Durham DA Cline wrote false motions

Durham DA sought inmate records

acurliss@newsobserver.comDecember 4, 2011 

  • The motions presented by Tracey Cline regarding Keith Kidwell and Angel Richardson with incorrect information add to other documented instances of misrepresentations made by Cline. Here's a sampling:

    Cline testified in a trial and told judges in hearings that a backlog at the state crime lab caused forensic testing delays in the case of a man, Frankie Washington, accused in a home invasion and assault. But the state Court of Appeals ruled in 2008 there was no evidence of that. Instead, the judges ruled that Cline had not submitted the evidence for testing for more than three years, causing the delay. Washington's conviction was vacated.

    Cline testified in a hearing last year that in the case of Derrick Allen, who pleaded guilty to a murder and sex assault charge but was appealing, that she had not handled the case at the time it was prosecuted. When confronted with records to the contrary, she said her memory had been refreshed.

    In two late November court filings, Cline says at least 15 times in each that an N&O reporter had been held in contempt of court early in the Allen case. That is not true.

  • Durham District Attorney Tracey Cline in October presented motions to Judge James E. Hardin, seeking prison visitation records. In the motions, she incorrectly stated that the inmates had filed motions for relief, which would have been heard in Durham Superior Court. But the inmates' only active appeals are now at the state Court of Appeals.

Durham District Attorney Tracey Cline presented motions with false information to a Durham judge to obtain confidential documents from the state prison system about two inmates challenging her prosecutions and ethics, according to interviews and records obtained by The News & Observer.

In October, records show, Cline asked Durham Superior Court Judge James E. Hardin for an order that would produce records of who had visited the inmates. In the motions, Cline said the records were needed because the men were challenging their verdicts and had filed "motions for appropriate relief," a legal pleading that Cline would have to answer.

But neither Keith Kidwell nor Angel Richardson filed for that relief, according to records and interviews. Their cases are pending at the state Court of Appeals and are not within Cline's jurisdiction.

The inmates have filed appeals criticizing Cline's prosecution tactics, and each also filed complaints against Cline with the state agency that regulates lawyers, alleging actions by Cline that violate ethics rules.

In an interview, Hardin expressed concern that the motions and orders he signed were not accurate. He said he would schedule a hearing on the issue soon.

Cline declined to comment.

Lawyers for the defendants said they were unaware of Cline's efforts and would have opposed her. Kidwell's appeals lawyer, David Neal, said he had not been notified.

The state doesn't list any valid reason to overcome the confidentiality of the prison records, Neal said.

"It's a surprise," he said. "It's puzzling. And it's an issue of candor to the tribunal."

Duke law professor James Coleman, who teaches on ethics in the law, reviewed the documents and said they add to troubles enveloping Cline. She has been sued by a man whose case was vacated because of neglect in her prosecution, two murder charges have been dismissed in part because of her work and she has attacked the senior judge in Durham in numerous court filings.

Coleman said the State Bar, which regulates lawyers in the state, would likely study Cline's motions with several concerns, including whether they are accurate, what the purpose of filing them was and whether she abused her authority.

The bar will be concerned, he said, about "not only whether she is misrepresenting and abusing the judicial process, but also whether she is filing patently false allegations in pleadings and taking advantage of the immunity that she has (as a prosecutor). ... She really is undermining the integrity of her office."

The bar has declined comment.

Using an investigator

Cline's effort to obtain the prison visitation records began in September, records show, after both inmates were featured in a News & Observer series, "Twisted Truth," that detailed ongoing questions and scrutiny of Cline's conduct.

Darrell Brown, a police detective assigned as an investigator to Cline's office, wrote a memo to prison officials that said Kidwell's visitation records were needed by Cline's office to ensure Kidwell followed the prison's procedures on visitations. Prison policy says inmates must put their visitors on a list approved by prison officials before someone can visit them.

"(The) visitation lists are needed to make sure he's in compliance with the pre-approved visitors," Brown wrote in the memo to a captain at Central Prison in Raleigh, where Kidwell is imprisoned. The prison system marked it received Sept. 22. Brown declined comment.

Prison officials refused Cline's requests for the visitation documents because state law protects them as confidential, said prison system spokesman Keith Acree.

Acree said the prison system is in charge of its own policies on visitation and that the district attorney in Durham has no authority over compliance with visitation procedures in state prisons.

"Why the DA's office is interested in whether Kidwell is seeing his pre-approved visitors, I have no earthly idea," Acree said. "It's our own internal policy, so it's ours to police."

Acree said lawyers for the prison system told the investigator working for Cline that only a court order could produce the documents. "When we get a court order to do something from a court," Acree said, "we don't question it. We just comply with it."

Records show Cline then presented two motions to Hardin, a former district attorney in Durham.

Cases under appeal

Cline's motions requested that Hardin require prison officials to deliver the visitation records of Kidwell and Richardson to Hardin's office. Hardin agreed. He signed the orders Oct. 7, records show. Hardin said he had planned to conduct a hearing to determine whether to allow Cline to have them.

The time frame for the records sought was only for 2011, though Kidwell was jailed in 2005, Richardson in 2006.

The stated basis for seeking the records, according to Cline's signed motion to Hardin, was that both inmates had filed the motions for appropriate relief.

