’s first opinion
(Doc. 250-1 ¶ 32) both in 2016 and in 2019, and because she gave
similar testimony in 2016 as to the report’s second opinion, she
will be permitted to testify as to those opinions in this case.
Even though counsel drafted Miller’s report, counsel appears to
38

have done so by importing these earlier opinions – of which
Howard’s counsel was aware -- into the report, and Miller has
offered those as her own at this time.
opinion

can

fairly

demonstrated
justified.

that

be
his

said

to

be

counsel’s

In this respect, the

Miller’s,

drafting

and

was

Howard

has

substantially

Indiana Ins. Co. v. Hussey Seating Co., 176 F.R.D.

291, 293 (S.D. Ind. 1997) (stating that “pursuant to [Federal]
Rule [of Civil Procedure] 37(c), a party’s failure to comply with
rule 26(a) results in an ‘automatic and mandatory’ exclusion of
expert testimony, unless the party to be sanctioned can show that
the violation was ‘justified or harmless.’”); Marek v. Moore, 171
F.R.D. 298, 302 (D. Kan. 1997) (considering ghost-writing under
Rule 37(c)(1)’s “substantial justification” or “harmless” test,
but finding it was not to an impermissible level).8
However, Miller will not be permitted to testify as to her
third opinion.

(Id. ¶¶ 33-34.)

Not only did she not testify to

that opinion in 2016, which is the only basis now offered to
justify counsel’s drafting of the opinion portion of her report,

While these cases pre-date Rule 26’s 2010 amendment, some courts have
continued to apply a similar standard.
See, e.g., Harmon v. United
States, 2017 WL 4098742 (D. Md. 2017) (relying on Indiana Insurance
Company’s finding that the failure to comply with Rule 26 was
“harmless”); Mullen v. South Denver Rehabilitation, LLC, 2020 WL 6680358
(D. Co. 2020) (finding the same where counsel drafted a report after
substantive conversations with the expert). As the Fourth Circuit has
noted, “the basic purpose of Rule 37(c)(1) [is] preventing surprise and
prejudice to the opposing party.” S. States Rack & Fixture, Inc. v.
Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
8

39

she testified to just the opposite.

Nor is there any indication

that she somehow communicated this new opinion to Howard’s counsel
in

advance.

counsel.9

Rather,

this opinion

must

have originated with

But even if it were later adopted by Miller, that would

not cure the defect.

See Manning v. Crockett, 1999 WL 342715, *3

(N.D. Ill. 1999) (noting that “preparing the expert’s opinion from
whole cloth and then asking the expert to sign it if he or she
wishes to adopt it” conflicts with Rule 26(a)(2)(B)); Tindall v.
H & S Homes, LLC, 2012 WL 3241885, *2 (M.D. Ga. 2012) (explaining
that an expert merely adopting a report prepared by counsel would
“clearly exceed the level of assistance contemplated by Rule 26.”).
Defendants’ second argument is that Miller’s opinions are not
reliable under Federal Rule of Evidence 702.

Because the court

has excluded Miller’s third opinion, only the first and second
opinions will be considered as to this challenge.
Rule 702 provides four requirements that a witness qualified
as an expert must meet in order to testify: (1) the expert’s
specialized knowledge will “help the trier of fact to understand

This is further evidenced by Miller’s difficulty explaining the basis
for this opinion during her deposition. For example, Miller’s report
concluded that the fire in the Washingtons’ apartment was not set to
destroy evidence and the evidence showed the victims’ clothes were
removed during the sexual assault. (Doc. 250-1 at ¶ 34.) At deposition,
however, Miller knew of no evidence indicating when the victims’ clothing
was removed (Doc. 149-1 at 74), admitted that she had no evidence to
conclude when the clothes were removed (id. at 113), and could not opine
on whether the victims were wearing clothes at the time the semen was
deposited (id. at 77.)
9

40

the evidence;” (2) the testimony has a sufficient factual basis;
(3) the testimony is the result of reliable methodologies; and (4)
the expert reliably applied the methodologies to the facts.

Fed.

R. Evid. 702(a)-(d). The “proponent has the burden of establishing
that

the

pertinent

admissibility

requirements

are

met

by

a

preponderance of the evidence” pursuant to Federal Rule of Civil
Procedure 104(a).

See Fed. R. Evid. 702 Advisory Committee notes

to 2000 amendment; Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993); Sardis v. Overhead Door Corp., --- F.4th ---, 2021 WL 3699753, at *8 (4th Cir. 2021) (noting that the Federal
Rule of Evidence Advisory Committee has recently stated that judges
must “apply the preponderance standard of admissibility to Rule
702’ requirements.”) (quoting Advisory Comm. on Evidence Rules,
Agenda for Committee Meeting 17 (Apr. 30, 2021).

Proponents need

not show by a preponderance that their experts are correct, but
rather that “their opinions are reliable.”

In re Paoli R.R. Yard

PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994); see also Daubert,
509 U.S. at 589 (1993).

Reliability is a “flexible” inquiry

focused on “the principles and methodology” used by the expert to
ensure

that

the

expert’s

opinion

is

“based

on

scientific,

technical, or other specialized knowledge and not on belief or
speculation.”

Daubert, 509 U.S. at 594-95; Oglesby v. Gen. Motors

Corp., 190 F.3d 244, 250 (4th Cir. 1999).
Defendants argue that Miller’s opinions are not reliable
41

because they are not supported by the evidence.
second opinions are related.

Her first and

Her first opinion is that “the

evidence collected and documented from the murders of Doris and
Nishonda Washington indicates that sexual assaults were committed
on both women at the crime scene close to the time of their deaths”
(Doc. 250-1 ¶ 32); and her second opinion is that a minimally
competent

crime

scene

investigator

“would

have

searched

for

evidence of sexual assaults and perpetrator DNA at the scene of
the Washington murders” (id. ¶ 33).

Defendants largely challenge

her conclusions that the sexual assaults were committed “at the
crime scene” and “close to the time of their deaths.”
at 9.)

(Doc. 150

They point out the following: Miller cannot identify when

the sperm/semen was deposited in the victims, as that is beyond
her expertise; Miller cannot say where either victim was at the
time of their sexual encounter, including in their apartment;
Miller cannot say whether either woman was clothed when the sexual
encounter took place; Miller cannot say when their bruises were
inflicted; Miller cannot place the physical trauma in relation to
the timing of the sexual encounters; Miller claims the presence of
cream-colored

fluid

found

in

Nishonda’s

vagina

was

“highly

suggestive” of a sexual assault and not consensual sex based on an
“association I am making” because of the bodies being found nude,
even though she conceded it could have come from a consensual act;
Miller does not dispute the testimony of Dr. Thompson, the medical
42

examiner, that there is no evidence the sperm found in Nishonda’s
anal cavity was deposited at the time of her death; and Miller
concedes that the sperm found in Nishonda’s anal cavity could have
drained from her vagina.
Howard

responds

(Doc. 150 at 9-14.)

that

Defendants

misrepresent

Miller’s

experience, which is as a crime scene investigator who opines on
what a minimally-trained investigator would have done.
at 9-10.)

(Doc. 209

As to the first opinion, Howard contends that Miller

opines only that “the evidence indicates Doris and Nishonda were
sexually assaulted.”

(Id. at 11.)

Howard argues that “Defendants

misconstrue Prof. Miller’s opinion that the evidence indicates
that Doris and Nishonda were sexually assaulted for an opinion,
which she does not offer, that it definitively establishes that.”
(Id. at 12.)

Howard also notes that Miller relies on the totality

of the evidence, not any particular piece of it.

(Id.)

Finally,

Howard argues that the predicates for Miller’s opinions (such as
that the sperm in Nishonda was deposited within 24 hours of her
autopsy, and that the vaginal laceration in Doris was caused by an
object at or near her death), are set out by the medical examiner. 10
10

As to Nishonda, the medical examiner noted “examination of the external
genitalia reveals minimal erythema of the labia and of the mucosa of the distal
vagina. There is a moderate amount of cream-colored fluid within the vagina.”
(Doc. 87-18 at 2.)
The medical examiner also noted “no spermatozoa are
identified on examination of smears of the mouth and vagina. Spermatozoa heads
are identified in a smear of the anus.” Id. at 6. Miller combines the medical
examiner’s discovery of a cream-colored fluid in Nishonda’s vagina with his
finding that the anal smears revealed spermatozoa heads to conclude that “the
spermatozoa was deposited within 24 hours of the autopsy.”
(Doc. 250-1 at

43

(Id.)
As a former crime scene investigator and current professor of
forensic science, Miller offers her opinion as to the evidence at
the crime scene of the Washington murders. (Doc. 149-1 at ¶¶ 3233.)

This opinion is relevant to the claim that Defendant Dowdy

both reported to prosecutors and testified at trial that there was
no evidence that either Doris or Nishonda was sexually assaulted
and that he never investigated the Washington murders as sexual
assaults.

Miller’s opinion as to what evidence would be important

to a crime scene investigator and why will assist the trier of
fact

to understand the

underlying evidence

of the Washington

murders to reach a conclusion about Dowdy’s subsequent actions in
investigating the crime.

As such, it is relevant under Rule 702.

Belville v. Ford Motor Co., 919 F.3d 224, 232 (4th Cir. 2019)
(noting that an expert’s opinion is relevant if it has “a valid
scientific connection to the pertinent inquiry”).
But Howard’s explanation for how she articulates her first
opinion is unsatisfactory, as the standard for admissibility and
for liability in this instance is not “definitiveness,” but rather
a “preponderance.”

It is unclear whether by “indicates” Miller

¶ 32b.) As to Doris, the medical examiner stated at Howard’s 1995 trial that
“something would have had to have been placed inside the vagina … to [cause]
some pressure put upon it to cause that tear.” (Doc. 87-13 at 19-21.) Miller
claims that the medical examiner “concluded from autopsy that an object had to
have been inserted into Doris Washington’s vagina.”
(Doc. 250-1 at ¶ 32e.)
While the medical examiner did not state that in his autopsy report, he did
testify to that effect in Howard’s 1995 trial.

44

means that the evidence “is consistent with” or “supportive of” a
sexual assault, or rather that “more likely than not” a sexual
assault occurred. If it is the latter, Miller has not demonstrated
by a preponderance that she has a sufficient factual basis for, or
applied a reliable methodology to render, a probability opinion.
As

Defendants

point

out,

there

questions Miller cannot answer.

are

simply

too

many

factual

For example, Miller’s report

concludes that the evidence from the Washington murders indicates
that sexual assaults were committed at the crime scene “close to
the time of their deaths.”

(Doc. 250-1 ¶¶ 32-34.)

In her

deposition, however, Miller was unable to identify how long the
sperm was deposited in either victim, admitted that any opinion as
to the time sperm was deposited was beyond her expertise, and does
not know where the victims were when the sperm was deposited.
(Doc. 149-1 at 69-71.)
Thus, Miller may opine as to what a crime scene investigator
would have regarded to be important evidence and what steps should
have been taken to conduct the investigation.

To the extent

Defendants argue that facts upon which Miller relies are either
disputed or unknown to her, that goes to the weight of her opinions
and is properly the subject of cross-examination.

See Bresler v.

Wilmington Tr. Co., 855 F.3d 178, 195 (4th Cir. 2017) (“[Q]uestions
regarding the factual underpinnings of the expert witness’ opinion
affect the weight and credibility of the witness’ assessment, not
45

its

admissibility.”)

