Durham DA dismisses case that played role in removal of Tracey Cline

acurliss@newsobserver.comMarch 16, 2012 

Durham’s new district attorney has dismissed the criminal case that triggered a chain of events that led to the removal this month of Tracey Cline from her office as the elected DA.

Indecent liberties charges against a man accused of sexually assaulting a family member in the early 1980s have now been dismissed, records show. The state is also dropping an appeal that was under way to preserve other sex offense charges in the case that were dismissed in January by Superior Court Judge Orlando Hudson.

The accuser and the defendant do not live in Durham; but the crime occurred in the county when the child was 5 years old, authorities alleged. The case was unusual because it was based on allegations from the accuser’s “repressed memory” of a single incident in the 1980s that surfaced in 2009.

Cline’s replacement, former Judge Leon Stanback, said it was in the interest of justice to end the matter.

“We just don’t have a case,” Stanback said in an interview, saying recent rulings had made a prosecution difficult. He declined to comment on whether the case should have been brought at all.

The case was thrust into the spotlight in January by Cline, who filed papers seeking to remove Hudson from presiding over any hearings about it.

It would be the last in a series of filings Cline made that alleged Hudson was biased against her and should be removed from hearing cases until her claims were reviewed by judicial regulators.

The defendant’s attorneys, Kerry Sutton of Durham and Stephen Lindsay of Fairview, had been seeking a dismissal of the case, describing in court papers a harrowing scenario in which their client at one point was given 40 hours to decide whether he should plead guilty to crimes and avoid jail – or else face charges that, if proved, would result in a mandatory sentence of life in prison. The man had always turned down plea offers, maintaining he was not guilty.

Cline wasn’t involved in the case directly; it was handled by one of her assistant prosecutors.

But Cline still made arguments that Hudson would use the case to retaliate against her for not dismissing a murder charge in a separate 2010 murder case.

Claims dismissed

Sutton and Lindsay challenged what Cline was doing, arguing that her effort to remove Hudson was outside the law.

They also filed papers seeking to have Cline held in contempt of court, arguing that what she was doing deserved sanction. They say the preparation related to Cline’s filings in their case to remove Hudson has cost their client more than $20,000 in legal research and preparation.

On Jan. 13, a judge tossed out Cline’s effort to remove Hudson from the molestation case, dismissing her claims as not factual in a hearing that lasted seven minutes. The judge, Henry Hight, did not rule on the contempt request.

The ruling cleared the way for Hudson to preside over the case.

Sutton and Lindsay then renewed their contempt arguments in front of Hudson, who also declined to take action.


But Hudson did rule on the case itself.

Hudson found that the DA’s office had acted with “vindictiveness” in pressuring the defendant to plead to a crime and also did not provide information about possible expert witnesses to the defendant as required by law. As a result, Hudson limited the DA’s office from being able to use an expert witness. The defendant’s lawyers had argued that an expert on repressed memory was required in order for the case to go forward, but the state had not agreed.

Hudson dismissed several sex offense charges. But he kept in place the two indecent liberties charges.

The DA’s office gave notice of an appeal, seeking to reinstate all the charges based on an abuse of discretion by Hudson.

Five days later, Sutton filed the affidavit that launched the removal inquiry of Cline’s conduct.

Cline was removed from office early this month. A judge found that attacks by Cline against Hudson were false, reckless and made with “actual malice.” Her conduct was prejudicial to the administration of justice and brought her office into disrepute, requiring her removal, the judge found.

Sutton’s removal affidavit and her later arguments in court highlighted what Cline had done to insert herself into her client’s case, which Sutton called a relatively obscure, low-level felony case. Lindsay, who practices in Asheville, was the lawyer who cross-examined Cline during the removal inquiry.

On the witness stand in the inquiry, Cline said the man had confessed, a charge his lawyers deny. Cline testified that she believed in the molestation case and its merits.

Stanback’s action

On Tuesday, the state’s position changed: Stanback’s office filed papers to end the appeal.

“While the State maintains its position that it did not act with prosecutorial vindictiveness in violation of the defendant’s constitutional and statutory rights, the State’s position is not sustainable in that proving that there was an abuse of discretion related to the Court’s ruling is unlikely,” says the appeal withdrawal, signed by assistant DA Roger Echols.

In a separate filing on Wednesday, Echols gave notice that the remaining charges were dismissed because there is “insufficient evidence to warrant prosecution.”

“Given the court’s ruling regarding the State’s use of an expert, the State will not be able to use the testimony of the victim,” Echols wrote. “Therefore, (the) State cannot meet its burden of proof.”

Sutton and Lindsay said their client broke down in sobs at the news. His wife had left him and his family members are split up about the allegations.

“I think that once people with different perspectives looked at this, they realized that it would not be a good use of state resources and it wasn’t in the interest of justice to continue,” Sutton said. “It does bring a close to this terrible, horrible chapter in a man’s life.”

Lindsay said it “never completely made sense to me” why the DA’s office under Cline pursued the allegation of decades-old conduct the way it did.

And he noted that it played a big role in Cline’s removal.

“This is the one that popped it,” Lindsay said.

Curliss: 919-829-4840

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