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Wednesday, February 29, 2012

Judge to consider Cline's removal, or dismissal of case based on free speech

Posted by on Wed, Feb 29, 2012 at 3:25 PM

Attorney James Van Camp represents Durham District Attorney Tracey Cline.

For live coverage of Cline's hearing, follow @indyweek and #TraceyCline on Twitter.

Attorneys for suspended Durham District Attorney Tracey Cline renewed a request Wednesday that a judge dismiss a petition calling for Cline’s removal from elected office. When Cline filed court documents last fall criticizing the rulings of a Durham judge, her speech was protected by the First Amendment to the U.S. Constitution, one of Cline’s attorneys argued.

Cline was defending criticism of the District Attorney's office, argued Patrick Mincey, an attorney with Van Camp Meacham & Newman in Pinehurst. "She could have stayed silent. She could have done nothing," he said. "But Tracey Cline, as a last resort, spoke out on what she perceived ... was an abuse of justice." By shedding light on the perceived misconduct of Senior Resident Superior Court Judge Orlando Hudson, Cline's actions have actually strengthened the system, Mincey argued.

Durham attorney Kerry Sutton disagreed that Cline's speech was protected. In January, Sutton filed a petition to have Cline removed. She says Cline's lengthy written accusations, using language she described as "unjust and abusive," damaged public confidence in the court system in Durham.

Cline's writings were not a debate, quarrel or discussion, Sutton said. "This was merely [Cline] blasting out there her version of what she believed happened," and Hudson did not have an opportunity to respond. Cline knows there are strict rules on what lawyers may say about judges, and she knowingly violated them, Sutton argued.

Superior Court Judge Robert Hobgood denied the other efforts Cline’s attorneys made to have the case dismissed, including arguments that the state law allowing a district attorney to be removed is “vague." But Hobgood said he would consider the free speech arguments, and will decide whether the case should be dismissed on those grounds as part of his final decision.

Hobgood could announce a ruling as early as Friday, he said. He’ll decide whether Cline, 48, has brought Durham’s justice system into disrepute because of written requests to have Hudson removed from her cases due to judicial misconduct. Cline used bold, sweeping language in the motions, saying Hudson has presided with the "reprobate mind of a monarch," and that a decision he made to dismiss sexual assault charges in one case was tantamount to raping victims all over again.

Cline has said in her testimony that although she regrets the harsh tone of the hundreds of pages she filed, every statement in the documents is true.

After hearing evidence on the motion to dismiss the case on free speech laws, Sutton and Cline's lawyers both summarized for the judge whether Cline should or should not be fired.

In his closing arguments, Cline's primary attorney, James Van Camp, focused not on the statements Cline made, but on her work as the county's top prosecutor, her character and her reasons for making statements against Hudson. Van Camp called her somewhat idealistic and sensitive, and someone who has a "real sincere desire and understanding of right and wrong."

She's someone who takes her job seriously, and worked to improve Durham's court system by better communicating with police on cases, trying to bring better case management practices to Durham, and cutting the number of pending murder cases in half from more than 80 to more than 40. Sutton appeared to nod in agreement as Van Camp listed some of Cline's achievements.

But then, Van Camp said, Cline found herself being accused of misconduct in recent cases Hudson had handled. Some of Hudson's rulings in high-profile sex assault and murder cases last year say Cline mishandled or suppressed evidence. Hudson's order in one case even contends that Cline conspired with other state officials to have a murder victim's remains cremated before defense attorneys could examine them, Van Camp said.

Cline tried to resolve the issue with the judge repeatedly, outside of court, Van Camp said, to no avail.

"I cannot imagine the despair ... that a person must go through when somebody who you respect like a mentor basically accuses you of being fraudulent, a co-conspirator, destroying evidence intentionally, of prosecutorial misconduct when there is no basis or evidence for any of those findings," Van Camp said. Cline did what she believed was the right thing, he concluded.

Sutton asked the judge not to consider the reasons Cline may give for her actions.

"It's not the motive, it's not what caused her to do this," Sutton said. "It's not her justifications, her reasoning, her beliefs. It's conduct,"—actions that have threatened the integrity of Durham's court system, she said.

Cline gave few actual facts in her court filings, and Cline's statements that she was attacking Hudson's rulings and not the judge himself are "disingenuous," Sutton said. Cline was trying to stop Hudson from ruling against her, Sutton argued.

"For her to use her office to intimidate the actions of a sitting judge is unconscionable," Sutton said.

She called Cline's accusations that Hudson was conspiring against her with a defense attorney and The News & Observer to smear her reputation a "vast, sad, paranoid conspiracy theory."

If the judge doesn't remove Cline, the conflict between Hudson and Cline will continue, Sutton said, "until one of them loses."

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Judge could announce decision as early as Friday. If Cline is removed, she may appeal.

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