(alterations,

citation,

and

quotations

omitted).
Accordingly, Defendants’ motion to preclude Miller’s report
and testimony is granted in part as to Miller’s first opinion,
denied as to her second opinion, and granted as to her third
opinion.
D.

Dr. Moira Artigues

In two separate motions, Defendants move to exclude certain
testimony from Dr. Moira Artigues, a psychiatrist designated by
Howard as an expert witness.

(Docs. 151, 153.)

Defendants first move to preclude Dr. Artigues’s testimony
and report to the extent it purports to analyze or explain Howard’s
demeanor during his deposition or at trial.
opposes the motion.

(See Doc. 205.)

(Doc. 151.)

Howard

At the court’s direction

following the hearing on July 23, 2021, the parties conferred and
on July 30, 2021, submitted a joint filing that reports they have
resolved this motion.

(Doc. 255.)11

This motion (Doc. 151) will

The parties have agreed that Dr. Artigues (1) may testify about the
symptoms of Post-Traumatic Stress Disorder (“PTSD”) and her observations
of how those symptoms were displayed during her personal interviews with
Howard, to the extent those observations are consistent with her report;
(2) may testify generally that she was provided and watched a copy of
Howard’s deposition testimony dated 10/01/2019 and she observed symptoms
during his deposition similar to those she observed in her personal
interviews with Howard; and (3) may not testify about or analyze any
particular testimony from Howard at his deposition or trial, and neither
Dr. Artigues nor Howard’s counsel may present or refer to any particular
testimony from Howard’s deposition or any particular testimony from
Howard while Dr. Artigues is testifying. (Doc. 255.)
11

46

therefore be deemed moot.
Defendants also move to exclude the report and testimony from
Dr. Artigues to the extent it states or implies “that she has
reached an expert conclusion through her examination of [Howard]
that [he] has suffered harm arising from the alleged ‘wrongful’
nature of his imprisonment as distinguished from harm that arose
from a lengthy period of incarceration generally.”
1-2.)12

Defendants

do

not

contest

the

(Doc. 153 at

admissibility

of

Dr.

Artigues’s diagnosis of PTSD, nor do they contest Dr. Artigues’s
attribution of that condition to Howard’s incarceration.

Rather,

they narrowly challenge the conclusion that the condition was
caused by his wrongful incarceration.
This inquiry is governed by Federal Rule of Evidence 702, the
standards of which have already been set out. Defendants challenge
the reliability of Dr. Artigues’s opinions.
opinion

must

specialized
inferences
methods.”

be

based

knowledge
must

be

on

and

scientific,

not

derived

on

using

belief

“A reliable expert

technical,
or

scientific

or

other

speculation,
or

other

and

valid

Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 200 (4th

In this motion, Defendants also move to preclude the introduction of
testimony from Dr. Artigues that states or implies that Howard “has been
exonerated or adjudged innocent or . . . wrongfully convicted or
incarcerated.” (Doc. 153 at 1.) For the reasons stated earlier in this
opinion, Dr. Artigues shall not refer to any finding of “actual
innocence” in the December 2016 Order by the governor’s Pardon of
Innocence. As the parties agree, however, Dr. Artigues may opine based
on the assumption that Howard was wrongfully convicted, should a jury
so conclude. (Doc. 246 at 27.)
12

47

Cir. 2001) (quoting Oglesby v. Gen. Motors Corp., 190 F.3d 244,
250 (4th Cir. 1999)).

To guide this “gatekeeping” function, the

Supreme Court has identified several non-exhaustive factors useful
for evaluating the reliability of proposed expert testimony, which
include:
(1) whether a theory or technique can be or has been
tested; (2) whether it has been subjected to peer review
and publication; (3) whether a technique has a high known
or potential rate of error and whether there are
standards controlling its operation; and (4) whether the
theory or technique enjoys general acceptance within a
relevant scientific community.
Id. at 199 (citing Daubert, 509 U.S. at 592–94).

Howard must

establish the admissibility of Dr. Artigues’s testimony by “a
preponderance of proof.”

Id.

However, “[t]he trial court’s role

as a gatekeeper is not intended to serve as a replacement for the
adversary system.”

In Re Lipitor Mktg., Sales Pracs. & Prods.

Liab. Litig., 892 F.3d 624, 631 (4th Cir. 2018).

And while “the

holding of Daubert is as readily applicable in cases involving
psychologists as in those in which the proffered expert testimony
is of a more scientific nature,” United States v. Guild, No.
1:07cr404, 2008 WL 153764, *2 n.1 (E.D. Va. Jan. 14, 2008), courts
have also “recognized a particular need to employ a ‘flexible’
test in areas outside of the hard sciences,” Coal. for Equity &
Excellence in Md. Higher Educ. v. Md. Higher Educ. Comm'n, 295 F.
Supp. 3d 540, 551 (D. Md. 2017) (citing United States v. Simmons,
470 F.3d 1115, 1122–23 (5th Cir. 2006)).
48

Once an expert’s opinion

crosses
devices”

Rule 702’s preponderance threshold, the
of

“[v]igorous

cross-examination,

“conventional

presentation

of

contrary evidence, and careful instruction on the burden of proof,”
are “the traditional and appropriate means of attacking shaky but
admissible evidence.”

Id. (quoting Daubert, 509 U.S. at 596).

Defendants do not challenge Dr. Artigues’s qualifications and
do not contend her conclusion that Howard suffers from PTSD is
inadmissible.

(See Doc. 154 at 9.)

Rather, they contend that Dr.

Artigues has no basis to conclude that Howard suffered a particular
harm based upon his “wrongful” incarceration, (id.), and that she
did not conduct a differential diagnosis to exclude the effects of
incarceration generally from those of “wrongful” incarcerations,
(Doc. 237 at 3).

They further criticize the literature regarding

the effects of wrongful incarceration on which Dr. Artigues relied
because “without a comparison group of interviews with people who
were imprisoned who did not have their convictions overturned[,]
they provide no scientifically reliable basis to determine which
if any of those symptoms are unique to people whose convictions
were wrongful.”

(Id. at 4; Doc. 154 at 10-12.)

Howard responds

that Dr. Artigues reliably performed a differential diagnosis in
determining the cause of Howard’s PTSD and that the literature
upon which she relied, which has been published in peer-reviewed
journals, represents reliable qualitative research.
12-16.)
49

(Doc. 206 at

In her report, Dr. Artigues purports to conduct a differential
diagnosis in evaluating Howard.13
symptoms

she

Association’s
Disorders

observed

in

Diagnostic

(DSM-5)

criteria

Specifically, she compares the

Howard
and

to

the

Statistical

for

PTSD

and

diagnostic criteria for that condition.

American
Manual
finds

he

Psychiatric
of

Mental

meets

the

(Doc. 152-1 at 14-15.)

She also eliminates other potential causative factors, such as his
early exposure to violence, by examining his prior mental health
examinations to determine the time of the onset of symptoms.
at 12-13.)

( Id.

Up to this point, Defendants do not challenge the

propriety of Dr. Artigues’s methodology.

(See Doc. 237 at 2-3.)

Dr. Artigues then goes on to compare Howard’s symptoms with
those described in selected research literature regarding the
effects of long incarcerations on innocent individuals, concluding
that Howard has “suffered in the ways that the literature regarding
exonerees has shown.”14

(Doc. 152-1 at 16-19.)

For example, Dr.

A differential diagnosis is “a standard scientific technique of
identifying the cause of a medical problem . . . by determining the
possible causes for the patient's symptoms and then eliminating each of
these potential causes until reaching one that cannot be ruled out or
determining which of those that cannot be excluded is the most likely.”
Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999).
13

Defendants have not argued that Artigues is improperly bolstering her
opinion by so testifying nor is it apparent precisely how Artigues
intends to present such testimony, so the court does not consider that
potential issue. United States v. Tran Trong Cuong, 18 F.3d 1132, 1144
(4th Cir. 1994) (stating that an expert may not bolster the reliability
of his own opinion by testifying about a non-testifying expert witness’
credentials and opinion).
14

50

Artigues states that Howard has an “exaggerated sense of fairness”
that is accompanied by profound mistrust of others — so much so
that he quit his job because he discovered a coworker was paid
less than he was; fears being out in public because of the feeling
of

notoriety

those

wrongfully

incarcerated

have

because

they

believe everyone knows who they are; questions reality as those
wrongfully accuse start to believe they must have committed the
crime others say they have committed; has lost members of his
family while incarcerated both due to death and because people
perceive him as a criminal and distance themselves away from him;
suffered physical and psychological deterioration; struggled with
reentering society; and fears interaction with law enforcement
because

they

might

wrongfully

accuse

him

again.

Defendants

challenge this conclusion.
Dr. Artigues is certified by the American Board of Psychiatry
and Neurology in both General and Forensic Psychology and is a
current member of the Psychiatry and Law Committee of the North
Carolina Psychiatric Association.

(Doc. 154-1 at 2.)

She has

extensive experience working with incarcerated populations and
conducting examinations for the purpose of litigation.

( Id.)

In

preparing her report, she met with Howard for examination and
interviews on five occasions over eight months.
interviewed
multiple

one

of

documents,

Howard’s

life-long

including
51

filings

( Id.)

friends

and

pertinent

She also
reviewed
to

these

proceedings, including Howard’s medical records from his time both
within and outside of prison.

(Id. at 2-3.)

In concluding that Howard suffers PTSD as a result of his
wrongful incarceration, Dr. Artigues’s report relies on a body of
peer-reviewed research literature that
the

mental

health

examines

of

and discusses

commonalities

in

individuals

wrongfully

incarcerated.

While at least one article discusses, tangentially,

how such populations compare with other incarcerated individuals,
see Leslie Scott, “It Never, Ever Ends”: The Psychological Impact
of Wrongful Conviction, 5 Am. U. Crim. L. Br. 10, 13 (2010),
Defendants are correct that no study systematically compares these
groups.15

Even

so, the court

relevant and reliable.

finds

Dr. Artigues’s testimony

There is no indication that the peer-

reviewed literature on this issue is unreliable in its evaluation
of

the

symptoms

of

the

wrongfully

Defendants provide no such evidence.

incarcerated;

certainly,

See also Daubert, 509 U.S.

at 594 (finding that reliability is enhanced if the research is
“subject[ed] to the rigors of peer review and publication” ).

The

The other studies relied upon by Dr. Artigues are as follows: Kathryn
Campbell & Myriam Denov, The Burden of Innocence: Coping With a Wrongful
Imprisonment, 46 Canadian J. Criminology & Crim. Just. 139 (2004);
Kathryn Campbell & Myriam Denov, Miscarriages of Justices: The Impact
of Wrongful Imprisonment, 13 Just Rsch. (2014); Adrian Grounds,
Psychological Consequences of Wrongful Conviction and Imprisonment, 46
Canadian J. Criminology & Crim. Just. 169 (2004); Adrian Grounds,
Understanding the Effects of Wrongful Imprisonment, 32 Crime & Just. 1
(2005); Saundra D. Westervelt & Kimberly J. Cooke, Framing Innocents:
The Wrongly Convicted As Victims of State Harm, 53 Crime Law & Soc.
Change 259 (2009).
15

52

lack of a control group alone does not warrant exclusion here.
See United States v. Batiste, No. 06-20373-CR, 2007 WL 5303052, at
*5 (S.D. Fla. Oct. 26, 2007) (“[A]lthough there is no control group
in the radicalization process, there is an existing data field for
the

radicalization

process,

as

well

as

a

consensus

in

the

literature regarding the validity of this process.”). Dr. Artigues
has significant experience and qualifications, has conducted a
sufficient examination of Howard and the other relevant sources,
and has come to her conclusion based upon both the peer-reviewed
literature and her expert judgment.
In light of the above, Dr. Artigues may testify, based on her
own observations, professional judgment, and familiarity with the
peer-reviewed

literature,

that

Howard’s

PTSD

symptoms

are

consistent with those observed by other researchers in wrongfully
incarcerated

populations.

