Cline permanently removed from Durham DA office

STAFF WRITERMarch 2, 2012 

Tracey Cline was immediately and permanently removed from her office as the elected district attorney in Durham by a judge who found she had made statements with malice and reckless disregard for the truth against chief Durham Superior Court Judge Orlando Hudson.

Judge Robert H. Hobgood found that Cline's conduct in court filings was "prejudicial to the administration of justice" which brought her office into "disrepute."

Under state law, any DA whose behavior violates that standard shall be removed from office.

Cline is the second consecutive elected DA in Durham to leave mid-term. Former DA Mike Nifong was stripped of his law license in 2007 over ethics violations committed while seeking to prosecute false accusations that three Duke lacrosse players had raped a woman. Cline had been Nifong's chief assistant.

Cline first won election in 2008. A Democrat, she was re-elected without opposition in 2010. It is unclear when an election might be held to replace Cline. She has the right to appeal, and that would first have to be resolved.

Hobgood suspended Cline from her position on Jan. 27, issuing a "probable cause" ruling that Cline had crossed the line in unrelenting attacks on Hudson that already had been tossed out of court by two different judges. Cline also was admonished along the way by a third judge, who warned her to be accurate in her court filings after finding she presented false motions to him.

Hobgood convened an inquiry that included two days of testimony from Cline, who defended her actions.

Hobgood also heard from lawyers who said Cline was "out of control" or could not be trusted as a prosecutor, and from a jury expert who said Cline's actions lessen the public's confidence in the courts.

The decision was up to Hobgood as a finder of fact, much like a jury acts in a criminal case. Hobgood is a widely respected judge, the senior judge for a four-county area northeast of Durham. He has resolved a range of sticky issues in the courts over the years, including the redistricting court battles last decade and deciding the powers of the state's elected schools superintendent. Cline was adamant in testimony that she has done nothing wrong. She did not apologize for her actions against Hudson but said she should have chosen some words more carefully.

Cline's allegations are that Hudson is a biased, unfair judge who does not follow the law and who makes up facts to fit his views.

In lengthy filings, Cline said Hudson's rulings had "raped" victims, that he had ruled with the "reprobate mind of monarch," and that he engaged in "moral turpitude, dishonesty and corruption." The filings include hundreds of pages.

Hobgood found that much of what Cline said enjoyed protections under the First Amendment.

But the language about "corruption," an accusation that Hudson was "kidnapping the rights of victims and their families" as well as an allegation that Hudson was in "total and complete violation" of the code of judicial conduct were beyond free speech, Hobgood ruled.

"Tracey E. Cline has lost the confidence of attorneys and the public necessary to continue as an effective District Attorney for Durham County," Hobgood said, in reading his order from the bench.

He said her allegations "confirm a lack of sound judgment on her part."

Hobgood specifically found that language in a handful of passages was written with malice and a reckless disregard of the truth in alleging a sweeping but unspecific conspiracy by Hudson.

These paragraphs were cited by Hobgood as grounds for Cline's removal:

* Hudson’s “misconduct involves more than an error of judgment of a mere lack of diligence; this Court’s actions encompasses conduct involving moral turpitude, dishonesty and corruption.”

* “The District Attorney may personally accept the planned purposeful personal attacks of this Court [Judge Hudson], but there are some sacrifices that are too great for the District Attorney to accept, kidnapping the rights of victims and their families, holding these rights for hostage until the prosecutor plays the game would bankrupt the credibility of our court system and Justice will not play that Game.”

* “The intentional malicious misconduct of this Court is covered by the robe, and rationally relied on by reporters and the public. Then media mayhem - another prosecutor withheld evidence; this shameful disgraceful conduct is unimaginable, but true with this Honorable Court. This is gross misconduct.”

* “This Honorable Court is in total and complete violation of the North Carolina Code of Judicial Conduct and ... will continue to violate the North Carolina Code of Judicial Conduct with regard to the rights of others, no regard of the constitutional protections of the victims of crime, and no regard to the simple difference between right and wrong.”

