DURHAM (WTVD) -- Justices at the North Carolina Supreme Court are considering if Darryl Howard should be released while the state Appeals Court is considering if he should be granted a new trial at all.
Howard, 52, wants to be freed on bail before a possible retrial 20 years after a double murder conviction marked by misconduct from Durham police and the prosecutor disbarred over the Duke lacrosse case.
Superior Court Judge Orlando Hudson ruled last year that there was no physical evidence connecting Howard to the 1991 murders of a woman and her 13-year-old daughter - and overturned the conviction.
Howard was sentenced to 80 years in prison for allegedly strangling 29-year-old Doris Washington and her daughter, 13-year-old Nishonda, then burning their apartment. Both showed evidence of rape, but at Howard's trial, former Durham prosecutor Mike Nifong and a police detective told jurors there was no evidence of sexual assault.
New DNA tests implicate another suspect.
But before the Appeals Court Wednesday, a Durham assistant district attorney told judges that the prosecution should have been allowed to present evidence to Hudson before the conviction was overturned. She also said there was still other strong evidence against Howard, and he should not be granted a new trial.
"The defendant was overheard telling his brother ... that he had to set the apartment on fire to hide the evidence. He was also overheard telling his brother and another man that he had to get rid of Doris," said Mary Carla Babb.
But a defense attorney told the judges that essential testimony in the case has been recanted along with the new DNA evidence that points to another killer.
"We have DNA evidence left shortly before the victim dies from a beating that connects someone else to her murder," said Jim Cooney.
One of the justices noted that all the issues brought up by the state could also be brought up by the state at a retrial, but it's not clear if that is a forecast of the judge's decision - and even if it is, the two other judges still hold the majority vote.
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Two courts considering 20-year-old Darryl Howard Durham murder case