She

has

demonstrated,

by

a

preponderance, that her opinion will assist the trier of fact and
is based on sufficient facts and data.

Moreover, she has applied

the standards set out in the DSM-5, which are reliable, and
reliably applied them here to Howard’s situation.

Notably, she is

not attempting to parse out attribution of any PTSD symptoms, but
rather is merely opining that Howard’s symptoms are “consistent
with” those of individuals wrongfully convicted.

To the extent

Defendants contest the rigorousness of the underlying studies on
which she relies, as well as the bases for her opinion, these
53

challenges are properly the subject of cross-examination.

See

also Westberry v. Gislaved Gummi AB, 178 F.3d 257, 265 (4th Cir.
1999) (finding that doctor’s explanations as to conclusions not
ruled out related to the opinions’ weight and not admissibility).
For this reason, Defendants’ motion is denied.
E.

Suzanna Ryan

Howard

moves

to

exclude

testimony

from

Suzanna

Ryan,

a

forensic DNA consultant designated by Defendants as an expert
witness.

(Doc. 155.)

In substance, Ryan, who holds a bachelor of

science degree in biology and a minor in chemistry, and who has
over 20 years’ experience in forensic serology and DNA analysis,
testifies

to

the

likelihood

that

Doris

Washington’s

sexual

activity did not occur in close proximity to her death.16
Howard’s principal challenge is the reliability of Ryan’s
conclusion

regarding

time

since

Jermeck Jones and Doris Washington.

intercourse

(“TSI”)

between

Ryan’s report concluded, in

relevant part, “In my opinion, the lack of AP [acid phosphatase]
activity, combined with the fact that there are likely only a very
few sperm cells present in the vaginal swabs, is an indication
that sexual activity between Jermeck Jones and Doris Washington

Ryan agrees with Howard’s expert, Meghan Clement, that given the sperm
present on the vaginal smear from Nishonda Washington, “sperm ‘would
have been deposited less than 24 hours prior to her time of death’, thus
making it more likely than not that the sexual contact was recent.”
(Doc. 207-1 ¶ 8.)
16

54

likely occurred several days prior to the vaginal swab sample being
collected,” which was at Doris Washington’s autopsy on the morning
of November 27, 1991, approximately 9 hours after her death. (Doc.
156-3 ¶ 7.)

Ryan has two bases for this opinion.

The first is

the lack of evidence of sperm on the vaginal swabs taken from Doris
Washington.

According to Ryan, “the amount and quality of sperm

cells in the vaginal canal decrease in a fairly linear fashion as
time-since-intercourse (TSI) increases, with ‘few’ or no sperm
cells typically detected after ~ 72 to 96 hours.”

(Id.)

Ryan

relies on the fact that the State Bureau of Investigation (“SBI”)
and the medical examiner did not observe any sperm on two slides
of fluid taken from Doris’s vagina.17
190:17-23, 191:2-18.)

(Doc. 259-2 at 184:19-25,

The second basis is the fact that in March

1993 -- about 15 months after the murders -- the SBI conducted an
acid phosphatase (“AP”) test on Doris Washington’s vaginal swabs,
which was negative.

AP is an enzyme found in high concentrations

in semen, higher than in other bodily fluids.
Doc. 253-1 at 94:2-5.)
sample.

(Doc. 156-3 ¶ 7;

In an AP test, a reagent is added to the

After a set period of time –- such as 30 seconds, 1

minute, or 2 minutes, depending on the lab’s protocols -- either
the color on the sample has changed (a positive test) or the color
has not changed (a negative test).

17

(Doc. 253-2 at 46:16-48:11.)

Howard does not appear to challenge this finding.

55

(Doc. 253-1 at 4.)

The analyst might also test the reagent on both a positive control
(a known semen stain) and negative control (a clean swab) to ensure
the reagent is working.

(Id. at 48:12-49:17.)

The AP test is a

presumptive test for the presence of semen.
Howard argues that Ryan’s conclusion -- that sexual activity
between Jones and Doris Washington “likely occurred . . . several
days prior” to the swab being collected –- lacks a reliable basis
for two main reasons: 1) the AP test itself is unreliable; and 2)
the test is even less reliable in this case because Ryan does not
know

the standard

conducting the test.

(i.e.,

the

cut-off

time)

the

SBI

used

in

(Doc. 156 at 2, 5.)

For his first argument, Howard cites a 2017 study published
in the Journal of Forensic Sciences by David G. Casey et al.
entitled “The Persistence of Sperm and the Development of Time
Since Intercourse (TSI) Guidelines in Sexual Assault Cases at
Forensic Science Ireland, Dublin Ireland” (the “Casey study”).
(Doc 156-7.)

The study appears to be one of the leading studies

on TSI, containing a large sample size (over 5,500 swabs) and with
robust statistical analysis.

Ryan herself lists the Casey study

as a source she consulted in preparing her report (Doc. 156 -3 ¶ 5),
and at her deposition she acknowledged the paper’s strengths as a
recent study with a large dataset that was published in a reputable
journal (Doc. 253-2 at 117:21-122:1.)
study concludes:
56

In relevant part, the Casey

The use of AP reaction time to inform one’s expectations
of the presence or absence of sperm on swabs, to estimate
the time since intercourse . . . is unsafe and unreliable
. . . Our analysis has very clearly demonstrated the
dangers of relying on the AP reaction time on vaginal
swabs and that such an approach could be misleading to
the courts.
(Doc. 156-7 at 8.)

Pertinent here, as evidenced by Table 16 from

the study (reproduced below), the authors found that in analyzing
AP results for sperm-positive swabs at a cut-off time of less than
60 seconds, nearly all intervals from 0 to 48+ hours TSI had a 50%
or less positivity rate:

(Doc. 156-7 at 6.)
significant

Only the 0-12 TSI interval had a statistically

positivity

rate

interval of 0.51, 0.63).

greater

than

50%

(95%

confidence

The 0-6 hour TSI was exactly 50%, but

the low end of the 95% confidence interval could not exclude less
than 50% (95% confidence interval of 0.45, 0.55).

In other words,

according to the Casey study, more than half of the swabs that
were positive for sperm required an AP test time of at least 60
seconds to show a positive result, regardless of when sexual
intercourse occurred.

Thus, if an analyst used an AP cut-off time

of less than 60 seconds, it was more likely than not that a sperm57

positive swab would still report a negative AP result in all but
two of the time intervals.

(Id. at 7.)

More to the point here,

as for Ryan’s opinion that sexual activity occurred “several days”
before the swab was collected from Doris Washington, Table 16 shows
that well fewer than half -- only .31 (24-48 hours TSI) and .45
(48+ TSI) -- of such slides would show a positive AP test result
at less than 60 seconds, with statistical confidence intervals as
low as .23 and only as high as .40 for 24 to 48 hours TSI and .68
for 48+ TSI.

Thus, according to this study, if using an AP test

of less than 60 seconds, more often than not there is a false
negative.
Howard argues that the

reliability of

Ryan’s opinion

is

further undermined by the fact that Ryan does not know the cutoff time the SBI used for its AP test on Doris Washington’s swab.
(Doc. 253-2 at 245:15-17.)

Howard also argues that the SBI notes

do not give a clear indication whether the controls were working;
there is what Howard characterizes as a scribble through the
notation for the positive control, (see Doc. 156-6 at 4-5), which
he contends might indicate the reagent was not working properly.
Therefore, to the extent Ryan’s opinion of “likelihood” is based
on the AP test, Howard contends, it suffers from two deficiencies:
an AP test in which randomness cannot be rejected in more than 50%
of the cases (at less than 60 seconds); and the lack of knowledge

58

of the AP time used by the SBI to reach its AP result. 18
Finally, Howard notes that while in her report Ryan wrote
that sexual activity between Jones and Doris Washington “likely”
occurred “several days prior” to the vaginal swab being collected
(Doc. 156-3 ¶ 7), at her deposition, when asked what she meant by
“several days,” she testified, “I would say at least one to two,
at a minimum, possibly even longer” (Doc. 253-2 at 191:20-21).

In

direct response to Howard’s counsel’s question, “What do you mean
by likely?” Ryan responded:
“Because it’s difficult to be 100 percent positive about
things, I have to -- even the studies are generalities; right?
There’s what we typically expect to see. We’ve already talked
about there’s these outliers and things like that. I can’t
say this absolutely happened two days prior or it absolutely
happened.
You know, this is what it’s consistent with,
though. When I look at these results, AP negative, likely
low number of sperm cells, that is consistent with a longer
time since intercourse. Can I say that that’s 100 percent
what happened? No, because of the factors that we just talked
about, because I wasn’t, you know, I wasn’t there, and these
are just based on generalities, but that is completely
consistent with what I would expect if the person had sexual
intercourse with a person one, two, even up three days prior.”
(Id. at 198:2-18; see also id. at 193:21-25 (“The fact that there’s
no AP activity and there was [sic] no sperm cells visualized, yet
we’re still able to get a result, that is completely consistent
with a more extended time since intercourse interval.”).)

Howard

therefore argues that Ryan cannot testify to a probability opinion

Whether the AP time the SBI employed could have been determined by
further inquiry of the SBI is unclear.
18

59

because the results are only “consistent with” her opinion.
Defendants respond that as for the reliability of AP testing,
Ryan testified in her deposition that “when [Casey and others]
talk about historically, I think they’re referring to the fact
that many years ago, AP was originally thought to be a little bit
more specific than what we realize it is now.”
251:10-13.)

(Doc. 259-2 at

Ryan does not dispute the import of the Casey study,

which concludes that reliance on AP results to determine TSI could
be “misleading” to a court.

(Doc. 156-7 at 8.)

She agrees that

she would not “use the reaction time of AP to try to indicate a
time since intercourse” and states she is not doing so here.
259-2 at 249:5-17)19

(Doc.

She also acknowledges that the AP test is “a

presumptive test” and that “you have to do a confirmatory test to
confirm that.”

(Id. at 251:16.)

While the AP test is important

because it is not positive, Ryan testified, she bases her TSI
opinion on the fact that “there are likely only a very few sperm
cells present on the vaginal swabs.”

(Doc. 156-3 ¶ 7.)

of evidence for TSI, she contends, is sperm quality.
down

in

a

linear

fashion

over

time,

differences, including the loss of tails.

resulting

One piece

Sperm breaks
in

visible

(Doc. 156-3 ¶ 7; Doc.

Ryan does agree with Howard’s expert, Meghan Clement, who acknowledges
that if AP testing is done on a swab that was collected within 12 hours
of intercourse -- as Howard alleges occurred here -- “[t]ypically the
only time we would see AP tests come out negative [is] if the woman was
menstruating . . . But within 12 hours, generally we would see a positive
AP test.” (Doc. 253-1 at 115:14-19.)
19

60

253-2 at 115:4-116:10.)

Ryan testified at her deposition, citing

the Casey study, that “24 hours would probably be the longest time
. . . that I would typically expect to see [sperm] tails present.”
(Doc. 253-2 at 115:23-25.)

When Doris Washington’s swabs were

analyzed by the medical examiner and the SBI, sperm cells were not
observed.20

(Doc. 87-19 at 2; Doc. 87-17 at 9.)

