“Please make it stop.” These were the words going through my head as I heard District Attorney Tracey Cline explaining to Judge Carl Fox why she had filed a motion to have Judge Hudson removed from criminal cases in Durham. She is not making sense. She is incoherent, unprepared, and embarrassing herself. She tried to argue cases she had not read, and the cameras were rolling. I have known Ms. Cline for years, and have tried cases with her since 1998. I have known her as a prosecutor who cares deeply for the victims of crime and who works hard to prosecute people  who hurt others.

How did she go from capable assistant district attorney to this?

I know Judge Orlando Hudson. In 1989 he became a Superior Court Judge serving until 1995 when he became the 14th Judicial District’s senior resident judge. Prior to serving on the Superior Court bench, Judge Hudson served as a District Court Judge for five years, an Assistant District Attorney in Durham, an Assistant Public Defender in Fayetteville, and practiced law for two years with a private firm. When I came to Durham in 1998, Judge Hudson had a reputation for being pro-prosecution. Many defense attorneys complained that the prosecutor, Jim Hardin, engaged in judge shopping by getting the most prominent cases set before Judge Hudson. Even Judge Labarre complained Judge Hudson was a favorite trial judge of the prosecution. (http://www.wral.com/news/local/story/134209/)

I remember filing a motion to have Judge Hudson recused from one of my cases after he made what I considered to be some inflammatory statements against my client shortly before we picked a jury. As it turns out, I was just young and too sensitive, and Judge Hudson gave my client a fair trial. (We won).  I found that Judge Hudson is a vigilant protector of constitutional rights. In one case he dismissed a DWI against my
Hispanic client when we showed that a highway patrol officer engaged in racial profiling. (http://www.wral.com/news/local/story/102884/ ). He also ruled that a search and seizure of the entire Cheek Road apartment complex was unconstitutional. (http://www.mapinc.org/drugnews/v02/n1308/a07.html ). He dismissed a serious assault case when Durham City Police officers disposed of evidence improperly that could have been tested by the defense. (http://www.wral.com/news/local/story/151982/ ).  I was involved in each of these cases, and remember thinking how easily the Judge could have reached a different conclusion.

I admire Judge Hudson for his courage to protect Constitutional rights. A judge who is willing to throw cases out when rights are violated is an important check and balance in our system. As strong as Judge Hudson was on the protection of Constitutional rights, he was just a strong against criminals in jury trials. As much as I want Judge Hudson to hear my constitutional claims, I do not want Judge Hudson as my trial judge.

In retrospect, it is instructive to see how District Attorney Jim Hardin handled the situation when Judge Hudson was dismissing cases due to Constitutional Violations. Instead of taking it personally, or attacking Judge Hudson, Jim Hardin appealed some of the rulings to the Court of Appeals and let the system sort out the cases. Jim Hardin took the hit, and moved on. He understood that he could lose one day in front of Hudson, and then win a case like Michael Peterson the next. He did not whine about losing, take it personally, and then go on the offensive with personal attacks against one of our State’s most respected jurists.

Jim Hardin is now a Judge, and will be hearing cases next week in which Ms. Cline filed motions for confidential records of defendants. It will be interesting to see how he handles his role as protector of the rights of poor defendants in the face of potential prosecutorial misconduct.  Will he give the prosecutor a pass, as a former prosecutor himself? Will he come down hard on the prosecutor for abusing her power? He has the authority to take her law license, issue a reprimand, or otherwise take disciplinary action against Ms. Cline.  He also is her former employer. He hired her as a young Assistant District Attorney. I am sure he pained by her difficulties.  Jim Hardin is in a tough spot.

I have tried some cases with Jim Hardin as prosecutor and Jim Hardin as judge. I have to say Jim Hardin is adapting well to his role as judicial referee. It is hard for players to give up their zealous advocacy, for the calm objective robe of the judicial referee. I have to admit that Jim Hardin works very to try to be fair, follow the law, and seek justice. I may disagree with his decisions, as anyone might disagree with a referee’s call on the field. But I admire his integrity. I wonder what he will do with Ms. Cline’s mistake.  Evidently she made misrepresentations in motions seeking to get confidential records from defendants in jail. If she did this it would be a serious ethical violation. Lawyers have an ethical duty of candor to the tribunal, which requires lawyers to tell judges the truth. This is one of the highest duties of any lawyer. Prosecutors are held to an even
higher standard of ethics because of their special power. I doubt Judge Hardin will take ethical action against Ms. Cline, but I anticipate that he will express strong displeasure and give her a strong warning.

