Tracey Cline's recent attack is in character

Other acts didn't get same notice

acurliss@newsobserver.comMarch 4, 2012 

  • The state agency that regulates and disciplines lawyers, the N.C. State Bar, has not acted on several complaints filed about Cline's conduct, at least two pending since 2009. The agency has the power to sanction Cline, including by taking her law license. On Friday, Superior Court Judge Robert H. Hobgood, in removing Cline from office, ruled that she had "unquestionably" violated ethics rules for lawyers.

    Bar officials have obtained Cline's various filings, but decline to comment, citing confidentiality provisions.

Tracey Cline could not admit she was wrong.

On a Friday morning in mid-January, Cline stood in a cramped private hallway on the fifth floor of the Durham County Courthouse. Arms folded, Durham's district attorney was inches from Bill Thomas, a longtime Durham lawyer. Thomas represented Orlando Hudson, a judge for more than two decades, who had been attacked relentlessly for months by Cline.

A hearing was about to begin on Cline's latest claims. But behind the scenes, one of her crucial allegations was unraveling. Hudson had not thrown out a murder charge before he heard from all sides in a case, as she had alleged. Cline had failed to check the source of her allegation, the time-stamp on a court document.

The clock that controlled the stamp was wrong. Now, word of the error had reached Cline.

Cline cupped her hand near her mouth and suggested to Thomas that she would seek to sidestep that part of her claim by asking a judge for permission to "continue" any discussion of it.

"Tracey, no," Thomas recalled telling her. "This needs to stop. What you need to do is withdraw your motion entirely, and apologize to the judge and end this."

Cline told him she wouldn't.

"I'm totally convinced I'm doing the right thing," she said, according to Thomas.

Thomas: "You are destroying your career. Please stop."

It is a single moment, but it is telling. The whispered conversation captures what propelled Cline in two decades of putting rapists and murderers behind bars: She was a prosecutor who would not back down from anyone. She acted with fierce conviction when she believed she was right. She was aggressive, too, and often framed her pursuit of justice as advocacy for crime victims.

It also shows the reasons she was permanently removed from her job Friday - a stunning inability to get facts straight and an unwillingness to change course when confronted with reasons to do so.

Cline, 48, did not speak in court that January day in Durham, watching as a judge dismissed her claim in a matter of minutes.

She is out of office now because of her words and actions against Durham's senior judge - lengthy filings filled with vitriolic language, unsubstantiated allegations of corruption, tales of a conspiracy with The News & Observer and other accusations of misconduct that have been obliterated by three judges.

Cline stands by it all, telling Superior Court Judge Robert H. Hobgood last week that "what I recorded in those motions was absolutely true."

The flawed behavior that cost Cline her job wasn't new. It has been displayed in a range of criminal cases she handled over the years, according to an examination of court documents, transcripts, interviews and news reports.

But the action she took against Hudson was in full public view, and it was aimed at a judge, not a criminal defendant.

"This was done in the bright light, and so we know all about it," said Irving Joyner, a law professor at N.C. Central University. "But patterns of conduct by prosecutors - and, yes, of misconduct - are not always apparent. In the courts, every case is its own. There is no question that, to the extent patterns and finding them are a question, it is a deficiency in the court process. It's most often left to voters."

Cline has not commented since her removal, except to thank the judge who ruled against her for his "time and effort."

Denial of testimony

Of the hundreds of cases Cline handled as an assistant prosecutor and, since 2009, as the elected district attorney, one stands out for its display of her strong beliefs, stubbornness and conviction.

Cline had specialized in prosecuting sex crimes and, by early 2007, she had a man named Frankie Washington in her sights. Washington was a handyman accused of a break-in, robbery, kidnapping and attempted sexual assault near Duke University.

He would be convicted on what the state Court of Appeals later called a troubling and "suggestive" police eyewitness identification procedure that led to the charges.

Washington, from the start, proclaimed his innocence and demanded DNA tests. During court hearings and again at Washington's trial, Cline blamed more than three years of delays in testing on a backlog at the State Bureau of Investigation's lab. At the trial, called by Washington's attorney as a witness, Cline said: "We both know how the SBI tests things. Sometimes it takes months, sometimes it takes years."