Ryan opines that,

because male DNA was detected however, “it is likely - though
unconfirmed - that a small number of sperm cells were present” in
her vaginal swab.

(Doc. 156-3 ¶ 7.)

As to the AP time used by the SBI in its analysis of Doris
Washington’s swabs, Ryan acknowledges that she does not know the
SBI’s protocols.

(Doc. 156-4 at 245:15-17.)

However, Ryan, who

was trained in conducting AP tests, conducted many herself, and
has worked thousands of DNA cases in various laboratories (id. at
46:8-10; Doc. 259-2 at 77:20-24), testified that “normally most
labs are using two minutes” for a cut-off time to observe AP
reaction.

(Id. at 254:2.)

She further testified that “I can’t

say that every single lab in the country is using two minutes, but
that is kind of a normal or accepted time.”

(Id.)

She also cites

literature to support her opinion that two minutes is “generally
accepted.”

(Doc. 259-2 at 256:23-257:25; Doc. 156-5 (marked as

Howard’s expert, Meghan Clement, also agrees that the medical examiner
and SBI did not observe any sperm. (Doc. 253-1 at 3-4, 15.)
20

61

Ryan deposition Exhibit 102).)21

In her opinion, based on her

training and experience, it would “really surprise me if somebody
is using a 30-second cutoff.”

(Id. at 240:5-6.)

As to the controls, Ryan responds that the SBI worksheet
reflects that controls were in fact used, which would have been
necessary to properly conduct an AP test, and that what Howard
contends is a “scribble” through the reference to a control appears
more

likely

to

be

the

laboratory

technician’s

markings

to

acknowledge that she conducted her positive and negative controls.
(Doc. 156-4 at 222:22-25.)
As discussed above, on a Rule 702 challenge, Defendants bear
the burden of establishing the admissibility of Ryan’s testimony
by “a preponderance of proof.”

Cooper, 259 F.3d at 200.

While

the Supreme Court has identified several non-exhaustive factors to
consider in determining if an expert’s opinion is reliable, id. at
199, the principal inquiry under Rule 702 is whether there is
evidence, judged by a preponderance, that the expert’s testimony
is based on sufficient facts or data, is the product of r eliable
principles

and

methods,

and

is

the

product

of

a

reliable

application of the principles and methods to the facts of the case.
While these factors may be contested, the court is mindful that

The problem with a longer cut-off time beyond two minutes, Ryan
testified, is the risk of false positives, as “there are other bodily
fluids that contain acid phosphatases and there are other things that
can give a positive.” (Doc. 259-2 at 256:13-14.)
21

62

“[t]he trial court’s role as a gatekeeper is not intended to serve
as a replacement for the adversary system.”

In Re Lipitor, 892

F.3d at 631 (citation omitted).
The court, having read the entirety of Ryan’s deposition
submitted by the parties as well as the key studies at issue, finds
that Defendants have carried their burden of proving that Ryan has
met the prerequisites of Rule 702’s admissibility standard by a
preponderance.

Howard’s principal challenge is to Ryan’s use of

AP reaction time, which he says the 2017 Casey study demonstrates
is unreliable as the basis for estimating TSI because it has a
high rate of error.

Ryan agrees that using the AP result to

determine TSI would be unreliable.22

This appears to be consistent

with the Casey study’s conclusion that AP reaction t ime “performs
poorly” as a “sensitivity test for the presence of sperm.”
156-7 at 7.)

But that is not what she is doing.

(Doc.

Rather, Ryan is

basing her TSI opinion on the lack of reported sperm cells observed
on Doris Washington’s vaginal swabs – what she calls the “gold

It is noteworthy that the Casey study is less definite in its
conclusions, stating: “Our findings suggest that the AP reaction
underestimates the expectation of sperm-positive vaginal swabs and
supports our previous suggestion that we should not rely on AP reaction
times as an indicator or sperm-negative vaginal swabs.” (Doc. 156-7 at
6 (emphasis added).) On the other hand, Casey found that an AP time of
less than 30 seconds was “a very good indicator of the presence of sperm”
(88% to 95% expectation of observing sperm). (Id.) This is consistent
with Ryan’s opinion.
22

63

standard” - as well as the fact that the AP result was negative. 23
(Doc. 259-2 at 57:5-24.)
which

includes

Based on her training and experience,

microscopic

visualization

and

has

not

been

challenged, she opines that semen would be detectible in a linear
fashion

after

intercourse

and “few” or

no

typically be detected after 72 to 96 hours.

sperm

cells

would

(Doc. 156-3 ¶ 7.)

She also relies on the fact that 24 hours after intercourse is
“probably” the longest one would expect to observe sperm tails
(Doc. 253-2 at 115:23-24), and no tails were reported here (mainly
because no sperm were identified).24
Moreover, Howard’s challenges to the AP time focus largely on
an assumption that the SBI used a cut-off of less than two minutes,
yet Ryan testified (supported by literature)25 that two minutes is
the standard used my most laboratories in the nation.
2 at 254:2.)

(Doc. 253-

All of this is consistent with the Casey study, which

concluded that “AP reaction time is an unsafe and unreliable
The testimony of Howard’s expert, Clement, that “within 12 hours,
generally we would see a positive AP test” (Doc. 253-1 at 19) is
consistent with Ryan’s consideration of the AP test result.
23

Ryan acknowledges that she has no information about the quality of any
sperm cells because none was identified.
(Doc. 259-2 at 193:10-14.)
However, this does not render her opinion unreliable. The Casey study,
relied on by Howard, similarly concluded that “Our findings show that
the expectation of finding sperm with tails after 24 h is very low . .
. and that sperm with tails on vaginal swabs are more likely to be
detected within 12 h TSI.” (Doc. 156-7 at 5.)
24

Ryan cited a literature review, Providing Evidence Based Opinions On
Time Since Intercourse (TSI) Based On Body Fluid Testing Results of
Internal Samples, by R. Dziak et al., published in the 44 Canadian
Society of Forensic Science Journal 2 (2011).
25

64

predictor of sperm on intimate swabs.”

Doc. 156-7 at 1.

Here,

Ryan is relying on visual observations of the medical examiner and
SBI to confirm the absence of any observable sperm.
AP

result is

consistent

with that

conclusion.

The negative
Thus, Ryan’s

testimony is based on sufficient facts and data - the testing
conducted by the medical examiner, SBI, and the DNA testing by
LabCorp.
Defendants have also demonstrated that Ryan has reliably
applied her principles and methods to that data to arrive at
reliable opinions.

The fact the AP test has variability is

certainly important and subject to cross-examination, but the
court cannot say that Ryan’s inclusion of the negative AP result
reported by the SBI in conjunction with the facts relating to the
clinical reviews’ failure to observe sperm renders the opinion
invalid scientifically.

The AP test is subject to positive and

negative controls, is used routinely in forensic testing, and is
subject to extensive peer-reviewed literature supporting its use
as a presumptive test.

Indeed, Ryan would have to consider the AP

test result, no matter what it was.

Howard’s challenges to it

here are largely based on higher rates of error in the AP test
where the cut-off time is less than two minutes.

But this is an

assumption, not supported by any evidence, that the SBI did not
use what Ryan describes as a standard laboratory two-minute cutoff.

So, while there is a higher rate of error in some AP cut65

off times, it cannot be said that the SBI used a shorter time here.
More importantly, the AP test is only a presumptive test for the
presence of any sperm, and even the Casey study reveals that the
shorter the TSI, the more likely the AP would t est positive and
more sperm would be detected microscopically. (Doc. 156-7 at 8.)
So, any rate of error in the negative AP result does not seriously
undermine Ryan’s opinion.

See United States v. Bonds, 12 F.3d

540, 560 (6th Cir. 1993) (affirming admission of DNA evidence
although there were deficiencies in calculating the rate of error,
because “the error rate is only one in a list of nonexclusive
factors

that

the

Daubert

court

observed

would

bear

on

the

admissibility question.”).
While a preponderance of evidence supports Ryan’s opinion as
to a time since intercourse, the court must also ensure that the
expert does not overstate her opinion.

See Fed. R. Evid. 702

advisory committee note to 2000 amendment (recognizing that on
occasion

an

expert

may

“unjustifiably

extrapolate[]

from

an

accepted premise to an unfounded conclusion”); Gen. Electric Co.
v. Joiner, 522 U.S. 136, 146 (1997) (observing that the trial judge
may find that there is “simply too great an analytical gap between
the data and the opinion proffered”).

Here, Ryan’s report opines

that “sexual activity between Jermeck Jones and Doris Washington
likely occurred several days prior to the vaginal swab sample being
collected.”

(Doc. 156-3 at ¶ 7.)156-3 at 5 (emphasis added).)
66

Yet in her deposition, when asked what she meant by “several days,”
Ryan testified, “I would say at least one to two, at a minimum,
possibly even longer.”

(Doc. 253-2 at 191:20-25.)

Again, she

later testified, “I think the most likely time period, it wou ld be
one to two days.”

(Id. at 192:21-23.)

Otherwise, she has “less

certainty” because she does not know how many sperm cells were
present.

(Id.)

And because while she assumes some sperm cells

were present because the DNA test was positive, the re must have
been few of them because no sperm cells were microscopically
identified.

(Id. at 192:21-193:25.)

Therefore, knowing that the

presence of sperm declines linearly from TSI, the only TSI opinion
to which she can reliably testify as more likely than not is one
to two days.26

Accordingly, her testimony will be so limited.

Accordingly, the court, exercising its gatekeeper function
over expert testimony, finds that Defendants demonstrated by a
preponderance of evidence that Ryan’s opinion that it is “likely”
that sexual activity occurred “one to two days prior” to the
collection of the swabs is the product of reliable principles and
methods that have reliably been applied to the facts of this case.
Having met the

admissibility threshold for

that

more

limited

opinion, any limitations to her testimony or questions as to her

Notably, this more limited opinion is also consistent with the Casey
study, which suggested a guideline that “at a TSI of up to 48 h, the
expectation of obtaining sperm on vaginal swabs can be considered high.”
(Doc. 15607 ay 9.)
26

67

bases are properly the subject of cross-examination.
Howard challenges two other opinions offered by Ryan.

First,

Howard challenges Ryan’s opinion (Doc. 207-1 ¶ 11) that it was
“possible” that sample switching could have occurred during the
medical examiner’s autopsy of both victims because the autopsies
were performed “on the same day, in the same facility, with the
same individuals attending.” (Doc. 156 at 20-21.) Howard contends
that it is contrary to her deposition testimony and lacks a factual
basis.

(Id. at 21.)

Defendants do not offer any explanation in

response.
Ryan only purports to identify potential sources of error in
the medical examiner’s analysis.

For example, she notes that

switched

“the

results

could

occur

if

swabs

and

smears

were

collected and not immediately labeled” or the wrong information
was recorded “multiple times on multiple samples and the error
[was] not [] detected.”

(Doc. 207-1 ¶ 11.)

While she opines such

is possible, she concedes she does not offer any opinion as to a
preponderance.
possible.

Howard does not contend that such errors are not

Thus, while Ryan will be permitted to point out possible

sources of error in any case, she may not offer any opinion that
such occurred here as she has no evidence that it did.
Second,

Howard

challenges

Ryan’s

testimony

that

several

issues “may need further examination to clarify,” such as why
Nishonda’s vaginal and rectal smears detected sperm cells, but her
68

samples did not detect male DNA at the quantitation stage of
analysis, because she noted in deposition that the outcome of those
issues would not undermine the results of the tests.

