DURHAM -- A judge on Tuesday dismissed a murder charge against a man accused last year of killing a woman and then trying to dispose of her bones, saying the state enabled the destruction of crucial evidence and violated his rights so severely that he cannot get a fair trial.
Durham County Superior Court Judge Orlando Hudson, the senior judge in the county, dropped the charge against Michael C. Dorman II at the conclusion of a two-day hearing and said it was clear the state prevented testing by Dorman's defense.
Records and testimony in the hearing showed that a Durham police officer gave the final approval before the remains of Lakeia Boxley, a mother who had been missing since 2008, were released last year to the woman's sister, who had the remains cremated.
But the release was made five days after Dorman's lawyer filed paperwork seeking to preserve the evidence in the case. The lawyer, public defender Lawrence Campbell, argued to Hudson on Tuesday that the chain of events was more than suspicious, at one point singling out Durham District Attorney Tracey Cline for not using care in the prosecution.
"Ms. Cline is the chief law enforcement officer for this county," Campbell said. "The remains of that person deserve whatever final resting place they could have. But Mr. Dorman deserved the opportunity to have his rights protected by the chief law enforcement officer of this county and by this court."
In making his decision, Hudson said: "This court does find that the state and/or its agents have destroyed the evidence."
Cline said she would appeal his ruling, but declined comment otherwise.
Dorman, 33, of Mebane, dabbed at his eyes as Hudson voiced his decision. He had not shown much emotion during the hearing and did not appear to have family members present. At times, he patted a photo of a dog kept in his shirt pocket.
Dorman was not immediately set free, and he could not be reached for comment. Hudson ordered Dorman held and evaluated to see whether he is a danger to others or himself before he can be released.
Doctors and the courts have determined that Dorman was competent to stand trial, based on mental health evaluations.
The decision is the second murder charge dropped in the past nine months because of questions about how a prosecution in Durham was handled. Derrick Allen of Durham was set free late last year after Hudson ruled that prosecutors, including Cline, withheld evidence from him while charging him in the death of a 2-year-old girl who was in his care.
The decision Tuesday also underscores a legal principle written into the U.S. Constitution that says defendants have rights to "due process" in the courts. It has been interpreted in criminal cases over the years to guarantee that defendants receive a fair trial and that proper procedures are followed in prosecutions.
Hudson specifically found Tuesday what is known as a Brady violation, which means the prosecution suppressed evidence favorable to Dorman that would have a bearing on the outcome of his case.
"The bottom line on the case is that Mr. Dorman cannot examine the evidence," Hudson said in an interview. "That's the bottom line."
Hudson said the responsibility is shared by Cline, the police and the Office of the Chief Medical Examiner in Chapel Hill. He will file a written order with detailed findings later.
"You'll see a very interesting order," Hudson said.
The two-day hearing exposed a sequence of events last summer that allowed the sister of Boxley to receive the bones and then cremate them. It featured contested points of law, and produced a surprise email message that is central to the outcome.
The concealed bones
Boxley was the youngest of three sisters and had lived in Durham, where police believe the killing took place. Her sister testified Tuesday that Boxley had had interactions in the past with police, including on shoplifting charges, and that she was mentally ill. The sister said she and her mother had been concerned in 2008 when Boxley hadn't been heard from for some time. They filed a missing person report.
The sister, Latifah White, who lives in North Charleston, S.C., broke down in tears several times while testifying Tuesday. She could not be reached for comment after the decision.
The case started in July last year when an informant told police that a friend of his wanted help in disposing of a bag containing a partial skeleton.
The friend took them from Dorman, police say, as an investigator looked on. The friend told police that Dorman claimed he shot the woman with a shotgun, according to police records.
Dorman was at first charged with concealing bones.
On Sept. 7 last year, the charge was upgraded to murder.
By then, testimony showed, Boxley's sister had been peppering police and the District Attorney's Office to receive the remains. White said she made more than 100 calls to various authorities in July, August and September last year.
She begged for the remains, she testified, but had not received them because the investigation was ongoing.
Records showed that the medical examiner's office in Chapel Hill had identified the remains as Boxley and completed its work by Aug. 5.
Family gets remains
The chief medical examiner for the state, Deborah Radisch, testified Tuesday that a state law says her office shall return remains to family members upon the completion of its work - and she said that was done in this case as required.
But Dorman's lawyer disagreed, saying the remains were not returned in August when records show the medical examiner's work was complete.
Instead, the medical examiner's office took its direction from the police, he said.
The week after the murder indictment, on Sept. 16, Dorman's lawyer filed paperwork that sought to preserve the evidence in the case. Cline has argued it was a "generic" filing and did not catch her attention because it did not specifically mention the bones.
Three days later, an official in the medical examiner's office wrote that the remains could now be released based on approval from the lead detective on the case.
Two days later, records show, the remains were released to a funeral home in Durham and cremated at the request Boxley's sister.
The surprise email
An important development in the hearing was the disclosure of an email message that made clear that a police detective's approval had triggered the release of the remains.
The message only surfaced under questioning by Dorman's lawyer, though the medical examiner's office had been issued a subpoena to produce all email messages about the case in June. Testimony also showed that Cline had reviewed the file that held the email message.
Hudson said his written order will address those circumstances, but he declined to elaborate.
Cline had argued that the remedy for not having the bones available to the defense is not to dismiss the charge.
She said a portion of the skull was still available for DNA testing to determine identity and for examination to evaluate cause of death. X-rays and other materials are also available, Cline said.
But Dorman's lawyer contested the state's conclusion about the manner of death.
An autopsy had indicated the death was by homicide, but the state medical examiner, Radisch, acknowledged Tuesday that her office cannot conclusively determine the cause of death. The finding, she said, was based on the police theory of the case.
Cline has said that the portion of skull still available is consistent with a shotgun wound. Boxley's family was not told they did not receive all of the remains.
Tearful testimony
Cline spent much of the hearing establishing that no one from the state had anything to do with the choice of a cremation.
White testified that she alone chose to have the remains cremated - that it was not at the suggestion or direction of the police or prosecutors.
"I want Lakeia to be buried with me," the older sister testified. "I wanted to cremate her so I would never leave her."
Her testimony was interrupted by tears and, at one moment, an apparent exchange between the sister and the defendant, who was seated at the defense table.
White had been testifying while wearing sunglasses, an accommodation allowed because Cline said she was legally blind. But in the midst of her testimony, the sister told the judge she was removing her glasses.
"Dorman is looking at me," she said. She removed the glasses and stared at Dorman from the witness box.
Campbell said all the testimony over how the bones came to be cremated was irrelevant to the question of whether the charge should be dismissed. The state caused the bones to be released, and now they are not available, he argued. There is no other choice to be fair to Dorman than to dismiss the charge, he argued.
"The Durham police are the ones who caused it to be released," Campbell said. "The Durham police department is a prosecutorial arm of the Durham County District Attorney's office. And that was the agency that was responsible for allowing the destruction of the evidence."
