DURHAM — Durham District Attorney Tracey Cline has struck out on her attempt to get Durham's top judge removed from court cases.
Cline says Senior Resident Superior Court Judge Orlando Hudson, Durhams top judge, has directed a conspiracy to punish her because she refused to dismiss a murder charge.
Superior Court Judge Carl Fox denied Cline's request to remove Hudson in the case of Durham novelist Michael Peterson, who is challenging his 2003 conviction for murdering his wife. Cline withdrew her requests in two other cases.
Cline had failed to provide facts of Hudson's misconduct, Fox ruled, calling Cline's evidence "woefully inadequate."
Fox dismissed Clines contention that Hudson had a pattern and practice of bias against the state.
Judge Hudson has been a judge for 20 years and, statistically, these two cases arent a blip on the screen, Fox said. Hes handled thousands and thousands of cases. ... This is dismissed.
Cline filed three motions, in the cases of Peterson; David Yearwood, who is challenging his 2000 sexual assault conviction; and Michael Dorman, whose murder charge was recently thrown out by Hudson. Cline withdrew her motion in Dorman case after Fox pointed out the case was before the N.C. Court of Appeals.
The most prominent trial at stake involves Peterson, who was sentenced to life in prison for the 2001 murder of his wife, Kathleen Peterson, a prominent Nortel executive.
Peterson entered shortly after 10 a.m., gaunter and grayer than at his 2003 trial. Peterson sat in the jury box, smiling and laughing in conversation with his lawyer, David Rudolf.
A hearing into Petersons case has been scheduled for five months. Petersons lawyer has argued that his conviction should be thrown out because of a pattern of misconduct by the states key expert witness at the 2003 trial, former SBI agent Duane Deaver.
But Petersons case cant be heard until the court hears Clines request that Hudson be removed.
Fox expressed frustration when he took up the Peterson case. State law requires that a person seeking to remove a judge must file a sworn affidavit with supporting fact, yet Cline filed several affidavits that have nothing to do with the Peterson case.
Theres a lot of verbiage in here that has nothing to do with anything, Fox said of Clines 286-page motion and foot tall stack of exhibits. The affidavits are not sufficient.
Hudson had shown no bias against the state during the five-month Peterson trial, said David Rudolf, Petersons lawyer. The case is titled State versus Peterson, not Cline versus Peterson, and Hudson showed no bias against the state during the five-month trial, Rudolf argued
Both sides were fed out of the same spoon, Rudolf said. He never displayed one hint of being prejudiced against the state in what was an extraordinarily hotly contested case.
Cline's requests are rambling and lengthy two run almost 100,000 words each and contain language that has shocked legal experts and courthouse veterans for their personal invective against Hudson. Cline wrote that Hudson has the reprobate mind of a monarch and has raped crime victims by dismissing charges. Hudson had previously found that Clines conduct had violated the rights of defendants in two cases. Cline contends she has done nothing wrong.
Fox patiently listened as Cline discussed more than a dozen cases that she said supported her request. At one point, Cline mentioned one case, but told the judge she hadnt read it yet and asked for time to read it. Fox said yes.
The packed courtroom sat in silence while Cline did her legal research.
Finally, after 14 minutes, Fox broke the silence: Are you still reading the case?
Cline said she hadnt located the correct citation.
Rudolf then made a succinct argument: Cline had presented no evidence on the Peterson case, and Fox should deny Clines request and get on with Petersons long scheduled hearing.
Cline then gave a rambling half hour speech that roughly tracked her court filings and made no mention of Peterson: Hudson was retaliating against her because she failed to dismiss a murder charge in the case of Derrick Allen.
Judge Hudson told me I should dismiss this case because of a lot of eyes were on the case and the SBI, Cline said. She declined, and Hudson later dismissed the case because the SBI had not reported all the results of blood tests in the case.
While Fox exhibited great patience with Cline, he did say at one point that he was having a hard time following her arguments.
"Madam DA, I once had one of those Magic 8 Balls that you turn to get an answer," Fox told Cline. "I have no idea what Judge Hudsons thinking is."
Rudolf said after the ruling that Cline's legal argument was "a little bit surreal" and the hearing was like nothing he had seen in his 38 years as a practicing attorney.
"It was a strange hearing," he said.
He also said Fox "was very patient with her" and let her make all her arguments.
The small courtroom was standing room only. It was filled with reporters, a French documentary film crew and friends and family of Michael Peterson. Also present were healthy cross section of the Durham legal community: former District Court Judge David LaBarrre, state Rep. Mickey Michaux and Larry Pollard, a lawyer turned businessman who advanced the theory that Kathleen Peterson was killed by an owl, not her husband.
In the Yearwood case, Cline withdrew her motion after the judge pointed out that Cline was basing her argument on the same affidavits that were insufficient in the Peterson case.
Mid morning, Cline withdrew the motion involved Dorman's case. Hudson threw out murder charges against Dorman in August.
Because Dorman's case is on appeal at the state Court of Appeals, there is nothing to rule on, Fox said, so Cline withdrew the motion.
Hudson did not preside over todays hearing. He asked Fox, a former district attorney, to take the bench.
Cline has subpoenaed more than 50 witnesses for todays hearing. She also has subpoenaed two editors and a reporter from The News & Observer, which in September published a series, Twisted Truth, detailing how Cline had withheld evidence from defendants and had made misstatements to judges in several cases. The News & Observer will seek to quash the subpoenas.