Howard argues

that these observations are irrelevant and confusing.
at 20-22.)

(Doc. 156

Defendants do not offer any explanation in response as

to how Ryan’s testimony on these unclarified issues is relevant
but state they “do not concede they have withdrawn the opinions .”
(Doc. 238 at 12.)
It goes without saying that where Defendants bear the burden
of

demonstrating

admissibility

of

an

expert

opinion

by

a

preponderance, a failure to respond is of little assistance. Ryan
testified in her deposition that these were items that “don’t
necessarily make sense to me” and stated in her report these items
“may need further examination to clarify.”
Doc. 156-2 at 4.)
statements.

(Doc. 156-4 at 63;

It is difficult to discern the purpose of such

To the extent Ryan claims there are items she does

not understand, such as these, she will be permitted to testify to
that, and why.
Howard’s motion to exclude Ryan is thus granted in part and
denied in part, as noted.
F.

Other Act Evidence

Howard moves to exclude evidence regarding certain other acts
of his, including his prior criminal convictions and arrests, prior
drug use, instances of being shot, prison disciplinary history,
69

and alleged domestic disputes.

(Doc. 165.)

After the filing of

the motion, the parties subsequently agreed to exclude any evidence
of Howard’s prison records and alleged domestic disputes, but they
have been otherwise unable to agree.

(Doc. 246 at 7.)

Federal Rule of Evidence 404(b) prohibits evidence of “any
other crime, wrong, or act . . . to prove a person’s character in
order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). However,
such evidence “may be admissible for another purpose” such as
proving motive, opportunity, intent, or identity.
404(b)(2).
determine

The
the

Fourth

Circuit

admissibility

of

employs
other

a

act

Fed. R. Evid.

four-part
evidence:

test
“(1)

to
The

evidence must be relevant to an issue, such as an element of an
offense . . . (2) The act must be necessary in the sense that it
is probative of an essential claim or an element of the offense.
(3)

The

evidence

must

be

reliable.

And

(4)

the

evidence’s

probative value must not be substantially outweighed by confusion
or unfair prejudice.”
(4th Cir. 1997).

United States v. Queen, 132 F.3d 991, 997

However, other act evidence that is “intrinsic”

to the case is outside the scope of Rule 404(b).

See United States

v. Denton, 944 F.3d 170, 186 (4th Cir. 2019) (“Acts that are
intrinsic to the charged offense . . . do not fall under Rule
404(b)’s limitations on admissible evidence.”) (citation omitted).
“Bad acts are intrinsic to the charged offense when they are
70

inextricably intertwined,” when “both acts are part of a single
criminal episode,” when the bad acts are “essential to the story
of the crime,” or when they provide “context to the charged
offense.”

Id. (citations omitted).

Howard’s
descriptions

motion
of

contains

types

of

both

“other

Defendants may introduce at trial.

specific
acts”

acts

evidence

and
he

general
believes

Because the court cannot rule

on general descriptions, only that evidence actually identified by
Howard will be addressed.
As to arrests, Howard seeks to exclude evidence that he was
arrested the morning after the murders for trespassing in Few
Gardens.27

Defendants represent that Howard was arrested for

trespassing in Few Gardens over 75 times prior to the Washington
murders.

This evidence is admissible under Rule 404(b)(2) , as it

is relevant, probative, and reliable.

At the criminal trial, a

number of witnesses testified that they saw Howard the day of the
Washington murders in Few Gardens arguing with Doris Washington
and leaving the Washingtons’ apartment that night around the time
of the murders.

Howard’s frequent presence in Few Gardens is

relevant to proving identity, including by those trial witnesses
who claimed to recognize him, as well as opportunity, among other

Howard also points to a 2009 arrest for misdemeanor assault sworn out
by a co-worker. (Doc. 166 at 8.) Defendants do not appear to oppose
this.
27

71

things.

It

is

reliable

as

it

is

based

on

law

enforcement

encounters recorded at the time and easily passes the Rule 403
balancing test.
Howard moves to exclude evidence that Darrell Dowdy spoke to
him while he was in the hospital recovering from a gunshot wound.
Howard also seeks to preclude evidence of instances of his being
shot multiple times prior to the Washington murders.

(Doc. 166 at

10.)

[Howard]

Defendants

argue

that

“Dowdy

questioned

in

connection to this case while he was in the hospital recovering
from [gunshot] wounds.

[Howard] had been shot by someone known to

be a part of the New York Boys and Dowdy went to speak with him to
see if he could identify ‘O’.

The testimony at trial was that

during that same conversation Dowdy and Plaintiff also discussed
Doris

and

omitted).)

Nishonda

Washington.”

(Doc.

213

at

8

(citations

To the extent the evidence of prior gunshots occurred

during Dowdy’s investigation, such as the hospital visit, this
evidence is intrinsic to Dowdy’s investigation, which is at issue
in this case.

Otherwise, prior instances of being shot bears

little relevance to the issues for the jury and runs afoul of Rule
403 by suggesting that Howard was involved in violent activity.
Therefore, the motion to preclude instances of being shot is denied
as

to

any

intrinsic

conduct

during

the

course

of

Dowdy’s

investigation; the motion will otherwise be granted subject to
Defendants

demonstrating

why

such
72

evidence

is

relevant

and

otherwise admissible at trial.
Howard moves to exclude evidence that he sold Doris Washington
drugs as well as his prior drug use.
alleged

drug

activity on the

Howard argues that while his

day before

and the

day of the

Washington murders is relevant,28 any other drug related activity
is irrelevant because it does not make the existence of any
consequential fact more or less probable.
Defendants

contend

that

Howard’s

prior

(Doc. 166 at 6.)
drug

use

and

drug

involvement is admissible because it was testified to at his
criminal

trial

and

is

“so

intertwined

with

the

facts

investigation of the criminal case that [it] must come in.”

and
(Doc.

213 at 2.)
While

the

admissibility

of

evidence

in

the

underlying

criminal trial is not a relevant factor, such evidence is intrinsic
to Dowdy’s investigation of the Washington murders and is relevant
as it is probative of why Howard was a suspect because it tends to
demonstrate his presence at Few Gardens, known for being a haven
for drug distribution and use, and to describe the nature of his
relationship with Doris, who was allegedly a drug user and seller,
as well as potential motive.

(Doc. 262 at 111-112 (Howard’s

counsel acknowledging admissibility of prior drug use).)

The

Howard concedes that testimony “he was addicted to drugs and using
drugs with others in Few Gardens on the night of the Washington murders”
is admissible. (Doc. 166 at 1-2.)
28

73

probative value is also not substantially outweighed by unfair
prejudice.
As

for

Howard’s

identified

prior

convictions,

which

are

represented to include breaking and entering, larceny, and cocaine
possession, Defendants argue this evidence is admissible because
Howard testified to it at his criminal trial and because it is
“highly relevant” to Dowdy’s investigation.

(Doc. 213 at 2.)

However, Defendants make this argument generally for all the other
act evidence they seek to admit, and they do not articulate why
Howard’s prior convictions were relevant to Dowdy’s investigation.
Admitting such evidence in this civil trial could risk violating
Rule 404(b)’s prohibition on character evidence, i.e., a jury might
conclude that Howard was guilty of the Washington murders because
he had committed other crimes.

Nor is this evidence likely

admissible to impeach Howard if he testifies in this case.

Federal

Rule of Evidence 609 limits evidence of convictions that are more
than ten years old -- as are all of Howard’s prior convictions -–
for

impeachment

purposes

unless

their

probative

“substantially outweighs” their prejudicial effect.
609(b).

value

Fed. R. Evid.

Defendants have not demonstrated any probative value of

these convictions and, given their age (Howard’s last conviction
was in 1991, 30 years ago), the risk of prejudice is high.

The

motion will therefore be granted subject to Defendants providing

74

an

articulated reason why

any

prior

conviction

sought to

be

introduced was relevant to Dowdy’s investigation at the time.
Next, Howard seeks to preclude any evidence that he had
previously been incarcerated.

Neither side has indicated what the

facts are about any prior incarceration.
Depending on the bases for his claim for damages, evidence of
Howard’s prior incarceration might be relevant.

In his briefing

and at the hearing, Howard relied on Smith v. Baltimore City Police
Dep’t, 840 F.3d 193 (4th Cir. 2016).

In Smith, the Fourth Circuit

reversed a verdict in favor of two police officers in an unlawful
arrest

case

when

the

trial

court

allowed

evidence

of

the

plaintiff’s three prior arrests solely for purposes of damages.
Id. at 196.

The Fourth Circuit did so because there was no record

that the three prior arrests were “remotely similar” to the arrest
at issue in that case; the plaintiff was claiming damages that
flowed only from that specific arrest (and not, for example,
damages because she was more fearful of police generally, to which
the prior arrests might be relevant); and the defense counsel’s
questioning suggested the evidence was sought primarily to show
character and propensity.

Id. at 203.

point, Smith is instructive.

Although not directly on

This is especially so in light of

the Fourth Circuit’s recent admonitions that prior acts are more
likely to be relevant when there is sufficient “factual similarity
and temporal proximity” between the prior acts and the conduct at
75

issue.

United States v. Hall, 858 F.3d 254, 260 (4th Cir. 2017);

see also United States v. McBride, 676 F.3d 385, 397 (4th Cir.
2012) (“The more closely that the prior act is related to the
charged conduct in time, pattern, or state of mind, the greater
the potential relevance of the prior act.”).
Another consideration is the testimony of Howard’s damages
expert, Dr. Artigues.

In her forensic psychiatric evaluation of

Howard, Dr. Artigues concludes that Howard has PTSD, and the “main
traumatic stressors” are the “long wrongful incarceration and the
experiences he had during that incarceration.”
12.)

She

potential

so

concludes

causative

after

factors,

discussing
including

(Doc. 154 -1 at

and excluding

Howard’s

other

“exposure

to

violence that predated his wrongful incarceration” and injuries
sustained from being shot.

(Id. at 12-13.)

It is unclear whether

any prior incarceration, and the extent of it (which the parties
have

not

indicated),

contributed to her analysis.

For now,

Defendants have not demonstrated the relevance of any period of
prior incarceration.
Howard’s

prior

Thus, the court will preclude evidence of

period(s)

of

incarceration

subject

to

a

demonstration by Defendants that, based on the nature of the
evidence at trial, it is relevant to a claim at issue and passes
the Rule 403 balancing test.
As to any unresolved basis for this motion, specific instances
of other act evidence will be considered on a case-by-case basis
76

at trial, subject to the rulings in this order.
G.

Inculpatory Hearsay

Howard moves to exclude “hearsay evidence that purportedly
incriminates [him] in the Washington murders.”

(Doc. 173.)

It is

not clear what evidence Defendants might seek to offer or that
Howard

wants

to

exclude.

Howard

gives

as

an

“example”

a

“crimestoppers” tip contained in Dowdy’s investigative file that
stated Howard and others killed the Washingtons.

(Doc. 174 at 2.)

Defendants oppose the motion, arguing (albeit perfunctorily) that
Dowdy’s investigative file is admissible if the proper foundation
is laid.

(Doc. 212 at 2.)

The motion is denied at this time.
vague.

The motion is far too

Such evidence might be admissible not for the truth of the

matter asserted but for a non-hearsay purpose, e.g., to explain
the investigatory actions that Dowdy took or did not take.

It is

possible that such evidence might also fall within an exception to
Rule 803.29

As the court stated at the hearing, such evidence will

be taken on a case-by-case basis if offered at trial.
H.

