State prosecutors are fighting questions about whether Durham District Attorney Tracey Cline is in a romantic relationship with a police officer whose decisions in a murder case are under scrutiny.
In preparing a defense, attorneys for Robert L. Lyons of Durham are focused on the actions of Antonio Gill, a Durham police department investigator who worked on the case. But they have not said why they are trying to determine whether there is a relationship between Gill and Durham's top prosecutor.
Lyons is accused of first-degree murder after a knife fight last year at his home left a man dead.
Court documents indicate that, three days after the fight, Gill approved releasing items seized as evidence - a pickup truck and keys - to the family of Tony Burns, the man who was killed in the fight. Burns' sister also was injured in the fight and Lyons faces charges for assaulting her as well.
Lyons' attorneys say in court papers that the key ring held crucial evidence: A knife and razor on it that were "used to almost kill" Lyons, who has denied the charges and says he acted in self-defense.
A police memo indicates the keys and "other items" attached to the key ring had what is believed to be blood on them. But the blood was wiped away as part of returning the keys, according to Lyons' attorney, Lisa A. Williams of Durham.
Help for defense cited
Williams said the evidence, known as exculpatory evidence, could have been helpful to Lyons.
"The state has an obligation to preserve any evidence that is exculpatory for further testing," she said.
State law says evidence should be kept for use at any trial. An owner of seized evidence may apply to recover items sooner and, under the law, the district attorney "may release any property seized ... if he determines that such property is no longer useful or necessary as evidence in a criminal trial ..."
With whom Gill discussed the issue is not clear from the documents.
Documents also indicate that Lyons was initially listed in police reports as the victim in the crime.
About a week after the fight, Gill and a sergeant caused police reports to change to list Lyons as the suspect. About a week after the paperwork change, a grand jury indicted Lyons on the murder charge.
A hearing in the case is scheduled for Thursday in Durham.
Williams wrote to Cline in early April, asking her to provide information about her relationship with Gill, according to court papers.
Cline wrote back that her office wouldn't handle such questions, and that a special prosecutor from the Attorney General's Office, Jim Coman, would address it.
In a court filing, Coman wrote that the state would not answer any questions about a relationship.
"The reason that the State will not respond to the following matters is because the state believes that these matters are not relevant," Coman wrote. "We will not respond to the personal relationship if any that exists ..."
Coman said there is no evidence to show that Cline and Gill ever discussed the case with each other.
No cellphone records
Coman wrote that the state would not provide any cellphone records for Cline and Gill. And the state will not provide any information regarding any accommodations "that were or were not put in place" at the police department to deal with a possible relationship, Coman wrote.
Coman wrote that the state also will not reveal whether the chain of command in the Durham police department knew about the relationship if there was one "because we contend that there is nothing inappropriate regarding a relationship assuming one even exists."
A police spokeswoman, Kammie Michael, said the department does not have rules in place that address relationships involving police and prosecutors.
Gill declined an interview request.
In an email message, Cline said that she had given the Attorney General's Office and the State Bar - which oversees lawyers - details of the allegations and the relationships of the parties.
Cline, who has been the district attorney in Durham since 2009, said both agencies agreed there are no ethics or conflict-of-interest violations. Still, Cline said, to be cautious, she will not personally be involved in the case..
Cline and Gill are both single.
Documents obtained by The News & Observer indicate that Cline contacted the State Bar in early May after questions were raised in court documents.
Cline wrote to Tom Lunsford, executive director of the State Bar, a one-sentence question: "Is it unethical for a prosecutor to be in a relationship with a law enforcement officer?"
That led to a phone call between Cline and Suzanne Lever, a Bar lawyer. Lever's notes from the conversation say that Cline "has been dating a police officer for 15 years."
"I told her I did not think this was against the ethics rules, but that it might require her to refrain from working on cases where he is a witness and/or disclosure," Lever wrote.
State Bar's advice
Alice Mine, who oversees ethics questions at the State Bar, said the rules for lawyers do not require that Cline disclose a relationship to a defendant or his lawyers in our adversarial justice system. Cline was advised to disclose it to the elected DA if she were an assistant prosecutor, Mine said, so that she would not be assigned to cases involving the officer.
Mine said Cline has been advised that, as DA, it would be best if she did not have direct involvement in cases involving any officer in which she is involved in a personal relationship. According to Mine, Cline said she has followed the Bar's advice.
Cline told the Bar that she had sought advice several years ago, and that she had received a similar view while she was an assistant prosecutor - that it would be prudent to steer clear of cases involving the officer, but it was not otherwise a conflict. Mine said the Bar has not found a record of that earlier contact, but did not doubt that it occurred.
Mine said "The only potential problem is that the credibility of the police officer might be challenged during cross-examination because of the romantic relationship."
Records show that Gill worked on cases almost exclusively involving reports of deaths, suicides and homicides from early 2007 to the end of 2010. Gill is now assigned to the Youth Unit, and has been handling runaways, larcenies, assaults and other such crimes this year, records show.
