A veteran assistant district attorney in Durham is no longer on the job - days after handling a hearing during which his boss, Durham District Attorney Tracey Cline, contradicted herself on the stand.
Mitchell Garrell, who was a top prosecutor of murders and violent crimes in Durham, is no longer working in the DA's office, Cline confirmed in a brief interview.
Cline informed Garrell last week that his appointment as part of her staff would not be renewed in January when her new four-year term as district attorney begins. Cline declined to explain her decision. Garrell has not been at work since.
"He will not be reappointed," Cline said. "That's all I'm going to say."
Garrell is an at-will employee and can be dismissed without a stated reason.
Garrell, who did not return numerous messages seeking comment during the past week, was a prosecutor in the Durham DA's office since May 1995, records show.
By this fall, he was one of two on the staff who were assigned to handle the most difficult cases.
Garrell's departure comes immediately after his involvement in a case that saw his boss accused of misconduct and led a judge to throw out felony charges.
Garrell's conduct has not been at issue in that case against Derrick Allen, a Durham man accused in 1998 of murder, sexual assault and child abuse in connection with the death of his girlfriend's 2-year-old daughter.
Allen pleaded guilty in 1999 to lesser charges to avoid the death penalty but then waged a one-man fight over several years to undo his plea.
Garrell was assigned to re-prosecute Allen.
In September, Allen was freed without bail to await a new trial.
Then, on Dec. 9, Cline was called to testify in a hearing in which Allen sought to have all the charges against him tossed out.
Allen's claim: Durham prosecutors and the State Bureau of Investigation had withheld crucial information from him for years in violation of his constitutional rights.
Allen's lawyer documented that prosecutors and the SBI had not let Allen know that blood test results of important evidence were negative, while a lab analyst had characterized the tests in a report as positive. Before reaching a plea, he also hadn't received key statements made by witnesses, polygraph test results for a witness against him, medical records for the child and other important documents.
The next day, a judge dismissed the charges.
Cline's office immediately said it would appeal.
The contradiction
On the stand in the hearing, Cline was asked whether she recalled working on the case from the beginning.
Cline, who had been a prosecutor of sexual and violent crimes before becoming DA in 2008, distanced herself from it. Cline suggested that another prosecutor, Freda Black, did it all.
"I think Ms. Black, and I think Ms. Black alone, prosecuted that case," Cline testified.
Cline repeated her view when asked whether she was sure about that.
The case files indicate that Black played a much larger role than Cline in the case. Black interacted with the lead police investigator, for example, and presented the final plea deal in court.
But then Cline was confronted with a document from March 1999 in which a judge ordered that prosecutors provide information from their files to Allen for his defense. Cline had signed it.
Allen's lawyer, Lisa A. Williams of Durham, also presented Cline with a series of other documents from the case which had the initials "T.C." at the top of them or "F.B." for Freda Black.
They were notes from a court hearing which dealt with ensuring that Allen received information from prosecutors' files.
"Are your initials T.C.?" Williams asked Cline.
"Yes," Cline answered.
Williams wanted to know why those documents, showing the initials of who handled the motions, hadn't been provided to Allen earlier as part of the required exchange of information between the sides, known as discovery.
"This appears to me to be notes from our files," Cline said. "You would have to ask Mr. Garrell."
Cline paused. She then said she might not have turned it over because they were notes from a hearing and not part of the actual investigation of Allen.
"I don't know whether I would have provided my work product or the work product of another [assistant district attorney]," Cline said. "And I don't know if this is considered work product. I'll have to talk to Mr. Garrell."
Garrell, who had taken on the Allen case only recently, had said in interviews that he took accusations of prosecutorial misconduct seriously and wanted to provide all information he had to Allen's legal team.
Garrell allowed Allen's lawyer access to everything, he said. State law now requires what's known as "open-file discovery," meaning everything in the prosecutor, law enforcement and other agent files should be provided to defendants.
Garrell provided one set of documents to Allen in July this year, for example, and labeled it "additional discovery." The documents clearly showed that crucial information from the late 1990s phase of the case had not been provided to Allen's lawyers.
A judge's order
In October, a judge ordered prosecutors to give all documents in the state's files to Allen or else seek an exception.
Still, Cline testified she wasn't certain all things had to be provided, including the documents with her initials on them.
"I don't have any specific reason as to why the notes and the information contained on there ... whether that would be discoverable," Cline testified.
At another point, Cline testified that she had discussed the Allen case with the lab director at the SBI. But there are no notes documenting that conversation, which is generally standard. Cline said there weren't any because she didn't think the lab director was a law enforcement officer, and she thought only talks with officers must be documented.
Williams, who has handled numerous defense cases in Durham, said Garrell was not at fault in the Allen case and expressed surprise that he is off the staff.
"He's honest, he's fair and he's thorough, and we fight," she said. "He does disclose all the information he is required, even if it's damaging to his case, which is the gold standard. That's how it should be."
Cline was re-elected to the DA's position in November without opposition. She's been a prosecutor since 1994.
Cline first won the DA's job in 2008 in the wake of former DA Mike Nifong's departure over misconduct in overseeing the Duke lacrosse case.
Garrell had also sought the DA's position in 2008, finishing last in a four-way primary.
Garrell's departure adds to an exodus of veteran prosecutors at the Durham DA's office. Others who have left Cline's office this year and had handled violent crimes are Stormy Ellis, Jan Paul, David Saacks and Phyllis Turner.