Assistant District Attorney Opinions

Howard

moves

to

exclude

certain

opinion

testimony

from

Assistant District Attorneys (“ADAs”) Michael Nifong and Mary
Dowdy’s investigative file could represent his present sense
impression (Rule 803(1)), his then-existing state of mind (Rule 803(3)),
or otherwise be admissible as a public record (Rule 803(8)).
29

77

Winstead, who handled aspects of pre-trial proceedings and, as to
Nifong, Howard’s criminal trial itself in 1995.30

(Doc. 176.)

Specifically, Howard seeks to exclude any testimony from Nifong
and

Winstead

as

to

Howard’s

credibility

or

guilt,

Dowdy’s

credibility, and how the Washington murders occurred.

Citing

Cameron v. City of New York, 598 F.3d 50 (2d Cir. 2010), Howard
argues the admission of such evidence
principles

of

evidence

law

that

would violate “bedrock

prohibit

witnesses

(a)

from

vouching for other witnesses, (b) from testifying in the form of
legal conclusions, and (c) from interpreting evidence that jurors
can equally well analyze on their own.”

See id. at 54 (vacating

jury verdict in part where two ADAs and a police lieutenant were
allowed to give their opinions on defendant police officers’
credibility).

Defendants reply that a “blanket exclusion” of the

ADAs’ testimony is premature and that such evidence might be
relevant and admissible depending on how the case unfolds at trial.
(Doc. 228 at 2.)
As with several other motions, the exact evidence Howard
surmises Defendants may seek to admit, and thus which he seeks to
exclude, is not clear.

Assuming both Howard and Dowdy testify,

Nifong and Winstead would not be able to testify as to either’s
Specifically, Winstead appears to have been assigned to the Washington
murder case shortly before Howard was arrested in November 1992; signed
the indictments issued for his arrest; and left the Durham DA’s office
in spring 1994, before Howard’s trial.
(Doc. 225-1 at 22:1-23:25.)
Nifong was the lead prosecutor at Howard’s 1995 trial.
30

78

credibility.

See Cameron, 598 F.3d at 61 (“[a]s a matter of law,

the credibility of witnesses is exclusively for the determination
by the jury, and witnesses may not opine as to the credibility of
the testimony of other witnesses at the trial.”) (internal citation
omitted). But Nifong and Winstead, like any witness, are permitted
to testify on the basis of their direct, personal experience with
the case.

This could include lay opinions on certain issues if

relevant to the case and if the requirements of Rule 701 of the
Federal Rules of Evidence, which governs lay opinion testimony,
are met.31

For example, in Cameron the Second Circuit suggested

that one of the ADAs could testify on retrial that it was her
decision to prosecute the plaintiff and that the defendants did
not aggressively seek prosecution, since that would be relevant to
whether

defendants

prosecution charge.

had

the

requisite

malice

for

a

malicious

Cameron, 598 F.3d at 67.

Although there is no malicious prosecution claim here, proof
of bad faith remains a contested fact in this case, and Nifong and
Winstead may testify to Dowdy’s actions if probative of whether he
acted with such a state of mind.

Further, given the nature of the

remaining claims against the Defendants, Howard squarely alleges
that they fabricated and suppressed evidence.

Thus, it can fairly

Rule 701 permits opinion testimony by lay witnesses when the opinion
is: “(a) rationally based on the witness’s perception; (b) helpful to
clearly understanding the witness’s testimony or to determining a fact
in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”
31

79

be said that Defendants’ character for truthfulness has been
attacked.

This issue is more fully dealt with below with respect

to another motion in limine filed by Howard
character evidence of the Defendants.

to exclude good

(Doc. 196.)

Accordingly,

as Defendants argued at the hearing on these motions (Doc. 262 at
126-28) and with a proper foundation, Nifong and Winstead could
testify

to

Defendant’s

good

character

for

truthfulness,

as

permitted under Federal Rule of Evidence 608.
Finally, Howard argues that the ADAs lack personal knowle dge
of certain matters (Doc. 180 at 3). Of course, as with any witness,
Nifong and Winstead must have personal knowledge of any matter to
which they seek to testify.

See Fed. R. Evid. 602.

Accordingly, this motion is granted in part and denied in
part, as discussed above.
I.

Defendants’ Character

Howard

moves

for

an

order

“clarifying

that

evidence

of

Defendants’ misconduct in this case does not open the door for
good

character

evidence,

and

precluding

Defendants

from

introducing evidence of their good character because there is no
basis for doing so.”

(Doc. 196.)

As stated at the hearing, this motion will be denied.

Rule

404(a) of the Federal Rules of Evidence generally prohibits the
use of character evidence to show conformity with that trait.
Fed.

R.

Evid.

404(a)

(“Evidence
80

of

a

person’s

character

See
or

character trait is not admissible to prove that on a particular
occasion the person acted in accordance with the character or
trait.”).

Rule 608

prohibits rehabilitation for a witness’s

character for truthfulness unless it has been attacked.

See Fed.

R. Evid. 608(a) (“[E]vidence of truthful character is admissible
only

after the

attacked.”).

witness’s character for truthfulness has been

Relying on the latter, Howard argues that he “will

not contend that Defendants have reputations for dishonesty or
that

their

misconduct

in

this

case

was

dishonest characters.” (Doc. 197 at 1.)

the

result

of

their

As Defendants respond,

though, Howard’s claims allege that Defendants fabricated and
suppressed
disregard

evidence
for

the

and

did so

truth.

The

in

bad

very

faith

nature

or
of

in

reckless

these

claims

constitutes an attack on Defendants’ character for truthfulness.
Indeed, as Defendants point out in prior briefing before the court,
Howard has charged that Dowdy “lied” during his investigation.
(See Doc. 216 at 2.)
Courts

in

the

Fourth

Circuit

have

permitted

an

officer

defendant in a civil rights suit in which the plaintiff has alleged
the officer fabricated

evidence to introduce evidence

officer’s good character for truthfulness.

of the

See Gell v. Town of

Aulander, 2009 WL 166379, at *4 (E.D.N.C. Jan. 22, 2009) (“In a
civil case where a finding for the plaintiff would be tantamount
to a finding that the civil defendant committed a criminal act,
81

defense counsel may present

evidence of the defendant’s good

character or reputation for a pertinent trait as though it was a
criminal action.”)32; Washington v. Buraker, 2006 WL 1049506 at *1
(W.D. Va. April 13, 2006) (denying plaintiff’s motion in limine to
prevent defendant from introducing evidence as to defendant’s good
character or reputation in a wrongful conviction civil case where
plaintiff alleged defendant police officer fabricated evidence
against him).

This accords with the advisory committee notes to

Rule 608 which state, “Opinion or reputation that the witness is
untruthful specifically qualifies as an attack under the rule, and
evidence of misconduct, including conviction of crime, and of
corruption also fall within this category.”

Fed. R. Evid. 608

advisory committee note to the 1972 amendments.
Accordingly,

given

the

nature

of

Howard’s

claims,

which

attack Defendants’ character for truthfulness, Defendants will be
permitted

to

introduce

“evidence

of

truthful

character”

in

response if Howard presents sufficient evidence of misconduct by
Defendants.

See Fed. R. Evid. 608(a).

In Gell, the court was considering a motion to exclude an expert
opinion that the North Carolina SBI had a reputation for “integrity and
ability” in a § 1983 case where the plaintiff alleged the SBI officer
defendant fabricated evidence.
The court deferred ruling on the issue
out of concern that the expert’s opinion would bolster other possible
SBI witnesses whose credibility had not yet been attacked, but the
opinion reveals the court was inclined to allow it as to the actual SBI
defendant. Gell, 2009 WL 166379, at *9.
32

82

J.

Dowdy’s Belief
Prostitution

Howard

moves

to

that

Doris

preclude

Washington

Dowdy’s

Engaged

opinion

that

in

Doris

Washington engaged in prostitution. (Doc. 184.) This motion stems
from testimony Dowdy gave at his 2019 deposition in this case in
which

he

stated

prostitution.33

he

believed

Doris

Washington

engaged

in

Howard argues that there is no admissible evidence

to support this opinion, that Dowdy’s opinion is based on hearsay
and not personal knowledge, and that any probative value would be
outweighed by unfair prejudice.
oppose

the

motion,

arguing

(Doc. 185 at 1-2.)

there

evidence to support this opinion.

is

admissible

Defendants

and

relevant

(Doc. 227.)

As the court noted at the summary judgment stage, there was
some evidence at the very least that Doris Washington allowed her
house to be used for prostitution.

As the court acknowledged in

its order at that time, “Dowdy knew from [Roneka] Jackson’s first
interview that Howard and Doris Washington had argued the evening
of the murders over what was described as Howard’s anger over Doris
allowing Howard’s girlfriend to prostitute herself at Doris's

Specifically, Dowdy testified, “The information I received about Ms.
Washington also indicated that she possibly sold her body for drugs.”
(Doc. 87-2 at 177:3-4.) Later, when questioned extensively by Howard’s
counsel about the source of this information, he stated, “That was
information from the neighborhood, that Doris actually sold her body for
drugs” and “This information would have been from the street. It would
be around the area.” (Id. at 187:14-15, 18-20.) However, it does not
appear that this information was in Dowdy’s investigative report. (Id.
at 188:2-189:7.)
33

83

apartment.”

Howard, 487 F. Supp. 3d at 424.

And there is at least

a factual dispute at this point as to whether Doris Washington
herself

personally

engaged

in

prostitution.

Defendants

cite

Natasha Mayo’s testimony at Howard’s criminal trial, in which she
responds to the prosecutor’s questions as follows:
“Q. Why? Why was [Howard] mad at you for you just being
down there?
A. Because Doris kept a lot of company and it was men in
and out and I would try to -- she would try to talk me
-- you know we would be talking about trying to get
something else from one of the other guys.
Q. I don’t know if the jury quite understands or even
that I quite understand. What do you mean by something
else?
A.

Try to do something to get drugs.

Q.

You mean something sexual?

A.

Yes.

Q.

Would Miss Washington ask you to do that?

A. She didn’t really come out and ask me but she said
it in so many words.”
(Doc. 251-1 at 462:9-24.)

In reply, Howard points to Mayo’s

deposition testimony for the proposition that “Natasha Mayo — who
actually knew Doris — testified that Doris did not engage in
prostitution.”

(Doc. 185 at 2.)

The relevant portion of the

deposition reads:
“Q. And do you remember ever -- do you ever remember Ms.
Washington herself sleeping with men for drugs?
A.

I don’t.

I can’t remember.
84

Q.

That was something she would ask other women to do?

A.

Yeah.

Q.

But she wouldn’t do that herself?

MR. OSTRANDER:
THE WITNESS:

Objection.
No.

BY MS. McCARTHY:
Q. To your knowledge did she ever sleep with men for
drugs?
A.

No.”

(Doc. 185-1 at 22:14-23:1.)

At his deposition, when asked about

prostitution occurring at Doris Washington’s house, Howard himself
stated, “I just knew from being in the projects that every girl
who have a

house in the

prostitution.

projects, they use

their house for

If they don’t sell out of it, they find somebody to

prostitute out of it.”

(Doc. 227-1 at 145:13.)

It is hard to read too much into these snippets of transcript.
It is certainly plausible that Howard’s reference to “every girl”
using her

house for

prostitution

including Doris Washington.

means

literally every girl,

It is also plausible that Mayo’s

testimony at trial about Washington trying “to do something to get
drugs” referred to prostitution.

