Judge asked to rescind order on prison records

acurliss@newsobserver.comDecember 7, 2011 

Lawyers for two convicted murderers want Durham Judge James E. Hardin to throw out an order Hardin granted in October to release confidential prison records because the judge's order was based on apparently false information presented to him by Durham District Attorney Tracey Cline.

The lawyers for inmates Keith Kidwell and Angel Richardson allege in court documents that Cline violated state law and ethics rules for lawyers in seeking prison visitation documents. Hardin could sanction Cline over the issue, legal experts said. Cline has declined to comment.

The issue was the subject of a report in Sunday's News & Observer that showed Cline sought orders from Hardin to obtain prison visitation records of three inmates, including Kidwell and Richardson, after prison officials refused to provide them without a judge's order.

Cline's concerns

The original requests for the records by Cline's office said the purpose was to ensure the inmates were in compliance with visitation policies - something the prison system said Cline has no authority over.

Cline then presented motions to Hardin that said the defendants were attacking the jury verdicts and had filed a legal appeal known as a "motion for appropriate relief," which would have given Cline jurisdiction. Hardin signed the orders based on Cline's motions.

But the cases involving Kidwell and Richardson are still before the Court of Appeals, and they have not filed any such motions for relief, according to records and interviews.

"The state provided this Court with a false reason for granting its Motion," the lawyers wrote in nearly identical motions filed this week.

Kidwell's lawyer is David L. Neal of Hillsborough. Richardson's lawyer is Ann B. Petersen of Chapel Hill.

Hardin said in an email message, "A hearing will likely be scheduled during the middle of next week on all of these cases."

The lawyers' filings say Hardin should "vacate" his order regarding the prison records due to four reasons:

Cline's motion is "premised on a false assertion." They wrote that State Bar rules for lawyers require "candor to the tribunal."

Neal highlighted that Cline and her office have offered different reasons for why she sought the records, and he wrote that none of the reasons is valid.

Cline did not give the required notice to other lawyers that she was seeking the prison records. "It is improper" under state law, both lawyers wrote.

Hardin does not have jurisdiction over Kidwell's case to grant the orders. The lawyers wrote that Cline should have informed Hardin of important information so he would have known he should not rule.

In their motions, Neal and Petersen cited an ethics rule for lawyers that says a lawyer, when meeting with a judge without giving notice to the opposing side, must "inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse."

They allege that Cline failed to do that twice: by not informing the court that the records sought were confidential prison records, and by not telling Hardin that the case was pending in the Court of Appeals.

The prison records

All of the prison records were supposed to have been delivered to Hardin's office, according to the judge's orders. Records for Kidwell are under seal in Hardin's office. Records for Richardson have not been located.

Records for the third inmate, convicted rapist David Yearwood, were sent to Cline's office instead in October, records show. After The N&O inquired, Hardin obtained Yearwood's prison records last week for the first time.

Neal wants Kidwell's records returned to corrections officials and for Hardin to take other action he "deems appropriate." Peterson wants Richardson's documents returned as well, if found.

Legal experts said Cline could be sanctioned for what happened and that Hardin would not want other lawyers to believe they can file motions with false information in them. Hardin is a former district attorney in Durham.

A judge, like the State Bar, has the power under state law to impose penalties on lawyers or prosecutors who do not obey rules.

Records show that Cline sought the prison visitation records at the same time she was seeking other records as part of her high-profile court filings that attacked the senior judge in Durham, Orlando Hudson.

Cline alleged Hudson has been out to punish her and that Hudson orchestrated his alleged punishment against her with defense lawyers and The N&O. On Monday, a judge dismissed one of those efforts by Cline; she withdrew the other two as it became clear that they also would be dismissed.

Claims against Cline

A News & Observer reporter and photographer met with the inmates this year, and the inmates were featured in a series of articles that described how Cline's conduct has been under scrutiny in the courts. The inmates have based appeals on alleging an improper prosecution by Cline.

Cline's request for prison visit records covered only 2011, though the inmates have all been in jail since at least 2006. One has been in prison since 2000.

Cline mentions prison visitation with Yearwood, the inmate whose file was delivered to her office, in her recent filings that attacked Hudson.

Petersen wrote she "has been unable to discern any reason why otherwise confidential visitation records from 2011 - long after (Richardson's) trial concluded - would have any relevance to any valid investigation undertaken by the District Attorney."

Duke University law professor James Coleman said in an email message Tuesday he would expect Hardin to hold a separate hearing with Cline to determine why she should not be held in contempt of court.

Irving Joyner, a law professor at N.C. Central University, said Hardin could issue a range of penalties, including a warning, suspending her law license or disbarring her. But he suspected, given that Hardin is a former supervisor of Cline, he would refer the issue to the State Bar "if he felt the conduct was intentional."

A bar investigator has made inquiries into some issues involving Cline, but officials at the bar say they cannot comment.

Curliss: 919-829-4840

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