Suspended Durham District Attorney Tracey Cline is set to appear today for the beginning of a special inquiry that could cost her the elected position she has held since 2009.
Cline seeks to delay the hearing due to an illness and inability to hire an attorney, saying she is not prepared and is not "physically at my best."
The proceeding that begins today must be concluded this month by law and should be telling for what it is not expected to be - another chance for Cline to allege wrongdoing or level other misconduct claims against Superior Court Judge Orlando Hudson.
Instead, the inquiry will likely focus on Cline's words and actions.
"What she thinks about Judge Hudson won't even be an issue," said James E. Coleman Jr., a professor of law at Duke University who has followed the Cline matter closely. "In fact, her claims against Judge Hudson could be true and it still could be irrelevant as it relates to this hearing, which is a focus on her conduct and whether it meets the test of being prejudicial."
Cline has raised serious misconduct claims against Hudson with other judges over the past three months. She has alleged in writing and in courtroom arguments that Durham's senior judge is biased against her and should be removed from all criminal cases in the county while the state's judicial standards commission reviews Cline's allegations.
Cline says Hudson has retaliated against her for not dismissing a murder case in late 2010. She alleges Hudson tossed the charge out without a basis in fact or the law. She also claims that Hudson then directed an effort by lawyers and The News & Observer to discredit her.
Other lawyers have attacked Cline's positions - and the language and methods she has used to present them - as misguided, not based in the law and wildly out of order. Two judges dismissed Cline's efforts, but they did not allow her to call witnesses.
Cline has sought to question Hudson under oath, and issued subpoenas last week requiring him and his assistant to appear. She has been denied access to Hudson's email messages under a provision in law that protects judicial decision-making. In recent court documents, Cline has indicated efforts to renew her claims against Hudson.
A third judge, Robert H. Hobgood of Franklin County, last month found probable cause that Cline's actions are grounds for suspension and possible removal under a rarely used state law.
Hobgood also reviewed the details of the murder case in which Cline claims Hudson first acted wrongly. Hobgood wrote that evidence supported the dismissal by Hudson.
Cline's actions at issue
Hobgood set today's hearing. The purpose is to decide whether Cline's behavior has been "prejudicial to the administration of justice which brings the office into disrepute."
Coleman, who teaches criminal law at Duke, said he expects Hobgood to keep Cline from straying too far from that question. And he said the judge will likely take into account that Cline had other avenues for her claims than to make filings against Hudson in unrelated cases.
Among the options for Cline were to allow the appellate courts to review Hudson's decisions. She could have also waited for a review by the state commission that investigates judges.
"That is one of the reasons I think the judge will be harsh," Coleman said. "She had ways to have review of what she thinks Hudson has done. The things she did are not what lawyers and officers of the court do. The system is designed to resolve issues and what she did was to go outside those avenues and act in a way to bring disrepute on the entire system. That's the focus."
Coleman had previously suggested that Cline could be subject to a contempt citation for presenting false motions to Superior Court Judge James E. Hardin Jr. Instead, Hardin issued a "public admonition" to Cline, warning her to be accurate in court filings.
A rare inquiry
The hearing procedure for the removal of a DA - which would undo the 2010 election in which Cline, a Democrat, won without opposition - is rare.
It has occurred only once before, in the mid-1990s, after a white DA in New Hanover County, Jerry Spivey, used a racial slur in a bar against a black man. A citizen effort led to the hearing, which is officially known as an "inquiry." It is not a civil suit or criminal matter.
James C. Fuller, then a Raleigh lawyer, was tapped by the judge to act as a special prosecutor against the DA in that case.
"It's not something I enjoyed," Fuller said. "We sat down and we tried to come up with a proceeding that was done in a fair manner."
Spivey would later appeal to the state Supreme Court that the inquiry wasn't fair because "the hearing consisted of a stream of witnesses who, through personal anecdotes and opinions, described in detail the history of the mistreatment of African-Americans."
The court agreed with Spivey, saying the judge "allowed the testimony to range far beyond the matters directly at issue."
But it wasn't an error that required the removal decision to be overturned, the court said. "It is presumed that (the trial judge) disregarded any inadmissible evidence that was admitted and based his judgment solely on the admissible evidence that was before him," the court concluded.
In the Cline matter, it was a Durham lawyer, Kerry Sutton, who filed the affidavit that initiated Hobgood's review.
Cline immediately requested a hearing on her effort to obtain information that she believes would support her claims. Hobgood did not specifically respond, but did not allow it.
Hobgood declined a request for an interview on how he would conduct today's hearing.
In an email message to Sutton and Cline, Hobgood wrote that he would not appoint a special prosecutor and "it is all up to Ms. Sutton to proceed. Ms. Sutton has the burden of coming forward with evidence."
Sutton has summoned as possible witnesses three officials who head state offices that represent defendants: the Durham public defender; the state's chief appellate defender; and the director of the agency that handles representation for poor defendants.
The judge said he will admit into evidence all of Cline's writings from court files. He wrote that he would not restrict Cline from offering any other "relevant" evidence.