And her deposition (taken 24

years after the criminal trial) could as easily be read for the
proposition that Doris Washington did not prostitute herself at
all, that she did not prostitute herself for drugs, or that Mayo
85

simply cannot remember.
This
Howard’s

evidence
failure

is

to

certainly

investigate

Washingtons

were

sexually

deaths

that

any

and

relevant,
claim.

assaulted

in

minimally-trained

searched for evidence of sexual

in

particular

Howard

contends

to
the

connection

with

their

detective

would

have

assault at the crime scene.

Dowdy’s belief that Doris Washington engaged in prostitution goes
to the reasonableness of his investigation and his state of mind.
To the extent Howard argues that this evidence is hearsay (Doc.
185 at 2), the court will address any hearsay arguments at trial
depending on the nature of the evidence and the purpose for which
Defendants seek to introduce it.

But it may be admissible for a

non-hearsay purpose, such as to explain Dowdy’s state of mind and
why he took (or failed to take) the actions he did.
The motion will therefore be denied at this time.
K.

Leading Adverse Witnesses

Howard moves for an order permitting examination by leading
questions of certain witnesses he may call during his case-inchief at trial.

(Doc. 191.)

Howard initially sought to ask

leading questions of Defendants Dowdy and Smith; current or former
Durham Police Department employees Scott Pennica, Michele Soucie
Clark, and John Pradka; and former Durham prosecutors Nifong and
Winstead.

The parties have agreed to permit Howard to ask leading

questions of Dowdy, Smith, and Nifong, but were unable to reach an
86

agreement as to Pennica, Clark, Pradka, and Winstead.

(Doc. 246

at 14.)
Pursuant to Federal Rule of Evidence 611(c), the court “should
allow” leading questions “when a party calls a hostile witness, an
adverse party, or a witness identified with an adverse party.”
Fed. R. Evid. 611(c)(2).

Pennica, Clark, Pradka, and Winstead are

not themselves adverse parties, and there has been no showing of
hostility

at

this

time.

Nor can

these

witnesses

construed as “identified with an adverse party.”

fairly

be

As Defendants

correctly point out, neither the City of Durham nor the DPD is a
named Defendant in this action at this point, so their employees
are not presumptively adverse.

(Doc. 230 at 3.)

Further, there

is little evidence that the non-party witnesses are “identified”
with either Dowdy or Smith.

Pradka testified he did not know Dowdy

on a personal level during their time at DPD, that he had “very
little contact with Darryl Dowdy,” and that he “never worked with”
him.

(Doc. 230-1 at 39:20-40:2.)

(Id.)

Pradka retired from DPD in 2002.

Pennica and Clark were not sworn officers with DPD until

1999, well after the investigation and criminal trial.
230-2 at 15:5; 230-3 at 9:16.)

(Docs.

Winstead, a Durham ADA, worked on

the Washington murder cases from about 1992 until 1994, before
Howard’s trial, and at her deposition did not recall meeting Dowdy.
(Doc. 230-4 at 22:17-23:3; 25:11-19.)
Howard relies heavily on Ellis v. City of Chicago, 667 F.2d
87

606 (7th Cir. 1981), for the proposition that, “[i]n a § 1983 case
alleging police misconduct, employees and former employees of the
police department ‘clearly qualif[y] as witnesses identified with
an adverse party for purposes of Rule 611(c).’”
(quoting Ellis, 667 F.2d at 613).)

(Doc. 193 at 2

Ellis found (non-reversible)

error when the trial court refused to permit the plaintiff to ask
leading questions in his direct examination of two police officers
employed by the City of Chicago.
of Chicago was a named defendant.
closely

with

another

individual

relevant stages of the case.

However, in that case the City
Further, the officers worked
named

defendant

through

all

See id. (“These police officers were

employees of defendant City of Chicago at all times during the
litigation and were each present during portions of the incident
which gave rise to this lawsuit.

Moreover, the record indicates

that both officers had worked closely with defendant Frank Kusar
during the period of their employment.”).

The same cannot be said

here.
Accordingly, as stated at the hearing, Howard’s motion will
be denied.

Should any witness prove hostile during examination at

trial, the court will entertain a renewed motion to permit leading
questions.
L.

Destruction of Evidence

Defendants move to preclude any argument that Dowdy destroyed
any notes or investigative materials, including the audio tape of
88

his interview with Angela Southerland, arguing that there is no
evidence to support willful destruction.

(Doc. 167.)

Defendants

argue, “[a]ll of the evidence developed in the case, including the
testimony of Dowdy, has shown that he turned his notes over to DPD
and they were subsequently lost by DPD. Given the age of the
documents, it is more than likely that the boxes that contained
the notes were lost when DPD moved headquarters.”

(Doc. 169 at

5.) Howard responds that there is evidence that Dowdy either never
created certain “missing” notes or he failed to maintain them -specifically

notes

about

his

investigation

into

Nishonda

Washington’s whereabouts -- and that an inference can be drawn
that Dowdy destroyed both the notes and the Southerland tape.
(Doc. 233 at 1.)
This motion will be denied.

There is a factual dispute as to

what happened to certain investigative materials, including notes
Dowdy allegedly took and the audio tape from his interview with
Southerland, and indeed if such materials even exist.

Both sides

are entitled to present their evidence, and the jury, as the
factfinder, will decide the issue.
adverse

inference

instruction

To the extent Howard seeks an

due

to

spoliation

as

to

the

Southerland tape (Doc. 233 at 10), that request is denied as
premature pending the proof presented at trial.
M.

Mary Winstead Opinions

Defendants move to preclude any argument or testimony from
89

Mary Winstead, former Durham ADA, regarding DPD document retention
policies.

(Doc. 170.)

The parties agree that Winstead is not

qualified to testify about DPD document retention policies.
246 at 22.)

(Doc.

Howard argues that she should be permitted to testify

about how DPD officers documented and communicated evidence to
ADAs, and that such testimony is relevant to Howard’s claims.

For

example, Howard seeks to ask Winstead about the “standard practice”
of how DPD officers “communicate their investigation,” including
possible Brady material, to the district attorney’s office.
225 at

4-5.)

knowledge

of

Defendants
DPD

argue

policies,

that Winstead

which

are

also

lacks

(Doc.

personal

irrelevant

to

establishing “whether any constitutional right of [Howard’s] was
violated.”

(Doc. 172 at 1.)

Framed as such, the motion will be denied.

It is clear that

Winstead, a former ADA, cannot testify about DPD policies because
she lacks personal knowledge to do so.

However, she can testify

as to her experience as a prosecutor working with the DPD and to
her personal knowledge and experience of DPD’s standard practices
in interacting with the Durham DA’s office.

Specific issues

regarding the scope of her testimony can be addressed as they arise
at trial.
N.

The Manner of Roneka Jackson’s Death

Defendants move to exclude testimony or argument that the
manner of Roneka Jackson’s killing by the New York Boys is evidence
90

that the New York Boys killed the Washingtons.

(Doc. 178.) Howard

opposes the motion, arguing this evidence, and evidence of other
murders the gang committed, is relevant to show Jackson’s motive
to falsely implicate Howard, her ties to the New York Boys, that
it was more likely the New York Boys committed the Washington
murders, and that Dowdy’s failure to investigate the New York Boys
was in bad faith.

(Doc. 220.)

Defendants’ motion appears to be

limited to evidence

or

argument that the “manner in which [Jackson] was killed by . . .
the ‘New York Boys’ is evidence that the New York Boys likewise
killed the Washingtons.”

(Doc. 179 at 1.)

They do not appear to

be opposing evidence that Jackson had connections to the New York
Boys, that she was working as a confidential informant, or that
she was killed.
Given the more limited scope of this motion, the court’s
primary concern is the relevance of the manner of Jackson’s death.
Jackson was murdered in August 1995, well after Howard’s trial in
March 1995 and the Washington murders in November 1991.

Because

she was alive during Howard’s trial, Defendants could not have
known

the

violent

nature

of

her

death

when

they

allegedly

suppressed or fabricated evidence. Howard argues that the specific
manner of Jackson’s death is relevant for two reasons: 1) that the
New York

Boy’s

reputation

for

violent

murders made

it

“more

probable” they killed the Washingtons, which is “highly probative
91

context independent of any relation to one of Plaintiff’s claims”;
and 2) the murder can “flesh out” other evidence of the gang’s
pattern of violent conduct.

(Doc. 220 at 10-11.)

The first argument runs afoul of Rule 404(b).

As discussed,

Rule 404(b) prohibits evidence of a “crime, wrong, or other a ct”
to prove that person’s conformity to a character trait, although
the evidence may be admissible for another purpose such as proving
motive, intent, or identity.
evidence
probative

is

admissible

of

a

claim

if
or

See Fed. R. Evid. 404(b).
it

is

element),

relevant,
and

necessary

reliable,

and

Such
(i.e.,
if

its

probative value is not substantially outweighed by confusion or
unfair prejudice.

See Queen, 132 F.3d at 997.

Here, the “other

act” -- Jackson’s violent murder -- is too dissimilar to the
Washington murders.

Jackson’s murder occurred four years later,

in a different city (New York City versus Durham), and with a
different method of killing.

Admitting it for the purpose of

proving the New York Boys were violent and to imply that they
killed the Washingtons would tread too closely to the argument
that

“because

this

gang

committed

one

violent

murder,

committed another,” exactly what Rule 404b) guards against.

they
Cf.

Roe v. Howard, 917 F.3d 229, 246 (4th Cir. 2019) (404(b) evidence
is “plainly admissible” when defendant’s treatment of one live-in
housekeeper from Yemen evinced a plan or pattern of behavior in
her treatment of another).
92

The second argument runs afoul of Rule 403.

There is little

probative value to this evidence since Jackson’s murder occurred
after Defendants’ investigation and Howard’s trial, the events
giving rise to this litigation.

This trial is about whether the

Defendants acted improperly at the time of Howard’s trial.

The

fact that Jackson was violently murdered by the New York Boys in
New

York

City

several

months

later

risks

substantial

unfair

prejudice and confusion of the issues.
Accordingly,

this

motion

will

be

granted

to

the

extent

Defendants seek to exclude testimony or argument about the manner
of Roneka Jackson’s death, including that the New York Boys killed
Jackson.
O.

Roneka Jackson’s Status as a Confidential Informant

Defendants move to exclude testimony or argument that Roneka
Jackson was a confidential informant prior to 1994.
Howard opposes the motion.

(Doc. 181.)

(Doc. 232.)

This court’s summary judgment order noted that “Jackson’s
status as a paid informant was Brady material.”
Supp. 3d at 417 (citing cases).

Howard, 487 F.

There is no dispute that Jackson

was officially registered as a confidential informant by 1994.
The issue is

whether

there is any evidence

that

she was

an

informant before then. Such evidence would be relevant to Howard’s
Brady claim, as the longer Jackson served as a paid informant with
DPD, the more likely it may be that Dowdy might have learned that
93

fact and would have had the duty to disclose it before Howard’s
trial.

See id. (“Dowdy does not dispute Jackson’s connections

with DPD . . . and acknowledges that they were never disclosed to
Howard, but he maintains that he never knew about these connections
at the time of Howard’s trial.”).
At the hearing, the parties disputed the nature of Jackson’s
confidential informant status and when the duty of disclosure
required by Brady is triggered.

