Cline vs. the record: Her words examined

September 23, 2011 

At a forum last week, Durham District Attorney Tracey Cline challenged The N&O series, “Twisted Truth,” which in early September reported on several cases in which her work is under scrutiny because of misstatements or evidence withheld from defendants. Here’s a look at some of what she said, and what the record shows:

The facts weren’t printed?

Frankie Washington
The background: Three years ago, the state Court of Appeals tossed out a conviction against a Durham man, Frankie Washington, and cited “repeated neglect” in the prosecution by Cline, then an assistant district attorney. Cline had not ensured that forensic evidence was submitted to the state crime lab. At Washington’s trial – after the record was clear that the evidence had not been submitted for years – Cline still testified that a backlog at the crime lab was the problem. The case was dismissed because of the delays caused by Cline, not the crime lab.

Cline, last week: Cline again acknowledged that she erred by not making certain that the evidence had been submitted to the lab: “Ten years ago, I made a mistake.” But she said another reason for delay in the case was that a female victim couldn’t testify. “After she was sexually assaulted, she had a complete mental breakdown. And 10 years to this day, which is not in the story, she still is mentally disabled. That information was never put in the record. Had the Court of Appeals heard that, would it have made a difference? I don’t know. But that’s what I told The News & Observer. But these facts were not printed. … Was that too long to wait for a person to become able to testify? Should that information have come in the record? Yes.”

The record shows: Washington was convicted of attempted sexual assault on testimony that the attacker reached into her pants from behind. The case was delayed for several years through 2005; Cline’s testimony, as cited by the Court of Appeals, took place in February 2007, which is 4.5 years ago. The trial transcript includes information about the mental status of the woman involved. Cline’s characterization of the cause-and-effect of the crime was disputed at the time. The N&O reported in its series: “(Cline) said she also has a regret: The woman in the case was so traumatized that for a long time she could not testify, Cline said. It was another reason for delays in the trial. Cline said she wishes now that she had done more to bring that to the court’s attention.”

Dorman case: No state wrongdoing?

Michael Dorman II
The background: In August, Superior Court Judge Orlando Hudson dismissed a murder charge against Michael Dorman II, who was accused of killing a woman and then trying to dispose of her skeletal remains. The dismissal, now on hold while the state Court of Appeals reviews it, was made orally from the bench. The reason: The remains had been released and cremated before the defendant could conduct any testing, which was a violation of Dorman’s rights, according to the judge. A written dismissal order has not yet been filed.

Cline, last week: “Dorman was dismissed, not because of the state’s wrongdoing. There is a statute that gives the medical examiner exclusive jurisdiction over releasing the remains. The state can’t tell them when to do it. The police can’t tell them.”

The record shows: Cline made the same argument to the judge before he ruled in favor of the defendant and against the state. An email message and other information surfaced in a two-day hearing that showed the remains were not released until the Durham Police Department gave its OK. The email was in a file reviewed by Cline, according to testimony, but it was not provided to the defendant until his lawyer discovered the file in the middle of the hearing. In making his decision, the judge said: “This court does find that the state and/or its agents have destroyed the evidence.” Hudson specifically found 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. At the time of the dismissal, Hudson told The N&O that the responsibility is shared by Cline, the police and the Office of the Chief Medical Examiner in Chapel Hill.

A misleading statement?

The background: One article in the series reported on efforts by a Durham man, David Yearwood, to have his case re-opened. Yearwood was accused in a rape of a 12-year-old girl. He did not testify at his trial, did not present any evidence and was convicted. He later alleged he had received ineffective counsel. That was denied.

Cline, last week: Cline said that she has been in contact with Yearwood’s lawyer, “who went to Judge Hudson and obtained an order one week before this article was published.” “There are no – no – court documents filed at all in that case questioning my conduct. … There is no document filed anywhere that says I did anything wrong,” Cline said.

The record shows: In reporting on the case, The N&O cited court orders granted in late July – more than a month prior to publication – by Hudson that have given Yearwood’s lawyer new access to files kept by the state. The report noted that a motion was filed under seal and obtained by The N&O. The newspaper reported that, in the motion, the lawyer for Yearwood, Heather Rattelade, wrote that Cline repeatedly made “misleading statements in open court” about the forensic evidence in the case.

Part of a motion filed by David Yearwood’s lawyer:

What the DNA showed

The background: A big focus of the Yearwood case was on DNA testing, which Cline has described as being inconclusive in regard to Yearwood. At the trial, there was no testimony about any of the DNA or forensics evidence from either side in the case. But the record of pretrial hearings reflects that Cline decided within three days of receiving a lab report on the DNA evidence that she would not offer any plea deal in the case and would seek the maximum amount of time for Yearwood.

