News-Record.com

Shades of the Duke lacrosse case:

In a strongly written opinion issued today, the N.C. Court of Appeals overturns the conviction of a Durham man because of willful, negligent and prejudical errors by the Durham District Attorney's Office.

Frankie Delano Washington isn't a rich, white college student but a 47-year-old black man and former crack user with a long history of trouble with the law. He was convicted in February 2007 of first-degree burglary, two counts of second-degree kidnapping, robbery with a dangerous weapon, attempted robbery with a dangerous weapon, assault and battery and attempted first-degree sex offense and sentenced to up to 74 years in prison.

And chances are he wasn't guilty.

Or so the opinion written by Judge Doug McCullough and joined by Judges John Tyson and Donna Stroud clearly implies.

Don't call these three liberal judges. McCullough is a former federal prosecutor. Tyson's probably the court's most conservative judge.

The mishandling of this case, though, should offend anyone who cares about justice. As a former prosecutor, McCullough might have particular reason to be offended.

The heart of this case is denial of a speedy trial. It took almost five years from the time of Washington's arrest until his trial. But the record also shows prosecutors ignored evidence that someone else committed the crimes that Washington was charged with.

The timeframe happens to encompass the entire tenure of deposed Durham DA Mike Nifong.

Which means that not only Reade Seligmann, Collin Finnerty and David Evans, but also Frankie Delano Washington, was Nifonged. In fact, Washington was really Nifonged. And until now, practically no one had heard of it.

The crime in question, a home invasion, took place in the early morning of May 30, 2002, in the Trinity Park neighborhood of Durham. The victims described the assailant as a young black man with light complexion, taller than 5-7, whose face was covered by a bandana.

After police were called, a search of the area began. Washington, who apparently had been smoking crack nearby, was picked up. Apart from being black, he didn't closely fit the description, but police brought two of the victims to an outdoor location, while it was still dark, and from 20 feet away asked them if Washington was the man who assaulted them. They said yes.

Later, police found articles of clothing apparently worn by the attacker and items taken during the robbery. It would take more than three years, despite several court orders urging it to act, before the DA's office would submit evidence to the SBI lab for analysis. When that work finally was done, it showed no link to Washington.

At trial, he was convicted on the basis of eyewitness identification and circumstantial evidence -- despite faulty memories of witnesses.

The appeals court found that Washington was denied his right to a speedy trial because of "repeated neglect and underutilization of court resources on the part of the Durham County District Attorney's Office." That was sufficient grounds to vacate his convictions.

But there was more. In the same Trinity Park neighborhood, in the months before and after Washington's arrest, a series of home invasions was taking place. They were similar in nature to the crime for which Washington was arrested. Eventually, a man named Lawrence Hawes was arrested and convicted for these crimes. Yet, Durham authorities never attempted to match the evidence from Washington's case -- which didn't implicate him, remember -- to Hawes.

The appeals court did not say it believes Hawes committed the crimes for which Washington was convicted. Instead, it said "we take judicial notice" of the circumstances. In courtspeak, that is saying police and prosecutors should have taken notice, too, and the fact that they didn't could have allowed an injustice to occur.

The Duke defendants were never tried because skillful defense attorneys destroyed Nifong's case before he could present it in court. They were lucky their parents could hire the best lawyers.

Washington was a nobody whose case never drew much media attention, if any. By the time he went to trial, the details had nearly faded from memory. When it comes to eyewitness identification, even fresh memories are often unreliable. Physical evidence needed to support conviction was lacking.

Fortunately, the Court of Appeals gave this case an honest examination and found it badly wanting. Denial of a speedy trial is not a technicality but a violation of constitutional rights, and in this instance for inexcusable reasons. The state did not meet its responsibilities, and it probably did not convict the right man.