DURHAM — District Attorney Tracey Cline compelled a considerable part of Durham's legal community to attend a hearing Monday, where they watched as she failed in her unprecedented attempt to prevent Durham's top judge from handling criminal cases.
Cline had made extraordinary claims in three criminal cases against Superior Court Judge Orlando Hudson, accusing him of "moral turpitude, dishonesty and corruption" and of orchestrating a conspiracy to ruin her.
Despite voluminous court filings, Cline failed to produce a single fact that justified removing Hudson, according to Superior Court Judge Carl Fox, a former district attorney brought from Orange County to hear the cases.
State law requires that a person seeking to remove a judge must file a sworn affidavit with supporting facts. Cline filed four affidavits that had nothing to do with the three cases at issue Monday, according to Fox.
"There's a lot of verbiage in here that has nothing to do with anything," Fox said before denying one of Cline's motions, which ran 286 pages and was accompanied by a foot-tall stack of exhibits. "The affidavits are not sufficient."
Given the ferocity of Cline's attacks on Hudson, Monday's hearing could have been marked by courtroom verbal fisticuffs.
But the hearing was more tedium than tension as Fox gave Cline almost unlimited time to argue her case. He twice gave her the opportunity to conduct new research to back up her arguments
A significant part of Durham's legal world witnessed the hearing, some involuntarily, as Cline had issued 53 subpoenas to lawyers, active and retired judges, court clerks and journalists.
Monday's hearing focused on three criminal cases: David Yearwood, who is challenging his 2000 sexual assault conviction; Michael Dorman, whose murder charge Hudson recently threw out; and Durham novelist Michael Peterson, who was sentenced to life in prison for the 2001 murder of his wife, Kathleen Peterson, a prominent Nortel executive.
Peterson, looking grayer and gaunter than in his 2003 trial, appeared relaxed and cheerful as he talked with his lawyer, David Rudolf. A hearing into Peterson's motion for a new trial was scheduled for Monday and had been on the docket for five months. Rudolf has argued that his conviction should be thrown out because of a pattern of misconduct by the state's key expert witness at the 2003 trial, former SBI agent Duane Deaver. But Peterson's request couldn't be heard until Fox decided Cline's request to remove Hudson. Peterson's case will be heard at 9:30 this morning; Cline is expected to ask for a delay in the case.
Early in the hearing, Fox said that Cline's evidence was "woefully inadequate."
Cline repeatedly said that her affidavits did not have to address every allegation in her complaint that asked for Hudson's removal from the Peterson case.
"The affidavits, the only thing is that they have to support the motion," said Cline, who said she needed a break to retrieve a relevant court opinion from her office. "I'll go up and get the decision. I didn't realize it would be such a big deal."
That brought Fox's only sharp response of the day.
"This court feels it is very serious, what is alleged in this motion," Fox said. "There has to be something in these affidavits that indicate he is biased in this case."
Hudson had shown no bias against the state or for Peterson during the five-month Peterson trial, Rudolf told Fox.
"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."
A reading break
Fox patiently listened as Cline discussed more than a dozen cases from state appellate courts that she said supported her request. At one point, Cline mentioned a case that she hadn't read yet and asked the judge for time to read it. Fox said yes.
The packed courtroom sat in silence while Cline sat alone at her table, flipping through documents.
After 14 minutes, Fox broke the silence: "Are you still reading the case?"
Cline said she hadn't located the correct citation.
Rudolf then made a brief argument: Cline had presented no evidence relating to the Peterson case, and Fox should deny Cline's request and get on with Peterson's long-scheduled hearing.
Cline responded, starting her half-hour speech by admitting her motion had nothing to do with the Peterson case: Hudson was retaliating against her because she failed to dismiss a murder charge against Derrick Allen, who had been locked up for 12 years on murder charges. Hudson later dismissed the case in December 2010 because prosecutors and the SBI had not turned over crucial evidence to his lawyers.
Cline's argument about Hudson's alleged conspiracy against her veered from Allen to a defense attorney to The News & Observer to other defense attorneys.
"Judge Hudson told me I should dismiss this case because of a lot of eyes were on the (Allen) case and the SBI," Cline said. She said she declined, and Hudson dismissed the charges.
Fox asked no questions and let Cline argue as long as she wanted. Earlier, he said 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 Hudson's thinking is."
Cline withdrew her motions in the Yearwood and Dorman cases after it was clear Fox would rule against her. The Dorman case is currently before the state Court of Appeals, so there was nothing for a trial judge like Fox to rule on. Fox made it clear that Cline's affidavits were as useless in the Yearwood case as in Peterson's.
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 a healthy cross section of the Durham legal community: former District Court Judge David LaBarre, 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.
Several veteran defense lawyers said they were disturbed by Cline's filings and her handling of the case. Cline's lengthy requests - two run almost 100,000 words each - and contain language that has shocked 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 Cline's conduct had violated the rights of defendants in two cases.
"It was remarkable that she offered no evidence in support of these extraordinary allegations," said Bill Thomas, a lawyer with 32 years experience in Durham.
Among the 53 people subpoenaed for Monday's hearing were two editors and a reporter from The N&O, 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. Cline dismissed the subpoenas at the end of the day.
Monday's hearing is likely to draw the scrutiny of the N.C. State Bar, the agency that licenses and disciplines lawyers. The bar has begun an investigation into Cline; given Cline's attack on Hudson with no supporting facts, the bar may be investigating whether she has run afoul of the rule forbidding lawyers from recklessly impugning the integrity of a judge.
Durham lawyer Scott Holmes said Cline had abused her power by issuing subpoenas to his client and other lawyers who had nothing to do with the Peterson case. Prosecutors cannot subpoena defense lawyers unless the evidence sought is essential to complete an ongoing investigation. Holmes' client, attorney Geeta Kapur, represented a woman whose prosecution on habitual felon charges had no connection to Peterson, though the case was featured in an N&O article.
"She tied up almost the entire defense bar of Durham trying to defend her own reputation, and that's pitiful and a waste of resources," Holmes said. "She had detectives out serving subpoenas all weekend when they could have been out solving crimes."