* “(F)or the root of this unjustified contempt to be conceived in the womb of justice, a judge, sworn to be fair and impartial, destroys the dignity of the office of this Honorable Court and for those who use this Court for special situations outside the lines of right and wrong; don’t hide your dirty hands; and to those who have seen, and know, yet turn a blind eye, acknowledge your hands are covered with the blood of justice. And be ashamed.”

Cline did not visibly react at the removal order. The courtroom, the benches full, was silent.

Cline rose and briefly thanked Hobgood.

Hobgood thanked Cline for being an effective litigator "in the past."

Hudson has not responded in detail to what Cline has said, citing rules that restrict judges' comments. He disputes what she alleges.

Hudson had ruled against Cline in dismissing two murder cases in 2010, issuing lengthy orders that found she and other state agents violated the rights of defendants. Both are on appeal.

But Cline called the dismissals a purposeful plan to discredit her.

Cline alleges that Hudson was then behind a series of News & Observer articles published in September that raised questions about Cline's methods and actions in some cases. The paper and Hudson disputed that.

And Cline says Hudson has continued to take actions against her that are unwarranted, such as issuing delays in two murder cases late last year.

Cline testified that she filed court documents to remove Hudson from criminal cases and stop him in what she believed was the only right things to do. She said she had no other choice and had exhausted her options.

All of Cline's claims are in dispute; at the removal inquiry, many things Cline has said were refuted by documents.

The inquiry was initiated by Durham lawyer Kerry Sutton, who said in a closing argument that she could not rebut every single thing Cline has alleged in a range of cases -- and doesn't believe she had to. Sutton highlighted a half dozen instances in which Cline's testimony was cast in doubt.

"I picked up a few things ... I was able to say, well, look, that may not be correct," Sutton said. "Here's one example of how we didn't get the whole truth from Ms. Cline as it relates to those cases."

Sutton argued that Cline had clearly lost her patience, but that it was not an excuse to tie up court time and resources when the courts already have ways to deal with conflicts. Cline should have let appeals of the case dismissals run their course, Sutton said. Cline should have let the judicial standards commission review the issue, Sutton said.

An email message introduced in the inquiry shows that Cline filed a complaint with judicial standards on the same day she made public her filings that attacked Hudson.

Sutton said the focus should not be on anything but what Cline has done.

"It's not the motive," Sutton argued. "It's not what caused her to do this. It's not her justifications, her reasoning, her beliefs. It's her conduct."

The only process for removing a DA in the midst of a four-year term is spelled out in a rarely used state law that says top prosecutors who engage in, among other things, willful misconduct, habitual intemperance, willful failure to perform their duties, and prejudicial conduct that brings disrepute on the office, shall be removed.

Lawyers for Cline argued that law is unconstitutionally vague and that Cline's actions were protected from sanction as free speech under the First Amendment. The judge did not agree.

The removal law has been applied to oust a DA once before, in the mid-1990s, after a white DA used a racial slur against a black man in a bar. The state Supreme Court upheld the law and the removal.

More often, judges have faced scrutiny after engaging in various types of misconduct, from fixing orders improperly to using harsh language, for violating the same standard of "prejudicial conduct" which brings "disrepute." Once, a judge who advised a lawyer to use his "big boy voice" in court was found to have crossed that line. But judges are not automatically removed for violations; most have received lesser sanctions, such as censure, for such conduct.

Cline immediately filed a notice of appeal. She has said that she did the right thing, even knowing it could lead to sanctions. Separately, the N.C. State Bar has been gathering records related to Cline in an apparent investigation of her.

And, Cline has said, her efforts to seek the "truth" will continue "at all costs."

On Wednesday, Cline's chief assistant prosecutor filed papers to run for election as a judge for the seat now held by Hudson, promising the issue will be discussed in Durham at least through Election Day in November.

Sutton said after the hearing that it was clear the judge gave the issue "serious" thought and she hopes that his written order clarifies any lingering doubts by anyone who questions if Cline's removal was necessary.

News & Observer is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service