State denies conflict between cases involving fired SBI agent

In murder case, AG's office will defend work of an ex-SBI agent suing to regain job.

jneff@newsobserver.comDecember 5, 2011 

— While Attorney General Roy Cooper's office defends the state's decision to fire former SBI agent Duane Deaver, lawyers from Cooper's staff are willing to defend Deaver's work in winning the 2003 murder conviction of Durham novelist Michael Peterson.

Peterson returns to court today to try to overturn his first-degree murder verdict in a case that Tracey Cline, Durham's district attorney, has handled like a hot potato.

This summer she asked Cooper's office to take it off her hands. But, according to Cline's correspondence, the Attorney General's Office had said it could not step in because it had a conflict of interest.

The Peterson hearing today is solely focused on alleged misconduct by Deaver. Deaver is suing the Attorney General's Office after being fired in January.

Cline then moved to hire Deaver's lawyers, the ones suing the Attorney General's Office, to represent the state in opposing Peterson's effort. But court officials shot that down.

In the past week, Cline turned again to Cooper. The Attorney General's Office said late Friday there was no conflict, and it is prepared to handle the Peterson case if the judge will agree to postpone it to give lawyers time to prepare.

Peterson was convicted in 2003 of murdering his wife, Nortel Networks executive Kathleen Peterson. She died at the bottom of a blood-spattered staircase in the Petersons' Forest Hills mansion in December 2001.

In February, Peterson's lawyer filed a request for the new trial, saying Deaver had a pattern of fabricating evidence of guilt and hiding evidence of innocence.

In the summer, Cline approached the Attorney General's office for help. According to email Cline subsequently sent to court officials, Cooper's office declined because it had a conflict: the Attorney General's Office could not defend Deaver's work in the Peterson case at the same time it was fighting Deaver's attempt to get his job back.

"My first contact was with Deputy Attorney General James Coman and then several other attorneys in the AG's Office, and it is clear that they also have a conflict of interest," Cline wrote to senior court officials. "I am seeking funds to seek and hire private" lawyers to represent the state. Given the length and complexity of the Peterson case, finding the right lawyers was difficult. Cline suggested that the state hire Deaver's lawyers who were suing to get his job back.

"I think that if the State will pay for these lawyers to handle the case as special prosecutors, in the end it will save the State money," wrote Cline, who quoted a cost of $100,000.

Philip Isley said he and his partner, Phillip Miller, Deaver's lawyers, were willing to take the case if the state would hire them. Isley said it would have cost more than $100,000. Isley said they had no conflict in defending Deaver's work for the state while attacking the state for firing Deaver.

But John W. Smith II, director of the Administrative Office of the Courts, thought otherwise in an email to Cline: "Appointing Deaver's lawyers (who are suing the state) as special prosecutors when Deaver's conduct is the issue would not be appropriate."

It's unclear whether Cline's office has prepared to represent the state in this week's hearing.

Noelle Talley, a spokeswoman for the Attorney General's Office, contradicted Cline's email and said the office never had a conflict with Deaver in the Peterson case.

"It has been the position of our office from the beginning that we have no legal conflict in this case," Talley said in an email late Friday.

Peterson's lawyer, David Rudolf, said he will fight any attempt to delay the hearing, which has been scheduled for five months. A judge could rule on a delay as early as today.

Neff: 919-829-4516

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