NC Appeals Court to hear arguments about ousted Durham DA

ablythe@newsobserver.comFebruary 12, 2013 

CLINE01.NE.120511.ASR

Former Durham District Attorney Tracey Cline

SHAWN ROCCO — 2012 News & Observer file photo Buy Photo

— Tracey Cline was ousted as the Durham district attorney nearly a year ago through a rare legal procedure.

On Wednesday, attorneys fighting for the out-of-work prosecutor will try to persuade a state Court of Appeals panel that her rights to free speech and due process were violated in the ouster.

“It is a very unusual process,” said James Van Camp, a lawyer from Pinehurst representing Cline. “I would say it’s unique. It is our position that it is deficient in procedural due process.”

Cline, who was first elected as Durham’s district attorney, was pushed out March 2 after a judge found she made statements with malice and reckless disregard for the truth against Orlando Hudson, Durham’s chief resident Superior Court judge.

Cline’s stridently worded comments in court documents came after The News & Observer published a series of articles highlighting prosecutions by her that were under scrutiny in various levels of the courts.

In an unusual challenge to a judge, Cline charged that Hudson had retaliated against her after she refused to drop a murder case tainted by questionable SBI crime lab reporting procedures.

Hudson dismissed the case, a ruling that has since been reversed by the state Court of Appeals.

Cline filed a series of court documents in 2011 describing Hudson’s dismissal of the case as “an extreme abuse of power” and the beginning of a “corrupt” smear campaign against her.

Cline contended then that Hudson was working in league with the N&O to “demean the district attorney at all costs.”

Her attorneys elaborate on that more in a brief filed several months ago with the appeals court.

Her focus was on the cases of:

• Derrick Allen, who pleaded guilty in 1999 to the sexual assault and murder of a 2-year-old. Allen was seeking relief after problems with the SBI’s collection of evidence had been exposed.

• Michael Dorman, waiting to be tried for murder after investigators found a backpack containing human remains.

• David Yearwood, who was seeking relief from his prison sentence for raping a child by challenging SBI lab practices.

Cline, according to her attorneys, was troubled by Hudson’s decisions to dismiss the cases against Allen and Dorman and the wording he used in lengthy written orders.

On numerous occasions, according to Cline’s attorneys, the prosecutor tried to discuss her concerns with Hudson. She enlisted a mutual friend and fellow attorney to act as an intermediary at one point.

Cline contended that Hudson was making decisions about the scheduling of cases without prosecutors present. She was troubled that information she believed to be under seal was showing up in media reports.

After personal conversations and mediation through mutual friends proved fruitless, Cline, according to her attorneys, sought other options. “She began to research bias and disqualification statutes,” her attorneys said.

Cline eventually filed a complaint against Hudson with the Judicial Standards Commission, the state organization tasked with investigating complaints of judicial misconduct. In September, Hudson was cleared after the commission found no probable cause to begin any disciplinary hearings.

Cline knew when she filed her complaint against Hudson that an investigation could take months, her attorneys said, so she included a barrage of complaints in court filings, the words that eventually led to her ouster.

“The record shows her speech was made directly in response to what she perceived to be a real and actual harm to her office, to her staff, and to her constitutional duty,” Van Camp and Patrick Mincey, a Wilmington lawyer also representing Cline, stated in a brief filed with the appeals court.

The Durham courthouse became a tense place, according to lawyers who worked there, and Kerry Sutton stepped forward with a petition to oust Cline from office.

The process, rooted in a 1973 statute, had been used only once before, when Jerry Spivey, a New Hanover County district attorney, was ousted from office in the 1990s for making a racially charged statement in a Wilmington bar.

Cline’s attorneys plan to challenge the process on several fronts in their appeals court arguments.

They contend that she was not afforded enough time to prepare for a case that is neither criminal nor civil. They also contend the law is deficient in such cases.

“In this case, here’s a person who is potentially removed from office, removed from her job, and you don’t have any of the procedures you would in a criminal or civil hearing,” Van Camp said.

The state law governing the case, Van Camp said, does not outline who carries the burden of proof – Sutton, who alleged that Cline’s behavior “brought the office of the Durham County District Attorney and the entire Durham County justice system into disrepute,” or Cline, who disputed those claims.

Van Camp also argues that Cline’s comments should be protected by free speech rules.

Burton Craige, the attorney representing Sutton in the appeals process, declined to comment about his arguments.

But an Appeals Court filing related to the case signed by Craige stated that her removal from office was warranted and the decision was made within the confines of state law.

Craige wrote that Cline went beyond any protected speech, pointing out that her filings covered more than 500 pages that he contended included “wild” and “unsubstantiated” accusations of corruption, dishonesty, moral turpitude, malicious misconduct and abuse of power.

“Cline’s only argument in defense of her conduct is that she genuinely believed her accusations were true,” he wrote. “Cline’s declarations of good faith should be given no credence. Cline had no evidence that Judge Hudson is corrupt or that he orchestrated a conspiracy to attack her office.”

Efforts to reach Cline this week were unsuccessful.

Cline has sued the N&O, claiming the newspaper’s “Twisted Truth: A Prosecutor Under Attack” investigative series, published Sept. 4, 5 and 6, 2011, “contained completely false statements, partial facts coupled with false and or misleading information, (and) facts omitting relevant and material information which would explain or present” her “in a positive light.”

Blythe: 919-836-4948

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