Specifically, Defendants argued

that the duty to disclose a confidential informant does not arise
unless the informant is officially registered or paid and that the
evidence shows Jackson was not officiality registered until 1994.
Howard argued that there is evidence that Jackson was an informant
for the DPD as early as 1991 and that when Jackson became an
informant is a factual question for the jury.
The court directed the parties to file supplemental briefing
addressing when the duty to disclose a confidential informant
arises under Brady, which has now been filed.

(Docs. 256, 257.)

The parties appear to agree that when an informant receives some
form of payment or benefits for the information she provides, Brady
is triggered.

See Banks v. Dretke, 540 U.S. 668, 691 (2004)

(witness’s “paid informant status” is Brady material).
The court need not resolve the precise moment at which Brady
is triggered and will assume for present purposes that it is when

94

an informant receives payment or benefits for information. 34

There

is a question of fact as to whether Jackson was being paid for
information she gave prior to being officially registered as a
confidential informant in 1994.
Betty Boswell Johnson, a former DPD officer who was one of
Jackson’s “handlers,” testified that Jackson became an informant
in 1994, when she was about 19 years old.
85:18.)

(Doc. 80 -13 at 84:6-

Boswell says that before that point, Jackson “was someone

I knew on the street that I’d see once in a while.”
13.)

(Id. at 84:12-

Specifically, Boswell testified that before Jackson became

an official informant, Jackson had informally provided information
to Boswell about various crimes in the area.

Boswell states that

Jackson “gave me a little information in the past . . . just
passing-by stuff. Nothing -- I mean, no money, no controlled buys.
It was more like just a kid in the neighborhood who may have seen
something and she would tell me.”

(Doc. 88-16 at 185:9-18.)

However, Paul Martin, the former head of DPD’s organized crime
division and Boswell’s supervisor, testified that Jackson began
working as an informant when she was 17 years old, and that when
she died in 1995 at age 21, she had been working with DPD for four

There is some case law suggesting a significant history of providing
information may itself be sufficient. See Monroe v. Angelone, 323 F.3d
286, 315 (4th Cir. 2003) (finding a Brady violation when the state did
not disclose the fact that a key witness had a “history of providing
information to the authorities before she testified against [the
defendant]”).
34

95

years (i.e., since 1991).

(Doc. 87-7 at 71:2-9, 74:21-75:22.)

He

testified that she would have been paid to provide information
during this time.

(Id. at 71:10-12, 75:20-22.)

Martin states he

“wasn’t involved in the actual interplay” but had been “told by
Betty Boswell that [Jackson] was an informant as early as 17.”
(Doc. 87-7 at 75:23-25.)
While a close call, there is a factual dispute over when
Jackson was a paid informant for DPD.

Accordingly, this motion

will be denied.
P.

Jermeck Jones’s Invocation of the Fifth Amendment

The

parties

have

filed

cross-motions

regarding

Jermeck

Jones’s testimony and his invocation of the Fifth Amendment when
questioned about his role in the Washington murders and involvement
in the New York Boys gang.

(Docs. 163, 201.)

Jones was deposed in October 2019 and generally responded
“Plead the Fifth” to each question.

(See Doc. 231-1.)

The parties

“agree the jury should be informed in some manner that Jones
asserted his Fifth Amendment privilege in response to questions
about the Washington murders, [but] they have been unable to agree
about the admissibility of any of Jones’s testimony.”

(Doc. 246

at 5.)
The Fifth Amendment provides that “no person . . . shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V.

“This prohibition allows a person to assert
96

his or her Fifth Amendment privilege and refuse to answer official
questions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future criminal proceedings, but it does not preclude in a civ il
case the admissibility of the assertion of the Fifth Amendment
privilege or an adverse inference.”

Cargill, Inc. v. WDS, Inc.,

2018 WL 1525352, at *11 (W.D.N.C. Mar. 28, 2018) (citations and
quotations

omitted).

Indeed,

“The

Supreme

Court

has

long

recognized that there exists a ‘prevailing rule that the Fifth
Amendment does not forbid adverse inferences against parties to
civil actions when they refuse to testify in response to probative
evidence offered against them.’”

United States v. Mallory, 988

F.3d 730, 740 (4th Cir. 2021) (quoting Baxter v. Palmigiano, 425
U.S. 308, 318 (1976)).
Here, as stated at the hearing, the court will permit Jones
to be called to testify and to invoke his Fifth Amendment right
against self-incrimination.

This is a civil case, “[a]nd a non-

party’s silence in a civil proceeding implicates Fifth Amendment
concerns to an even lesser degree than a party’s invocation of the
privilege.”

Id. (quotations and citation omitted).

The court

will handle each question on a case-by-case basis. Should Howard’s
counsel call Jones to testify, they are admonished not to inject
improper argument into their questions because they know Jones
will invoke his Fifth Amendment privilege, and that all questions
97

are subject to the rules of evidence, particularly Rule 403.

See

United States v. Branch, 537 F.3d 328, 342 (4th Cir. 2008) (in the
context of a criminal trial, noting that “placing [the witness] on
the stand solely to invoke his Fifth Amendment privilege ” could
lead

to

“unfair

prejudice

in

the

form

of

both

unwarranted

speculation by the jury and the [opposing side’s] inability to
cross-examine” the witness).

To the extent the parties come to

an agreement regarding the use of Jones’s deposition testimony in
lieu of calling him to testify, the court will consider that
evidence at trial.
Q.

Eric Shaw’s Testimony

Defendants move to preclude any testimony from Eric Lamont
Shaw.

(Doc. 188.)

court’s

ruling

in

The primary basis for this motion is the
its

summary

judgment

opinion

that

Shaw’s

deposition testimony -- in which he testified that he did not make
certain statements implicating Howard in the Washington murders
that

Dowdy

attributed

to

him

--

could

not

be

considered

in

assessing whether Dowdy’s fabrications may have caused Howard’s
conviction because Shaw never testified at Howard’s criminal trial
nor was his allegedly fabricated statement introduced or otherwise
used.

Howard, 487 F. Supp. 3d at 410-11.

From this, Defendants

argue that Shaw’s testimony cannot be the basis for Howard’s
fabrication claim.

Howard opposes the motion, arguing that Shaw

has relevant and admissible testimony even if he did not testify
98

at Howard’s criminal trial.
Howard is correct.

(Doc. 224.)

Shaw testified that he was a member of

the New York Boys, and at his deposition he spoke to his and
others’ involvement in the gang.

(See Doc. 87-6.)

This includes

testimony that Doris Washington sold drugs for the New York Boys,
that Roneka Jackson was affiliated with the gang, and that Howard
allegedly was not involved with gang.
25:19-26:4.)

(Id. at 13:6-8, 20:3-5,

This evidence is all potentially relevant to the

remaining failure to investigate and Brady claims.
At the hearing, the parties disagreed on whether Shaw could
testify

about

Jermeck

Jones’s

alleged

involvement

in

the

Washington murders, with Defendants arguing there is no evidence
that Shaw had firsthand knowledge of who Jones was.

At his

deposition, Shaw stated he recognized a photograph of Jermeck
Jones, although he did not know his name.

In relevant part, the

deposition transcript reads:
R.
Okay. And you recognize the man in this picture
from your time working with the New York Boys, right?
A.

Yes, ma’am.

Q.

Now, he -- do you recall the name of this man?

A.

No, ma’am.

Q. Okay. I’ll represent to you his name is -- his real
name is Jermeck Jones. Do you know if he went by any
nicknames?

99

A. Uh-huh. They had a nickname. You don’t know people
real names in what we come from, you just go by the
nicknames. I can’t place the nickname.
Q.

Okay.

But, you’re certain you remember this man?

A.

Yes, ma’am.

(Id. at 29:16-30:3.)

Based on this testimony, Defendants have not

demonstrated that Shaw does not know Jermeck Jones.

Defendants’

motion will be denied, and if Shaw testifies to a proper foundation
for knowing Howard, Defendants will be permitted to cross-examine
Shaw on that, and any other issue.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that the pending motions are granted
in part and denied in part as follows:
1.

Defendants’ motion to exclude the pardon of innocence

(Doc. 210) is GRANTED IN PART AND DENIED IN PART.

Plaintiff’s

motion to admit the pardon and a summary of the December 2016 Order
(Doc. 186) is GRANTED IN PART AND DENIED IN PART.

Reference to

the entry of the December 2016 Order is permitted as noted herein,
but there can be no reference during trial to any finding of
“factual innocence” in that order.

Reference to the pardon of

innocence will be permitted, subject to the parties’ submission of
briefing by November 5, 2021 addressing how the pardon should be
characterized, with any proposed limiting instruction.

There

shall be no reference to the pardon’s reliance on the December
100

2016 Order’s finding of “factual innocence.”
2.

Defendants’ motion to exclude Charles Drago’s report and

testimony (Doc. 147) is DENIED.
3.

Defendants’ motion to exclude Marilyn Miller’s report

and testimony (Doc. 149) is GRANTED IN PART as to her first
opinion, DENIED as to her second opinion, and GRANTED as to her
third opinion, as noted herein.
4.

Defendants’ motion to exclude testimony from Dr. Moira

Artigues (Doc. 151) is DENIED AS MOOT.

Defendants’ motion to

exclude testimony from Dr. Artigues regarding Howard’s alleged
“wrongful conviction” or “innocence” (Doc. 153) is DENIED, subject
to the limitations set out in this opinion.
5.

Plaintiff’s motion to exclude Suzanna Ryan’s testimony

(Doc. 155) is GRANTED IN PART as to her opinion of “several days”
as noted and otherwise DENIED.
6.

Plaintiff’s motion to exclude evidence of Howard’s other

acts is GRANTED IN PART and DENIED IN PART to the extent noted
herein, subject to future rulings by the court depending on the
evidence offered at trial.
7.

Plaintiff’s motion to exclude purportedly inculpatory

hearsay evidence (Doc. 173) is DENIED.
8.

Plaintiff’s motion to exclude opinion testimony from the

Durham assistant district attorneys (Doc. 176) is GRANTED IN PART
and DENIED IN PART to the extent noted herein.
101

9.

Plaintiff’s

motion

to

preclude

Defendants

from

introducing evidence of their good character is DENIED to the
extent noted herein.
10.

Plaintiff’s motion to preclude Darryl Dowdy’s opinion

that Doris Washington engaged in prostitution (Doc. 184) is DENIED.
11.

Plaintiff’s motion to permit leading questions (Doc.

191) is DENIED without prejudice.
12.

Defendants’ motion to preclude argument that Defendant

Dowdy destroyed the Southerland tape or his notes (Doc. 167) is
DENIED.
13.

Defendants’ motion to preclude any argument or testimony

from Mary Winstead regarding DPD document retention policies (Doc.
170), to the extent not agreed to by the parties, is DENIED.
14.

Defendants’ motion to exclude testimony or argument that

the manner in which Roneka Jackson was killed by the New York Boys
(Doc. 178) is GRANTED to the extent noted herein.
15.

Defendants’ motion to exclude evidence or argument that

Roneka Jackson was a confidential informant prior to 1994 (Doc.
181) is DENIED.
16.

Plaintiff’s motion to permit evidence of Jermeck Jones’s

invocation
Defendants’

of

the

motion

Fifth
to

Amendment (Doc. 163)

exclude

evidence

or

is

GRANTED

argument

and

regarding

Jermeck Jones’s assertion of his Fifth Amendment privilege (Doc.
201) is DENIED to the extent noted herein.
102

17.

Defendants motion to preclude any testimony from Eric

Lamont Shaw (Doc. 188) is DENIED.

/s/
Thomas D. Schroeder
United States District Judge
November 2, 2021

103