Typically, that motion for relief is filed based on new evidence, changes in the law or alleged constitutional violations in a case.

Cline wrote in the motions to Hardin that the inmates were "attacking the jury verdict and the sentence entered by the trial court judge" and that the prison visitation records were "pertinent for the investigation for the Motion for Appropriate Relief (each) named defendant has filed."

However, records and interviews show neither Kidwell nor Richardson filed a motion for appropriate relief.

Both await decisions on their cases from the state Court of Appeals. The appeals court judges met this summer to consider each man's appeal, but have not announced a ruling.

The trial and appeals lawyers for both Kidwell and Richardson confirmed in email messages or interviews that there are no filed motions for appropriate relief in either case.

At the time Cline sought records for Kidwell and Richardson, Cline also secured an order from Hardin for prison visitation records of a third inmate, convicted rapist David Yearwood. He also was featured in the N&O's series, which Cline has criticized as unfair to her.

A reporter for The N&O interviewed Kidwell, Richardson and Yearwood in prison.

When Cline's investigator first sought Yearwood's prison visitation records under the same basis as Kidwell, records show Yearwood also did not have a Motion for Appropriate Relief pending. The request by memo from Cline's office also was denied by the prison system.

Yearwood's lawyer then filed a post-conviction appeal Oct. 5. A day later, Cline delivered all of the motions seeking the prison records to Hardin.

Hearing from defendants

Prosecutors and lawyers are bound by rules of professional responsibility that emphasize lawyers must be truthful at all times.

Hardin said in an interview that he will consider the situation and, if warranted, take action. Hardin said he was not aware of any questions about the accuracy of the motions he acted upon until contacted by The N&O.

"I've got to sit down and assess what needs to be done," Hardin said Thursday. "And I will do that."

On Friday, Hardin said he had confirmed there are no motions for appropriate relief pending in the cases of Kidwell and Richardson.

Hardin said records also show he had directed the DA's office to schedule a hearing about what to do with the prison records roughly six weeks ago but that had not been done. He said that was a "concern."

Hardin has records for Kidwell and Yearwood under seal in his office, but said he had not received Richardson's. The Yearwood records had been sent to the district attorney's office in October, said Acree, the prison spokesman.

But Hardin said they were provided to him on Friday for the first time.

Hardin said, as a judge, he presumes that motions lawyers present to him contain accurate information because it is a duty of the profession.

"All I can do is address what's in front of me at the time that it's presented to me and presume that what is there is factual and then act upon it based upon the facts presented and asserted," he said.

Hardin declined comment on possible resolutions.

Contempt of court?

Coleman, a law professor at Duke since 1996, said he would be surprised if Hardin does not hold a hearing in which Cline would have to prove why she should not be held in contempt of court.

"That would be the normal response to something like that," Coleman said. "And it's too bad. She's just self-destructing."

Coleman said the motions seem to relate to Cline's efforts in voluminous court filings recently that allege the senior judge in the county, Orlando Hudson, is out to punish her because she would not dismiss a murder charge.

One of Cline's filings runs more than 99,000 words and contains a string of unsupported or disputed allegations against Hudson. It also contains verifiable errors. Another filing by Cline says Hudson has "raped" victims in dismissing charges while finding that defendants' rights were violated by Cline and others.

Cline seeks to remove Hudson from all criminal cases in Durham while she pursues a complaint against him with the state commission that oversees judges. Her complaint has not been made public.

Complaints about judge

Cline's recent court filings, and other records requests she has made, show Cline has pursued numerous documents - other than the prison visitation records - about Hudson, attorney Lisa Williams and others who she alleges in court documents have conspired to hurt her.

On Sept. 13, Cline requested volumes of payments relating to Williams, who was Kidwell's and Richardson's trial lawyer, that include salary payments, expense reimbursements, information about declined payments and other such financial records from the state agency that handles court-appointed work.

Cline also requested email messages from Hudson on Sept. 13. He provided some and withheld others, records show. The next week, the prison system received the memo from Cline's investigator first seeking prison visitation records.

Cline wrote about the three inmates' cases in a recent court filing, and said she still wants information about them from Hudson's email accounts because they were included in the N&O's series in September. She believes Hudson essentially directed the coverage, an allegation the N&O disputes.

A first hearing on Cline's complaints against Hudson is scheduled to begin Monday. She issued subpoenas to a range of people involved, including an N&O reporter and two editors, seeking their testimony in the hearing.

'This is strange'

Cline declined requests to explain her motions and the resulting orders.

Cline would not release to The N&O her versions of the motions, orders and memos, or other requests for documents she has made. She cited a state law that allows her to withhold records relating to criminal investigations,criminal intelligence information or trial preparationmaterials.

The N&O obtained the orders and motions from the state Department of Correction.

Irving Joyner, a law professor at N.C. Central University, said he did not see how Cline's request for prison visit records in 2011 could relate to "any claim growing out of the trial or investigation of the cases."

Joyner said the filings are apparent "misrepresentations to a court." He said Hardin was correct to assume themotions presented to him were accurate and, if they were not, he was clearly misled.

"This is strange," Joyner said.

Curliss: 919-829-4840

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