Cline removed as Durham DA, vows appeal

acurliss@newsobserver.comMarch 3, 2012 

  • Appeal: Tracey Cline gave notice immediately of an appeal of the ruling by Judge Robert H. Hobgood that removed her from office. It would go first to the state Court of Appeals. The state Supreme Court could eventually hear the case. Timeframes for appeals decisions are not yet clear.

    Election: Under state law, an election to fill out the rest of Cline's term, which began in January 2010, cannot be held until all appeals are settled. If the appeals are over by early September, an election for a new DA could be held in November. If there is no election this year, one could not be held until November 2014. It does not appear that Cline would be prohibited from seeking re-election while she has her law license. Acting DA Leon Stanback, a retired judge, has said he will remain in the office until a successor is chosen.

    State Bar: The N.C. State Bar, a state agency that disciplines lawyers, has been obtaining documents related to Cline in an apparent investigation of her. Hobgood's ruling says Cline has "unquestionably" broken ethics rules for lawyers. He did not discipline her - a power he has. Cline could be issued any range of discipline, up to losing her law license. The bar takes action in three-month cycles but can intervene in a matter at any time. The next bar grievance meeting is April 26 in Raleigh.

    Sources: Durham County clerk of Superior Court, N.C. General Statutes, Administrative Office of the Courts, N.C. Conference of District Attorneys

Tracey E. Cline, a prosecutor who crusaded for victims and pledged to always do right, was permanently removed Friday from her office as Durham's elected district attorney after a judge found she made false and reckless attacks on Durham's senior judge, tainting her ability to seek justice.

Superior Court Judge Robert H. Hobgood of Franklin County, who presided over the removal inquiry that began three weeks ago, dismissed Cline's claims of free speech protections and found she engaged in conduct "prejudicial" to the administration of justice which brought her office into "disrepute" in court documents filed against Superior Court Judge Orlando Hudson.

Under state law, a DA who violates that standard must be removed, and Cline is the second in state history to be ousted under the rarely used procedure.

Hobgood terminated Cline's $119,305 annual salary from the bench moments after reading in open court from the 14-page order that her behavior confirmed a "lack of sound judgment."

"By recklessly making blatantly false allegations against Judge Hudson in the public record, totally lacking in factual support, attacking his morality, honesty and asserting he is corrupt, Tracey E. Cline has crossed the line of protected speech under the First Amendment," Hobgood said.

Cline, who was suspended from office in January, sat motionless and did not visibly react. The full courtroom remained silent, on orders from deputies who warned that any outburst could lead to jail time.

After Hobgood read the removal order, a sheriff's deputy handed the document to Cline. She briefly looked at it, then stood and thanked Hobgood for his "time and effort."

Hobgood said Cline had been an effective litigator for the people of Durham, "in the past."

Cline huddled with her legal team in a conference room, then left the courthouse where she has worked since 1994. She declined to make any comment.

Her lawyers filed a notice they will appeal Hobgood's decision at the state Court of Appeals. James Van Camp of Pinehurst, Cline's lead attorney, declined to comment.

Cline's allegations

Hobgood's order caps months of turmoil in Durham's justice system.

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 cases were hotly contested, and are on appeal.

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

She alleged that Hudson was behind a series of News & Observer articles published in September that raised questions about Cline's ability to get facts straight and questioned her actions in some cases. The paper and Hudson dispute his involvement in the articles.

And Cline claimed Hudson continued to take unwarranted actions against her, such as issuing delays in two other murder cases late last year.

Then, in November, Cline began alleging in legal filings that Hudson is a biased, unfair judge who does not follow the law and who makes up facts to fit his views. She wanted him removed from all cases in the county.

Across hundreds of pages, she wrote that Hudson's rulings had "raped" victims, that he had ruled with the "reprobate mind of monarch," and that he had engaged in "moral turpitude, dishonesty and corruption."

Hudson has not responded in detail, citing rules that restrict judges' comments. He generally disputes what she alleges. He declined to comment Friday.

'Out of control'

Hobgood suspended Cline, then convened an inquiry that included two days of testimony from her.

She defended all of her actions and words as "absolutely true" while acknowledging only that she should have used different language in some instances. She did not apologize, at one point suggesting that all of her words were directed at Hudson's rulings and not him personally.

Hobgood noted that she did not have anyone review her words prior to filing them, though she had discussed her concerns about Hudson's rulings with a range of people. An email message introduced in the inquiry shows that Cline filed a complaint with judicial standards officials on the same day that she made public her filings that attacked Hudson.

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

Hobgood also heard in the inquiry 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 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, who had handled two criminal cases in which Cline made the allegations against Hudson, said Friday she was thankful for the outcome. "I hope that his order clarifies things for anyone who would have lingering doubts or questions after the hearing," Sutton said.

Cline has vowed to continue in what she believes is a search for a truth not yet clear to the public, and has said she will do so "at all costs." Her top assistant prosecutor, Jim Dornfried, filed papers this week to challenge Hudson for his judicial seat in the November election.

The First Amendment

From the beginning of the inquiry, Hobgood expressed an interest in whether the First Amendment protected Cline's speech.

Cline's lawyers gave an impassioned defense of her right to use language that they said was "flavorful" and even vehement, caustic and unpleasant, all of which is protected under the law.

Hobgood singled out more than 20 of the sharpest passages from Cline's filings, and wrote in his order that most of them, "although untruthful, may well fall under the umbrella of protected speech under the First Amendment."

Still, Hobgood said, all of the passages "unquestionably" violate ethics rules for lawyers that say a lawyer cannot make a statement known to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. Cline likely faces further discipline before the State Bar, the agency that regulates and disciplines lawyers in North Carolina. Katherine Jean, the bar's general counsel, declined to comment.

But Hobgood specifically found that language by Cline in a handful of the passages was written with malice and a reckless disregard for the truth, and was well beyond any right to free speech.

Those passages were grounds for her removal from office, he ruled. They included the allegations that Hudson's conduct involves "moral turpitude, dishonesty and corruption," that Hudson was "kidnapping the rights of victims and their families, holding these rights for hostage," and that Hudson was in "total and complete" violation of the state's rules for judges.

Such words, Hobgood ruled, go "far beyond any protected speech ... and cannot be and is not supported by any facts in the record or which can be reasonably inferred from the record."

Hobgood is widely respected, the senior judge for a four-county area northeast of Durham.

Irving Joyner, a law professor at N.C. Central University in Durham, said the tightly focused ruling is among the most researched decisions he has seen from a Superior Court judge.

"It is as if an appeals court or the state Supreme Court wrote it," Joyner said.

Predecessor's removal

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, and she won the election to replace him in 2008. A Democrat, she was re-elected without opposition in 2010.

It is unclear when an election might be held to replace Cline. Any appeals would have to be resolved before an election could be scheduled.

A retired judge, Leon Stanback, has been the acting DA since Cline's suspension and said he will remain until there is a replacement.

"I'm sorry for Tracey that this has happened," Stanback said. "But we will put this behind us."

Staff writer Dan Kane contributed.

Curliss: 919-829-4840

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