Judge suspends Cline; hearing set on removal

acurliss@newsobserver.comJanuary 28, 2012 

  • WHAT THE LAW SAYS

    State law says a district attorney can be suspended or removed from office for the following reasons:

    Mental or physical incapacity interfering with the performance of duties

    Willful misconduct in office

    Willful and persistent failure to perform duties of the office

    Habitual intemperance

    Conviction of a crime involving moral turpitude

    Conduct prejudicial to the administration of justice that brings the office into disrepute

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

  • With District Attorney Tracey Cline's suspension, it will be up to Gov. Bev Perdue to find a replacement.

    State law says that "when a district attorney becomes for any reason unable to perform his duties, the Governor shall appoint an acting district attorney to serve during the period of disability."

    Mark Johnson, deputy communications director for Perdue, said late Friday that the governor's office was aware of the order Friday from Judge Robert H. Hobgood.

    "We're reviewing our options and will act as quickly as possible," Johnson said.

— District Attorney Tracey Cline was immediately suspended from office late Friday after a judge found probable cause that she has engaged in ongoing attacks on a Durham judge that are "prejudicial to the administration of justice" and bring her office into disrepute.

Superior Court Judge Robert H. Hobgood of Franklin County suspended Cline under a rarely used state law. He ordered a hearing for Feb. 13 to determine whether Cline will be permanently removed from the elected office she has held since 2009.

Hobgood was not required to suspend Cline before next month's hearing, but he invoked that option. Through a judicial assistant, he declined to comment.

Cline will continue to receive her salary during the suspension.

Cline could not be reached Friday, but she has vowed to continue her attacks on Superior Court Judge Orlando Hudson "at all costs." She was not at her office, aides said, and the news of her suspension arrived just as the office was closing for the weekend. Her top deputy prosecutors did not respond to requests for comment.

A News & Observer reporter was asked to leave, and the doors were locked at 5 p.m.

Gov. Bev Perdue will appoint an interim district attorney.

Cline's suspension is the latest development after months of turmoil that have surrounded the longtime prosecutor who replaced the disbarred Mike Nifong. Cline, a Democrat, had pledged to restore integrity to the office after the wrongful prosecution of three Duke lacrosse players.

Durham lawyer Kerry Sutton last week filed an 11-page affidavit that alleged that her attacks on Hudson were bringing Durham into "widespread disrepute," invoking a law believed to have been used successfully once before to begin a removal effort.

Hudson, as senior judge, referred Sutton's affidavit to Hobgood, a judge since 1980 who has handled a range of complex legal questions in recent years.

Hobgood sat in a conference room at the Durham courthouse Thursday and Friday, reading the volumes of court filings from the past three months. He then entered the suspension ruling late in the day.

"Tracey E. Cline is immediately suspended from performing the duties of the office of the District Attorney for the 14th Judicial District until a final determination of the charges on the merits," Hobgood wrote.

He directed the sheriff to serve the order on her.

Sutton, who has indicated a possible run for state Senate, will have the ability to call witnesses and testify in next month's hearing. Cline will be able to call witnesses as well; in earlier hearings, she has sought to examine more than 50 possible witnesses.

"I'm certainly not pleased that this is happening," Sutton said Friday. "But there is a sense of relief that we're getting closer to closing this chapter and moving on and getting back to the business of seeking justice in Durham."

Hudson could not be reached for comment.

A previous admonition

Cline has been under scrutiny for her ongoing allegations against Hudson, which two other judges had dismissed. A third judge issued an "admonition" to Cline, warning her to be accurate in court filings after the N&O disclosed that she had presented false motions to him.

And this month, an N&O report showed that one of Cline's chief allegations against Hudson - that he had decided a case before it was over - was based on a time-stamped document that was logged in by a clock that was actually in error. Court clerks confirmed that the document was filed properly after the hearing in question.

Hobgood's ruling says Cline's allegation using the time stamp document and presenting the false motions are factors in her suspension.

Cline has been seeking to remove Hudson from all criminal cases in Durham, alleging in writing that his conduct encompasses "moral turpitude, dishonesty and corruption." Cline has said his rulings have "raped" victims and that he has turned Durham County's judicial district into a monarchy.

Cline claims that Hudson has been retaliating against her with the dismissal of two murder charges after Cline refused in late 2010 to dismiss the case of Derrick Allen, accused in the murder of a 2-year-old girl in 1998.

The case had been on appeal, and the state crime lab's work in it was in question. Cline says Hudson privately encouraged her to drop the charges and she refused. Hudson issued a lengthy order dismissing the case, citing in part Cline's and another prosecutor's violations of "discovery" - the required exchange of information between the sides in a criminal case.

Cline says she did nothing wrong.

Losing restraint

Cline also alleges that Hudson led a conspiracy with the N&O and various defense attorneys to smear her, most notably in the series "Twisted Truth," published in September. The newspaper reports detailed examples of misstatements by Cline in court, questions about her handling of evidence, and her being cited for "repeated neglect" in one case by the state Court of Appeals.

Hudson disputes any allegations of wrongdoing.

Hobgood's ruling Friday addresses the Allen case dismissal directly, saying that sufficient evidence existed for Cline to proceed with a trial as she has said she wanted to do.

"However," Hobgood wrote, "there is further evidence that supports the dismissal of the action by (Hudson) for discovery violations by the State. ... Full discovery was absolutely necessary."

Hobgood wrote it is apparent that the Allen case dismissal had frustrated Cline.

"Thereafter, signals began to appear that Tracey E. Cline was losing her ability to exercise professional restraint and civility toward Judge Hudson," Hobgood wrote.

The affidavit by Sutton uses much stronger language, and Hobgood's ruling says there is probable cause that substantial portions of the filing are true and constitute grounds for suspending Cline.

Among those sections from Sutton's affidavit are ones that describe Cline's filings as "paranoid, alarming and defamatory," and containing "venom."

Curliss: 919-829-4840

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