Ms. Cline has taken her losses too personally. She has conflated her own interests with the interests of the victims and the interests of the community. She thinks that her vindication will help Durham. But she has caused more harm than even the Duke Lacrosse/Mike Nifong mess. It is bad to withhold evidence. It is bad to make false representation to the Court. It is bad to mis-speak to the press. But Ms. Cline is doing irreparable harm to Durham by personally attacking Judge Hudson.  And it is not just that she is attacking him. The manner of her attack shows that she is over her head and not behaving in a professional manner. Just look at some of the language she used in her motion to have Judge  Hudson removed from criminal cases in Durham:

  •  “The District Attorney alleges, upon personal knowledge and upon information and belief, that the malicious conduct of this Honorable Court is in total disregard of the facts and law
  • “Itis exemplified by an arrogant appropriation of the legal rights of others, and a purposeful plan to plunder the privilege of his power for personal objectives and / or the objectives of his friends and associates, in that this Honorable Court has allowed his
    social and / or other relationships to influence this Court’s judicial conduct.”
  • “Inappropriately attempting to intimidate, control, and dictate the discretion of the District Attorney and rewarding this refusal
    to conform, by manufacturing unwarrantedand unsupported allegations of prosecutorial misconduct is not only a malicious act and an extreme abuse of power,but, this Court’s deliberate and premeditated intentional malicious and arrogant actions destroy the integrity of this entire judicial system and this abuse and misuse of power without responsibility
    is in total disregard for the legal rights of the citizens of Durham County, the victims, family of victims, witnesses, law enforcement and any one who truly seeks Justice.”
  • “Such abuse of power, without legal consciousness of right and wrong, having a total and reckless disregard of the law, and a reprobate
    mind of a monarch
    , aims to destroy and will destroy, the heart of our justice system if left unchecked.”
  •  “THEREFORE in light of the continual and constant circumstances created by this Honorable Court which attack the integrity of the
    court system
    while it aims to attack the character of the District Attorney, and this Court’s need to alienate some and elevate others, severely weakens the legal rights of all and symbolizes the sovereign institution of a monarch.”
  •  “That the District Attorney alleges, upon personal knowledge, and upon information and belief, that the premature decisions of this Court based on unethical actions have transformed the criminal justice system in the Fourteenth Judicial District into a  monarch, wherein no guilty plea is safe or untouchable even when there has already been a hearing on a Motion for Appropriate Relief”

In a massive 295 page filing, Ms. Cline rambles on and on in an incoherent manner. She accuses Judge Hudson of being a “monarch” and attacking the “heart of our justice system.” Her language is extreme, outrageous, and inappropriate. Her motion does more to hurt the integrity of our justice system than any ruling by JudgeHudson.

And so I come back to my original thought. “Please make it stop.”  Evidently the State Bar is reviewing her behavior. (http://www.newsobserver.com/2011/12/10/1701281/state-bar-inquires-into-five-of.html )  But that process will take a long time  in my estimation. Someone could file a removal action pursuant to N.C. Gen. Stat. §7A-66.  Under that statute a D.A. can be removed if a judge determines that:

(1)    Mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent;

(2)  Willful misconduct in office;

(3)  Willful and persistent failure to perform his duties;

(4)  Habitual intemperance;

(5)  Conviction of a crime involving moral turpitude;

(6)  Conduct prejudicial to the administration of justice which brings the office into disrepute; or

(7)  Knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal, as defined in subdivisions (1) through (6)hereof.

I believe Ms. Cline has violated sections 2 and 6 of this statute and could be removed if someone files a removal action.  I filed such an action to have former Public Defender Robert Brownremoved, and know that this is a dramatic and difficult step. He resigned before the hearing on this action. (http://www.wral.com/news/local/story/122594/) I think she should resign. I think the Governor should appoint someone quickly outside the Durham District Attorney’s office to run the office and start the process for rebuilding the prosecutor’s office. It is so sad to watch this meltdown,because I believe Ms. Cline had a great career ahead of her and that she has endedthat career by over-reacting and going on the offensive when she should have started preparing for the next fight.  It is never too late to do the right thing. She should withdraw her motions, apologize for her mistakes, resign, and begin preparing for her bar defense of her license.

I am frustrated, angry, and sad about the melt down of the Durham Judicial System. There are so many people working very hard, for little pay, to try to make justice in Durham: assistant district attorneys, law enforcement officers, public defenders, probation officers, administrative assistants,  judges, clerks, bailiffs, drug treatment counselors, court counselors. We are dedicating ourselves to doing our part in the system to reach good results in tough cases.  And so it is painful to watch these limited resources wasted on what has become Ms. Cline’s defamation suit against Judge Hudson. We stand by and watch one pillar of our judicial community, the District Attorney, accuse another pillar of the judicial system (Chief Resident Superior Court Judge) of being a “monarch” intent upon destroying the “heart of our judicial system.” The clerk, the bailiff, the investigators, the judge, the court room, the time, the paper are being flushed down the commode of personal vindictiveness. “Please make it stop.”

Scott Holmes

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Follow Scott on Twitter at CScottHolmes