But records and testimony from crime lab agents were clear that wasn't the reason for the delay. The evidence hadn't been sent to Raleigh for testing. Cline was responsible.

When the testing was finally done, it showed that fingerprints, hairs and DNA from the crime scene did not match with samples taken from Washington.

In 2008, the appeals court threw out Washington's conviction because he did not get a speedy trial. It cited Cline for "repeated neglect" and said Cline's "assertion" in her testimony was "unsupported by the evidence of record."

The court also singled out an alternate suspect who had committed similar crimes in the same neighborhood before and after Washington's arrest.

Even after that ruling, Cline refused to test the evidence against state databases to see if it would match anyone else. Cline said there was no reason to run other tests because she is certain she got the right guy.

She also sought to distance herself from her own words on the stand. After a detailed N&O report on the case last year, Cline convened a courthouse forum to denounce the reporting as an "injustice."

That night, she insisted she had never testified in the case, even though she had.

'Where's the justice?'

In Friday's ruling, Cline was found to have repeatedly made false and reckless statements. Prior to that, judges - including Hudson - had said Cline didn't get her facts straight while speaking in court or writing in court documents, a violation of ethics rules for lawyers. She has also faced questions about why important evidence wasn't turned over to defendants as required by law.

Jurors, defendants and lawyers have at times expressed dismay at prosecutions Cline brought or supervised.

One involved Leon B. Brown, a man whose case was in the news 10 years ago for the stark differences between what Cline contended and what a jury found.

Brown was charged in an alleged sex attack in which a woman claimed a man broke into her home, bound her and assaulted her, according to court documents and news coverage of the resulting trial.

Brown's lawyer argued in court in 2002 that the case was literally unbelievable - no DNA or hairs collected from the crime matched Brown, and the accuser told police she thought a family member, who was white, was the assailant. Brown was black.

The jury foreman, Howard Williams Jr., said after Brown's acquittal that jurors didn't understand how Brown spent months in jail waiting for the trial.

"We all wondered what we were doing here," he told the Herald-Sun of Durham after the verdict. "The evidence was non-existent... It made no sense to us. Where's the justice?"

Cline insisted "we had the right man."

"There's no doubt in my mind," she told a reporter after the verdict.

Losing confidence

Lawyers in 2001 made similar, strenuous arguments to a judge that Cline was pressing ahead without any evidence or basis for an alleged gang rape at N.C. Central University. Two men were charged, and 15 other people were allegedly involved.

Within two weeks, the accuser told police she wouldn't press charges and would not go to court. Cline tried to persuade her to continue.

A judge, not Cline, dismissed the charges.

David Ball, a Durham resident and consultant who specializes in studying juries, testified at Cline's removal inquiry that "emotional" decision-making by Cline undermined confidence in the justice system.

"I worry when personal emotions seem to drive public, official motions," Ball testified. "How do I know that that's not also driving the selection of who to prosecute and who not to prosecute? How do I know that's not driving the selection of which evidence to put on and which evidence to possibly conceal? ... If you're not playing exactly by the rules and you're in that position, the confidence is just not there."

Washington's lawyer, Bob Ekstrand of Durham, said his client saw it and felt it.

"Ms. Cline was a person who, for a living, would accuse people of wrongdoing on behalf of the state," Ekstrand said. "It should blow your mind that, in the face of evidence of mistakes that would give anyone a reason to pause, she instead redoubles and becomes more unequivocal. This is dangerous behavior for anyone, much less a prosecutor."

'Mistakes were made'

Carol Tavris, a Los Angeles social psychologist who has researched and written about the behavior and decision-making of prosecutors, said studies show the human brain, when sorting out conflicting beliefs and actions, will engage in a powerful act known as "self-justification."

It can keep people from admitting they are wrong and can be more powerful and more dangerous than an explicit lie, she said in an interview and in a 2007 book she co-authored, "Mistakes Were Made (But Not By Me)."

People will convince themselves they are correct even when they are not, she said. It happens in everything from bad marriages to buying a car that costs too much.

