Among the misconduct allegations that Durham District Attorney Tracey Cline has made against Superior Court Judge Orlando Hudson, one stands out as particularly damaging: Cline claims Hudson decided to dismiss a murder charge in an August hearing even before all of the state's witnesses had testified.
Cline's proof is the time stamp on a document signed by Hudson that indicates the murder charge had been tossed out and was logged in while the hearing to decide the case was still going on. Cline has highlighted the document's timing repeatedly in an unusual and ongoing effort to accuse the judge of wrongdoing.
Cline claims Hudson made the decision to "plant a poisonous seed for salacious stories" to appear later in The News & Observer.
"Judge Hudson dismissed this case without hearing all of the evidence," Cline wrote in an affidavit she filed on Monday, repeating earlier filings.
Cline's assertion is wrong, according to court documents, a transcript of the hearing, interviews with officials at the Durham County court clerk's office and other records.
What happened? The clock at the courthouse that stamped the document was more than two hours slow that day.
The document in question was actually filed about 4:50 p.m., according to records and interviews.
That was more than an hour after the final witness testified, records show, and was roughly 10 minutes after Hudson announced his decision in open court to dismiss the murder case, which involved allegations against a Mebane man arrested with a backpack full of bones. The defense sought the case dismissal because the bones were cremated before the defense could test them for identity or cause of death.
Hudson's dismissal was made orally from the bench at 4:40 p.m. on Aug. 16, according to an email sent at the time of dismissal by an N&O reporter who attended the hearing.
Within about a minute, Hudson signed the document - an order requiring the defendant be held in custody for an evaluation - while seated at the bench as Cline, the defendant, the public defender and representatives of much of the region's news media looked on.
"This Court will sign this order at this time," Hudson said, according to a transcript of the hearing. "We'll have the clerk copy and clock these in, and also the Sheriff. ... Ms. Clerk, if you will clock these in."
The clerk who was in the courtroom, Victoria Hunt, could not recall what she did with the document, but her notes reflect that she received it at some point after 4:37 p.m. The document was taken to an office and is shown as being clocked in by another clerk, Susan Lanning, who was working in the office. Lanning said she could not recall the circumstances of that day.
Their supervisor, assistant county clerk Angela Kelly, said all documentation points to a time of about 4:50 p.m. for the document's filing - even though the actual time stamp on it shows 2:34 p.m.
Cline appeared to have relied only on the time stamp for her allegations against Hudson, who has denied wrongdoing. At a hearing Friday, Cline thanked an N&O reporter for making her aware of the malfunctioning clock but declined to discuss the matter.
"You know I am not going to talk to you," she said.
A malfunctioning clock
Kelly and Durham's elected clerk of the court, Archie Smith, said in an interview on Tuesday that no one had contacted them about the document or its time stamp, including Cline. Cline has highlighted the issue in filings or courtroom arguments made in each of the past three months.
"This is the first I've heard of it," Smith said.
Lawyers time stamp documents with the clerk's office to establish independent proof of filings, often to ensure deadlines are met. Kelly said the clock in the clerk's criminal division office has malfunctioned in the past, at one point requiring repairs last year. She said many lawyers are aware it can go awry.
"It is a machine that's plugged up in the wall that runs constantly," Kelly said. "When things are filed, we stick it in there, and we always hope and pray it's correct. But there have been times when we notice that it's not correct."
Court records and interviews confirm the clock was slow by about two hours and 16 minutes at the time the document was filed.
The best evidence is that, on the morning after the hearing in question, a Durham lawyer went to the clerk's office at about 9:30 a.m. to file a series of motions in a separate case.
The first two documents came out of the time-stamp clock and showed a mark of 7:18 a.m., a time the courthouse isn't open.
"We joked about it, and they reset the clock," said Kerry Sutton, a Durham lawyer who filed the motions that morning. "The clerk crossed out the wrong time and re-clocked it."
The two court documents from that day show the incorrect time stamp marked out by a clerk and then a correct time stamp, showing the difference of more than two hours.
As it turns out, those filings were made in the case that was the subject of a hearing Friday in Cline's effort to remove Hudson from criminal cases in Durham; she was again unsuccessful, but Cline has indicated she will seek to remove Hudson from other cases.
A sign of preparation
The document at the heart of Cline's allegation against Hudson was not the official order that dismissed the murder charge itself. That was drafted and filed later.
The document Cline is focusing on ordered the defendant, Michael Dorman, held and evaluated to determine whether he would be a danger to himself or the public. The result of Hudson's order was that Dorman was not released despite the murder charge being thrown out after days of arguments about the case held this past June and August.
Richard Myers, a former federal prosecutor and law professor at UNC-Chapel Hill, said it is not misconduct if a judge has an order that reflects an outcome ready to sign at the conclusion of a hearing.
"A thoughtful judge often has draft orders prepared," Myers said.
James Coleman, a criminal law professor at Duke University, said Cline should have done more research before using the issue as an allegation against the judge in her effort to remove him from criminal cases in Durham. Last month, Superior Court Judge James Hardin had warned Cline to be accurate in motions and court documents after she presented false information in a motion.
"She has made a serious allegation, and it warranted serious review by her before this filing," Coleman said. "It is now just more evidence of a lawyer who is barreling down a hill totally oblivious to the damage she is causing to the judicial system. She is undermining confidence in the system. It's disgraceful."
