Lawyer files document to seek removal of Durham DA Tracey Cline

Staff writerJanuary 18, 2012 

A Durham lawyer today filed a court document that asks a judge to determine if Durham District Attorney Tracey Cline should be removed from her office under a provision in state law that allows it.

Lawyer Kerry Sutton wrote in an 11-page affidavit, filed under state law for the removal of a district attorney, that ongoing attacks Cline has made against Superior Court Judge Orlando Hudson are prejudicial to the administration of justice and have brought the district attorney’s office into disrepute, a standard for removal under the law.

The filing also alleges that Cline has met other grounds the law says requires removal, including “habitual intemperance” and causing an assistant prosecutor to take actions that also meet grounds for removal.

Cline could not immediately be reached for comment but has denied wrongdoing. Cline was elected to a four-year term without opposition in 2010.

Over the past three months, Cline made a series of allegations that centered on Hudson, alleging he turned on her and ruled against her in at least two cases after Cline would not dismiss a murder charge.

Cline wrote in more than 600 pages of filings that Hudson’s actions involve “moral turpitude, dishonesty and corruption.” She has written that decisions he made in dismissing cases “raped” crime victims and weren’t based in facts or the law. Cline wrote that Hudson has turned Durham into a monarchy and that Hudson has ruled with the “reprobate mind of a monarch.”

Judges have considered her filings twice. Former prosecutor Carl Fox of Orange County called her documents “woefully inadequate” and dismissed her claims in December.

Last week, Superior Court Judge Henry W. Hight Jr. of Henderson also dismissed Cline’s effort. Hight wrote in a “summary dismissal” that Cline’s filings failed to provide a factual basis to conclude that Hudson was prejudiced or that his objectivity could be questioned. Hight’s ruling cleared the way for Hudson to preside over a sexual molestation case in which Cline was not involved and had not handled.

Sutton was a lawyer for the defendant involved in last week’s case.

Sutton and lawyer Stephen Lindsay of Fairview asked Hudson on Friday to hold a hearing to determine why Cline should not be held in contempt of court for her actions. Hudson said he wasn’t comfortable doing that himself. Lindsay said Hudson should ask another judge to consider it. Hudson said he would think it over.

The affidavit by Sutton also mentions the details of a report from Sunday's News & Observer that showed one of Cline's allegations -- that Hudson had decided a case before a hearing was over -- was not correct. Cline appears to have based her claim on the time stamp of a document filed in the case while the hearing was still going on. But court clerks confirmed that the clock was slow and incorrect on that day. They said the document in question was filed after the hearing was over.

Under state law, the removal affidavit is sent first to Hudson for his consideration because he is the senior judge in the county.

Hudson can assign the issue to another judge, a likely course given his comments from the bench and actions he took to refer her claims to other judges as Cline sought to remove him from criminal cases in Durham.

The judge that hears the matter would likely appoint a lawyer to act as a prosecutor against Cline. Sutton, by filing the affidavit, would be a witness.

Removal efforts have rarely been filed. Only one, from the mid-1990s, is believed to have been successful.

A Durham resident filed one against former prosecutor Mike Nifong in the midst of the Duke lacrosse case in 2006. Hudson delayed taking action as the State Bar was investigating.

The state law involved says a district attorney can be removed for the following grounds:

* Mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent;

* Willful misconduct in office;

* Willful and persistent failure to perform his duties;

* Habitual intemperance;

* Conviction of a crime involving moral turpitude;

* Conduct prejudicial to the administration of justice which brings the office into disrepute; or

* Knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal as listed above.

What the law says about how a removal effort should be handled:

A proceeding to suspend or remove a district attorney is commenced by filing with the clerk of superior court of the county where the district attorney resides a sworn affidavit charging the district attorney with one or more grounds for removal. The clerk shall immediately bring the matter to the attention of the senior regular resident superior court judge for the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located who shall within 30 days either review and act on the charges or refer them for review and action within 30 days to another superior court judge residing in or regularly holding the courts of that district or set of districts. If the superior court judge upon review finds that the charges if true constitute grounds for suspension, and finds probable cause for believing that the charges are true, he may enter an order suspending the district attorney from performing the duties of his office until a final determination of the charges on the merits. During the suspension the salary of the district attorney continues. If the superior court judge finds that the charges if true do not constitute grounds for suspension or finds that no probable cause exists for believing that the charges are true, he shall dismiss the proceeding.

If a hearing, with or without suspension, is ordered, the district attorney should receive immediate written notice of the proceedings and a true copy of the charges, and the matter shall be set for hearing not less than 10 days nor more than 30 days thereafter. The matter shall be set for hearing before the judge who originally examined the charges or before another regular superior court judge resident in or regularly holding the courts of that district or set of districts. The hearing shall be open to the public. All testimony shall be recorded. At the hearing the superior court judge shall hear evidence and make findings of fact and conclusions of law and if he finds that grounds for removal exist, he shall enter an order permanently removing the district attorney from office, and terminating his salary. If he finds that no grounds exist, he shall terminate the suspension, if any.

The district attorney may appeal from an order of removal to the Court of Appeals on the basis of error of law by the superior court judge. Pending decision of the case on appeal, the district attorney shall not perform any of the duties of his office. If, upon final determination, he is ordered reinstated either by the appellate division or by the superior court upon remand his salary shall be restored from the date of the original order of removal.

For more on this developing story, read tomorrow's News & Observer.

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