This morning, Jim Hardin begins his first full day in his return stint as Durham district attorney. WRAL reported that Nifong’s wife, Cy Gurney, was spotted yesterday cleaning out the desk of the ex-DA.
Wake County District Attorney Colon Willoughby told the N&O that “Jim has the unique background and talent to get this office back on the right course.” Gov. Mike Easley added that he wanted Hardin to “take stock of the office, the personnel and its practices.” While Hardin—imitating President Brodhead—announced that “we’re going to move forward,” implementing the goals outlined by Willoughby and Easley would require him to take a hard look at the two members of the office, other than Nifong, who played a role in the lacrosse case.
The first such figure, of course, is Linwood Wilson. Hardin has stated that he will make no personnel changes during his interim tenure, but the idea that the person who executed the December 21 frame could still be collecting a public salary is highly troubling. (Liestoppers has added a counter to its blog so readers can determine, down to the second, how long Wilson has remained employed under the Hardin regime.)
But the Nifong ethics hearing also revealed that one other person in his office played a much larger role than previously known: Assistant District Attorney Tracey Cline.
For many months, rumors had existed that Cline had pushed Nifong to champion the case—partly from an extreme “victims’ rights” viewpoint, partly for political reasons. But Cline had been able to assume a position of plausible deniability. That stance is no longer sustainable.
1.) The NTO
One of the most dramatic moments of the Nifong ethics hearing came when Doug Brocker, co-counsel for the State Bar, and the disgraced DA discussed the March 23, 2006 non-testimonial order. Under repeated questioning from Brocker, even Nifong implied that the order was excessively broad, admitting that he had never seen such an order in his entire career.
The NTO was signed by Durham assistant district attorney David Saacks. But testimony of Detective Ben Himan established that: (1) the legal advice for the order came not from Saacks but from Cline; (2) Saacks signed the order as a courtesy to Cline, who was out of the office on March 23, the day the order was filed.
Nothing has come to light in the last 15 months to challenge the prophetic analysis of Durham attorney Alex Charns from March 24, 2006: “I can’t imagine a scenario where this would be reasonable to do this so early in the investigation. It seems unusual, it seems over-broad, and it seems frightening that they’re invading the privacy of so many people.”
Take the most blatant example of abuse from the NTO, involving Brad Ross:
- At the end of their voluntary statements given to police, each of the captains provided a lengthy list of people they remembered seeing at the party. None listed Ross.
- Ross, who has blond hair and weighs 190 pounds, didn’t even remotely resemble any of the three “attackers” described by Crystal Mangum on March 16, 2006.
- And, it turns out, during the entire time that the party occurred, Ross was in Raleigh, with his girlfriend.
On what legal basis, then, did Cline believe that Brad Ross could be considered a suspect in the case? Is this the kind of legal reasoning that she employs in all her cases? If not, why did she depart from her normal practice in this case?
2.) The “No-Drop” Policy
During her testimony, North Carolina Innocence Inquiry Commission executive director Kendra Montgomery-Blinn rationalized Nifong’s decision to drop the rape charges but keep those relating to sexual assault. Nifong, she suggested, was merely implementing the office’s “no-drop” policy, in which prosecutors take all sexual assault cases to trial—even if they know they have no chance of winning—provided the prosecutor believes the defendant is guilty. In a case such as the lacrosse one, with the prosecutor operating under what Lane Williamson correctly termed “self-deception arising out of self-interest,” the “no-drop” policy is disastrous.
There might be many societal reasons why victims of sexual assault do not report the crime. But surely it cannot be contended that once they do so, the law is stacked against them. In North Carolina, as in most states, a jury can convict based solely on the word of the accuser and her identification—meaning that a judge can’t dismiss on grounds of insufficient evidence, even in a case (like this one) where the defendant can prove he was someplace else at the time of the alleged crime.
So if there is any “crime” in which we need prosecutors to exercise their required discretion, it’s sexual assault. Yet the Durham DA’s office—in which Cline serves as the lead sexual assault case prosecutor—has adopted a policy of effectively abandoning even the fiction of prosecutorial discretion.
3.) Cline as Co-Counsel
During the hearing, as Nifong attempted variations on the “novice” defense, he was asked a perfectly logical question: how could someone who claimed to know so little about sexual assault cases prosecute such a high-profile rape case? Well, responded Nifong, he wasn’t handling the case alone: Tracey Cline was going to try the case with him.
That admission raises a host of questions that Hardin should compel Cline to address:
- Did she approve of the procedures used in the April 4 lineup?
- Did she approve of the decision to seek an indictment against Reade Seligmann even though police didn’t even know if Seligmann attended the party?
- Did she approve of sending Linwood Wilson to interview Crystal Mangum on December 21?
- Did she approve of Nifong’s decision to treat Mangum’s December 21 story—which included a wholly new timeline and description of the “attack”—as reliable?
If the answer to any or all of the above questions is “yes,” why should Cline remain in the employ of the Durham DA’s office?