Appeal of dismissed murder charge focuses on bones

ablythe@newsobserver.comSeptember 27, 2012 

— Tracey Cline was ousted from the Durham District Attorney’s office almost seven months ago, but the cases that triggered her series of stridently worded rebukes of Durham Superior Court Judge Orlando Hudson – and eventually her ouster – continue to wend their way through the court system.

On Thursday, the state Court of Appeals heard arguments in the case of Michael Dorman, a man accused of killing a woman in Durham and storing her bones in a backpack. The arguments – which sparked a legal debate among the lawyers and three-judge panel about whether human remains should be considered “evidence” or “property” – could come into play in Cline’s attempt to overturn her removal from office.

Dorman’s case was unusual from the start. The 34-year-old man was arrested in July 2010 in Orange County after law enforcement officers say they intercepted him trying to hand off a backpack containing bones to another man.

Dorman’s acquaintance told police that Dorman claimed he shot the woman with a shotgun, according to police records.

After a brief investigation, Orange County investigators determined that a crime likely had occurred in Durham and turned the case over to police there.

Dorman was initially charged with concealing bones. Eventually, the charge was upgraded and the Mebane man was accused of murdering Lakeia Boxley, 31, who had been reported missing in Durham in 2008.

In August 2011, Hudson dismissed the case, and in a 69-page order accused the Durham County District Attorney’s Office, the Durham Police Department and the state medical examiner’s office of violating Dorman’s rights to a fair trial.

The N.C. Medical Examiner’s Office examined the skull and other bones and identified them as Boxley’s based on dental records. Then after several exchanges with a Durham law enforcement officer, the medical examiner released all but a skull fragment from the remains to Boxley’s sister, who had them cremated.

Dorman’s attorney at the time objected, arguing that all the bones from the backpack were evidence that should not have been destroyed, and Hudson agreed.

The ruling was the second time in a year that Hudson had thrown out a murder charge. In an earlier case, he ordered the release of Derrick Allen, who had been convicted of killing a 2-year-old girl, saying key evidence had been withheld from the defense. The court of appeals last month reversed Hudson’s ruling and sent the case back to the trial court.

Cline complained bitterly in both cases. In legal motions, she accused Hudson of arbitrarily dismissing cases in retaliation for her unwillingness to follow his suggestion that she drop the Allen case. Her strident allegations led to her removal after a judge found, under a rarely used statute, that she had engaged in behavior that brought her office into disrepute.

Cline has appealed her ouster. Should the Court of Appeals reverse Hudson in a second case central to her allegations, it may bolster her claim for relief. It may be months before the court rules in the Dorman case.

The defense team representing Dorman at the hearing in front of Hudson in August 2011 had asked that all evidence in the murder investigation be preserved – a standard request in many Durham County cases. But the defense had not specified an interest in the remains until after the medical examiner already had released the bones to the family and cremation had occurred.

The state attorney general’s office got involved in the appeal and claimed the judge’s findings of fact were not supported by the evidence. Further, the prosecutors argued, the findings were not based in the conclusions of law.

Special Attorney General Robert Montgomery argued Thursday that the human remains were not evidence but property which could be released to the victim’s sister.

The defense team’s suggestion that the remains were evidence, Montgomery argued, would put the medical examiner’s office in an untenable position of having to decide when to keep remains and when to release them.

Typically, medical examiners record their examinations of remains and also compile reports with photos and videos that often are used by prosecutors and defense attorneys in murder trials.

“Evidence is generated from the remains. The body itself is not evidence,” Montgomery said.

Ann Petersen, the Chapel Hill lawyer representing Dorman on appeal, argued that her client’s constitutional rights had been violated and Hudson’s ruling should stand. No DNA was extracted from the other bones in the backpack, she said, nor was there any way for defense-team investigators to compare what remained with what had been cremated.

“The rest of the bones that could be multiple other people – or not even human – are gone,” Petersen said.

Though the appeals court judges did not indicate how they would rule, Judge Douglas McCullough questioned whether remains should be considered evidence that could be presented at trial.

Dorman remains in the Durham County jail pending the outcome of the appeal.

Blythe: 919-836-4948

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