68 F.4th 934
4th Cir.2023Background:
- In 1991 two women (Doris and Nishonda Washington) were murdered in Durham; Durham Police lead investigator Corporal Darrell Dowdy focused the investigation on Darryl Howard and he was convicted in 1995.
- Post-conviction DNA testing (retested 2010–2011) excluded Howard and produced a CODIS match to Jermeck Jones (a New York Boys gang member); Howard’s conviction was vacated and charges dismissed in 2016 and he later received a Pardon of Innocence.
- In 2011 DPD officers Scott Pennica and Michele Soucie interviewed Jones, recorded incriminating statements, but did not disclose the recording or reports to the prosecutor or to Howard’s counsel despite a 2011 court order directing disclosure of information about the CODIS match.
- Howard sued the City, Dowdy, Pennica, and Soucie under § 1983 and related state claims; the district court dismissed Monell and the claims against Pennica and Soucie on summary judgment, but submitted three claims against Dowdy to a jury.
- A jury found Dowdy liable for fabricating evidence and suppressing informant status and awarded Howard $6 million; the Fourth Circuit affirmed the verdict as to Dowdy and the City, reversed summary judgment for Pennica and Soucie, and remanded for further proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pennica and Soucie violated due process by intentionally suppressing post-conviction Brady evidence (Jones interview) | Pennica and Soucie knowingly withheld the recorded interview and notes despite the 2011 court order and thus acted in bad faith | Officers say they were unaware of the 2011 order and had innocent explanations for nondisclosure | Reversed summary judgment: genuine dispute about whether officers knew of the order and acted in bad faith — remanded for further proceedings |
| Whether City of Durham is liable under Monell for a policy/custom of withholding confidential-informant Brady material | DPD practiced secrecy about informant identities (Organized Crime Division policy) that caused nondisclosure at Howard’s trial | City says no final policymaker adopted any express City policy and one case does not show a persistent widespread custom | Affirmed district court: no municipal liability — plaintiff failed to show an official City policy or widespread custom attributable to policymakers |
| Whether admission of Howard’s prior drug activity, trespass arrests, relationships, and shootings warrant a new (damages-only) trial | Howard argues admission of these bad-act/character items and defense argument reduced his damages and was improper under Rule 404(b) | Dowdy contends much of this evidence was intrinsic to the underlying murder investigation and relevant to credibility and damages; limiting instructions were given | Affirmed: district court did not abuse discretion — evidence was largely intrinsic or relevant to damages, and objection was sustained at trial (no preserved request for curative remedies) |
| Dowdy cross-appeal: admissibility of Governor’s Pardon and refusal to strike a juror for cause | Dowdy argued the pardon was irrelevant/prejudicial and juror could not be impartial | Court permitted limited evidence of the pardon with instruction; detailed voir dire supported juror seating | Affirmed: pardon evidence admissible for case history; no manifest abuse in denying for-cause challenge to juror |
Key Cases Cited
- Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978) (municipal liability requires an official policy or custom attributable to policymakers)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial obligation to disclose exculpatory evidence)
- Dist. Att’y’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009) (state-created post-conviction evidence procedures can create a liberty interest enforceable under Due Process)
- Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir. 1964) (extending Brady-related duties to police officers)
- Jean v. Collins, 221 F.3d 656 (4th Cir. 2000) (bad-faith standard for withholding evidence; must negate innocuous explanation)
- Burgess v. Goldstein, 997 F.3d 541 (4th Cir. 2021) (elements for suppression-based due-process claim)
- Gilliam v. Allen, 62 F.4th 829 (4th Cir. 2023) (admission of gubernatorial pardons as relevant to procedural history and innocence findings)
- United States v. Denton, 944 F.3d 170 (4th Cir. 2019) (intrinsic bad-act evidence need not be excluded by Rule 404(b))
- Lytle v. Doyle, 326 F.3d 463 (4th Cir. 2003) (who qualifies as final policymaker for Monell purposes)
- Pembaur v. Cincinnati, 475 U.S. 469 (1986) (municipal liability attaches only for acts officially sanctioned by municipality)