Self-justification is especially concerning in the justice system, Tavris said, because authorities often view themselves as "good guys" doing the "right thing."

Tavris said Cline was likely faced with "dissonance" in the face of unfavorable rulings and questions about her work, which leads the brain to "self-justify" decisions and actions.

"It's really, really, really hard to face the reality that you screwed up," she said. "When we have a view of ourselves as good, competent, ethical, honest people and we are now confronted with evidence that we did something that was incompetent, unethical, immoral or harmful, we have two choices. We can fess up - say, 'Oh, my God, look at this evidence, what did I do? How can I make amends?' Or, we deny."

In the removal inquiry, Cline did get to speak about her allegation, based on the time stamp, that Hudson decided a case early. She was faced with affidavits from court clerks, testimony and a courtroom transcript that contradicted what she said.

Cline did not yield, saying broadly that she knew the judge decided the case early.

"Are you willing to admit that it's possible that you're wrong about what Judge Hudson did?" a lawyer asked her.

Cline said no.

A battle over Allen

By the end of last summer, Cline's actions were under increasing scrutiny in a growing list of cases.

A man convicted of rape mounted an appeal based on Cline's conduct. Lawyers for two inmates convicted of murder accused Cline of unfair prosecutions in cases that remain on appeal.

And Hudson tossed out two murder charges.

In one of them, Hudson cited a range of problems in the prosecution of Derrick Allen, accused in the death of a 2-year-old girl in his care in 1998. The case bounced around in the courts for years and, in December 2010, was set for a hearing in front of Hudson. The SBI's work in the case was an issue, as was other evidence not provided to Allen's defense.

Cline wrote in court filings that she had private discussions with Hudson in which she says he directly told her to dismiss the case.

"Judge Hudson told me that a lot of eyes were going to be on this case and that I should not try to defend the SBI," Cline wrote in an affidavit. "He continued to say that I should dismiss the case. ... I told him that I could not dismiss it."

Hudson has generally disputed all of Cline's claims against him, but has not responded to specific accusations. Separately, Cline has filed a complaint with the state agency that reviews judicial behavior. Hudson has said he welcomes that review, typically kept secret unless charges are brought against a judge.

In his 46-page written order dismissing the charges against Allen, Hudson described the state's actions in the case as deceptive, egregious and fraudulent. He named Cline in two paragraphs, saying she and another prosecutor had not ensured that important evidence was provided to Allen.

Cline refused to accept that Hudson's ruling implicated her, insisting she did nothing wrong.

On March 11 last year, the day after Hudson filed the dismissal, Cline called the judge's cellphone, something she's done so rarely she can count the times on one hand.

Cline then called The N&O, saying Hudson's order "shocked" her. She said Hudson acknowledged his order contained errors about her - and that he would soon fix them.

Reached by phone a few minutes later, Hudson did not agree.

"Tracey is still responsible," Hudson said. "It's where the real emphasis should be, and of course she doesn't think it should be on her."

No beef with judge?

The N&O had begun asking about other cases involving Cline, and in April she contacted the newspaper to request a meeting about the inquiries, which she described as an attack on her.

"I have been very upset and have lost sleep and feeling physically sick," she wrote in one email.

At a meeting with two editors and a reporter in late July, Cline complained that the coverage of the Allen case had not been fair to her. Executive Editor John Drescher answered her concerns, pointing out information from articles that Cline maintained had not been printed. The paper would later post online the full audio of the interview at Cline's request.

Cline retreated in her criticism at the end of the meeting, saying she did not mean to "nitpick" the coverage.

Drescher asked her: "Is your beef with us, or with Judge Hudson?"

Cline didn't hesitate.

"I'm not ever going to have a beef with the judge," she said.

Dodging friends

In early September, The N&O published a series of articles uncovering conduct and describing the range of criticisms mounting against Cline. It was called "Twisted Truth: A Prosecutor Under Fire" and focused on misstatements made by Cline in courts or questions about evidence that hadn't been turned over to defendants, threatening their cases.

Within days, Cline took out an advertisement in Durham's Herald-Sun newspaper, demanding that an N&O reporter show up for a forum to answer for coverage she called "character assassination."