Cline, last week: Cline cited testimony by Yearwood’s trial lawyer, Lawrence Campbell, at a hearing in 2004 in which he was accused of being ineffective. In the hearing, Campbell testified that his DNA expert would not say much different than what the state’s expert would have said. Cline said it should have been reported that the defense expert’s “conclusion was the same as mine.” Cline also said she gave The N&O the names of the SBI’s expert on DNA, Mike Budzynski, as well as a legal adviser at the SBI, and the agent who did the work, Brenda Bissette.

The record shows: The N&O reported that the DNA testing is clear about Yearwood: No fluids, hair or other forensic evidence tied him to the crime. The N&O obtained a list of questions about the DNA provided by the defense expert to Campbell on the eve of trial to prepare him for questioning the SBI’s DNA expert. The questions reflect that there was no DNA other than the girl’s in the evidence and that an affirmative conclusion from the testing is “that there is no DNA evidence implicating Mr. Yearwood.” The N&O directly quoted Budzynski in its reporting and reported that Bissette, who was removed from casework through retirement after questions about how she handled an unrelated case, declined to comment. The N&O also wrote that a sentence in the report saying “no conclusion” could be reached about the donor of presumed saliva found on the girl gave Cline an opening. The article also reported that the SBI said the report would not be written today the way it was at the time.

Defense expert’s memo on DNA:

A therapist’s knowledge

The background: The N&O reported that a therapist who was treating the child in the Yearwood case “was not aware of the girl’s history,” which records showed included past instances of “suspected sexual abuse, severe traumatization and confirmed sexual exploitation” by her father. The newspaper reported that the therapist, Betty Phillips, was treating the child only for the alleged assault by Yearwood and was allowed to testify about it.

Cline, last week: Cline said she received a letter from the therapist disputing the characterization that she “was not aware of the girl’s history.” “That was not true,” Cline said.

The record shows: The N&O relied on the therapist’s testimony and Cline’s argument to the judge in regard to what the therapist knew about the past. After the therapist was questioned by both sides, Cline told the judge: “What it – it appears that the doctor has not based her opinion on these prior incidences. It appears from the direct examination, and specifically cross-examination, that she has no personal knowledge of this, nor does she have professional knowledge of it. Therefore, she would not be a competent witness to testify about any of these prior incidents. Some psychologists and psychiatrists do review prior records and notes to formulate a basis. She hasn’t done so.”

Cline addresses the court about therapist’s knowledge:

Questions about a shoe

The background: The N&O reported on two murder cases in which appeals lawyers alleged problems with Cline’s prosecution. Those appeals have not been decided. The N&O reported that trial judges sided with Cline in the course of those trials, but that they also determined that information that should have been available to the defendants for their defense – as required by the Constitution – had not been provided. The information included statements in one case that pointed to others as being involved. In the other case, a file wasn’t provided that also suggested involvement in the crime by others.

Cline, last week: She discussed on what happened in one of the murder cases, a convenience store robbery and killing in which Keith Kidwell was convicted. Cline says that Kidwell’s shoes matched an imprint on the victim’s back.

The record shows: An SBI shoeprint analyst testified that four elements are needed in order to say that a shoeprint impression from a crime scene is a match with someone’s actual shoe. In the Kidwell case, the analyst testified that she found two of those elements – size and design – but not two others, which involved the specific wear of the shoe and any unique characteristics, such as a cut or an embedded rock. She testified that Kidwell’s shoes were a popular Nike model, the most common shoe that she sees. She testified that the shoeprint on the victim could have been made by Kidwell or someone else.

From a brief by the state to the Court of Appeals:

‘Please post everything’

The background: After the articles were published this month, The N&O also posted email exchanges and tape recordings of interviews with Cline on its web site. This was done at Cline’s request, and over concerns expressed by the newspaper that there are factual mistakes in the emails or in the audio.

Cline, last week: Cline pointed to an article disclosing that the newspaper was publishing additional information at Cline’s request that also noted the concern about errors. Cline said The N&O misrepresented her views. “In that story, it says that if there are any errors, Tracey admits to them. I was talking about misspellings in the emails. But it was tied to another issue,” Cline said.

The record shows: The N&O wrote to Cline on Sept. 2 at 3:12 p.m. about possibly including her email exchanges online but cautioned that much of her views were already in the reporting and that “there are misspellings and the overall exchange of the emails is probably not in a format you intended for wide public consumption.” After the stories were published, Cline responded on Sept. 6 at 11:42 a.m.: “I think it would be a great idea to post the emails… Misspelled words are the least of my concerns right now, I want all of the facts to be made as public as possible.” The N&O wrote back at 11:59 a.m. that her request would be considered. “However, your emails also include errors, that we just would not publish,” the N&O replied, and cited the example of the shoeprint in the Kidwell case. Cline responded at 1:47 p.m.: “Please post everything. The errors are mine I am sure. I have no problem with that at all. I am just asking that the public be made fully aware of all of the information; that is all I ask.”

Email exchanges between Cline and The N&O:

Compiled by staff writers J. Andrew Curliss and Joseph Neff

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