The N&O suggested a radio discussion that would be heard by a larger audience.

Cline appeared at the forum and spoke for about an hour, repeating her courtroom arguments from the cases or offering her views of the decisions. In doing so, she would make a series of misstatements, describing cases incorrectly or denying facts that were undisputed in court records or transcripts.

But the point was clear: Cline believed the appeals, rulings and coverage were all unfair.

The N&O asked Cline to put any of her concerns about its coverage in writing. She said she was already working on it.

The writings cover more than 600 pages and would reveal deep anger - directed toward a judge.

Misconduct alleged

Cline testified that she wrote out her allegations at home and in the office, day and night, and showed them to no one before she put them in public files. Cline warned her staff what she was about to do, asking them to keep it secret. She said she knew it "was going to be rough."

"She had to have had considerable doubts about what she was doing," Hobgood said Friday from the bench.

While she worked on her allegations, Cline filed requests for Hudson's email messages.

She sought records of financial payments made by the state to a lawyer quoted in the newspaper series.

And she went after other matters related to the newspaper series - including seeking the prison visitation records of inmates who were featured in the coverage. That request, made in a motion to a judge, contained false information. Cline would receive a "public admonition" over it from her old boss, now a judge.

Then, on Nov. 17, Cline filed the first two of her written attacks on Hudson, describing the cases covered by the newspaper and disparaging Hudson for unspecified wrongdoing and allegations that he had caused the "media mayhem." In one passage, she wrote that his decisions had "raped" victims. In another, Cline - the chief law enforcement official in Durham - asserted that the senior judge was "corrupt."

A former chief justice of the state Supreme Court, Burley Mitchell of Raleigh, said he'd never seen anything like it. A Duke law professor, James E. Coleman, said it would all but certainly lead to sanctions in the slow-moving world of lawyer discipline.

She filed more papers the next week.

Plenty of people tried to stop her.

Butch Williams, a prominent Durham lawyer connected to Cline and Hudson, spoke with retired Judge David LaBarre several times in that period. The focus was on whether Cline would change her approach.

Williams told LaBarre that he couldn't get Cline to hear alternatives and that she had become "hellbent."

"I just can't get her ear," Williams told LaBarre in one conversation, according to LaBarre. "She won't listen."

Williams declined to comment.

In the removal inquiry, the state's appellate defender, Staples Hughes, read lengthy excerpts of Cline's writings into the record.

At the end of his testimony, Hughes looked up and said, "I do not, after reading that pleading, trust Ms. Cline's judgment in prosecuting cases in this judicial district. I think it utterly undercuts her credibility and the trust that the public should feel in their prosecutor."

A losing argument

In the months after she filed her attacks on Hudson, Cline was often on her own.

In two hearings where different judges considered her complaints, she was sharply rebuked and her filings were cast as "woefully inadequate" or without any basis in fact.

By the time of the removal inquiry, however, Cline had a lawyer, James Van Camp of Pinehurst, who argued that Cline deserved more time to prepare her case, as "due process" in the state and U.S. constitutions required, and that the removal law itself was unconstitutional.

In the end, the removal inquiry hinged on a different constitutional question: Was Cline's speech against Hudson protected by the First Amendment?

"There was a lot of irony in that," said Lisa A. Williams, a Durham lawyer who has clashed with Cline on many cases, including several mentioned in Cline's allegations. "All these defendants in all these cases have been arguing their constitutional rights were violated. They've all said it. And, now, she wanted everyone to pay attention to the Constitution, too."

Cline's actions against Hudson were beyond the First Amendment, Hobgood ruled, and "not supported by any facts in the record or which can reasonably be inferred from the record."

She had displayed "actual malice" and "reckless disregard for the truth," the judge ruled.

Hobgood read his order out loud, for nearly an hour, in a quiet courtroom.

Toward the end, Hobgood said Cline had lost the confidence of the attorneys and the public and could not remain as Durham's district attorney.

The charges brought by Cline, Hobgood said, "when viewed with objective reasonableness, confirm a lack of sound judgment on her part."

Curliss: 919-829-4840

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