T. Cline, Esq., Paragon of Ethics (Cont'd.)

[Update, Tuesday, 5.11am: The third and final part of the series portrays a "minister of justice" who routinely flouts not merely the Supreme Court's Brady requirement (which mandates that all exculpatory evidence be turned over to the defense) but also North Carolina's open file discovery law (which mandates that all material be turned over to the defense). As with the first two parts of the series, Cline blames everyone else (the police, unnamed people in her office, procedures in her office that she claims to have changed, poor cooperation in one case with the FBI) for her failure to uphold legal ethics.

Viewing the articles through a lens most favorable to Cline, the series portrays a prosecutor who sees her role not as a "minister of justice" but as the representative of victims of crime, and who believes that her sole role as elected D.A. is to obtain convictions, by whatever means necessary. Through a more realistic lens, the series shows Cline to be fundamentally unethical, a prosecutor who believes that the rules don't apply to her.

One final note, on the similarities and differences between Nifong and Cline. Anyone who followed the lacrosse case will recognize the similarities--the willingness to mislead judges, bizarre rationalizations of negative DNA evidence, withholding exculpatory evidence while simultaneously (and sanctimoniously) proclaiming in public about having turned over all files.

But there's a very significant difference, as well. Cline, in this series, comes across as someone whose basic goal is to win at all costs, while breaking myriad rules in the processs. But there's no indication that she ever interfered in a pre-indictment police investigation--her rule-breaking always appears to have begun after indictments occurred--or that she has exploited a case for immediate political gain, as Nifong did. So there's something of a difference in motive, even as both chief prosecutors exhibited fundamentally and deeply unethical approaches to their position.]

[Update, Monday, 11.07am: The second part of the series should send chills to anyone who followed the lacrosse case. The case involved a claim of sexual assault against David Yearwood, in which then-ADA Cline misrepresented DNA findings to the court and withheld evidence from the defense attorney, all while she was claiming to go above and beyond the legal requirements by providing "open-file" discovery. Sound familiar?

A couple of passages to capture the flavor of Andrew Curliss' exposé, which I recommend in its entirety: "Cline told a judge that 'contact was insufficient' to capture Yearwood's DNA. She said the tests couldn't determine whether saliva found in the child's vaginal area belonged to the girl or to Yearwood. But the crime lab's work was clear about Yearwood: No forensic evidence, such as hair or fluids, connected him to the alleged crime, according to interviews and SBI records."

More: "Cline said she believes that she spoke accurately but that she relied in some instances on information that was available to her but is not in any record."

And a Nifongesque touch: "Long-settled law in the United States requires that defendants receive information the state gathers if it could be favorable to the defendant or if it would undermine, or impeach, a witness. Cline said in hearings during the Yearwood case that she went beyond that, giving 'open file' access. But records Yearwood's lawyers have not previously seen have recently emerged. The SBI's lab report and notes, as provided to Yearwood for his trial, are 12 pages. The SBI says its file is 71 pages. Investigators scraped Yearwood's fingernails, but he has no reports about testing on them. In one hearing, Cline said the police had dusted for fingerprints in the home, mentioning as many as 20 prints. But she said they couldn't be evaluated because they weren't 'workable.' No reports about fingerprinting were provided to Yearwood."

Tracey Cline was going to be Nifong's second chair if the lacrosse case had gone to trial. It's quite clear, based on the above, that she would have had no problems with his unethical handling of the case. The question now is how much she advised him, in private conversations, to follow his unethical course.]

The voters of Durham County elect a district attorney with a record of public, ethically-dubious behavior. Now possessed of more power than ever before, the “minister of justice” only intensifies the unethical conduct.

The two sentences above could apply to either of the last two district attorneys elected in Durham. Mike Nifong is, fortunately, disbarred, and can’t harm people anymore. Tracey Cline is, alas, still dispensing her brand of “justice” in the Triangle.

A blockbuster story, by Andrew Curliss, in today’s N&O shows Cline to be, at best, utterly indifferent to legal ethics; at worst, she is someone determined to break the rules on a consistent basis in order to win in court. The article’s thesis: “In her quest to convict those accused of serious crimes, Cline has misstated facts to judges in other cases, a News & Observer investigation shows. She has not provided evidence favorable to defendants, as is required under the U.S. Constitution, state law and ethics rules that govern lawyers. . . . Cline's conduct is under scrutiny for similar behavior in at least five cases other than Washington's that are in various stages of the courts, according to documents and interviews.

Today's article focuses on the Court of Appeals dismissing the conviction of Frankie Washington, on 6th amendment grounds. (That’s extraordinary in and of itself—though technically all defendants have a right to a speedy trial, the courts almost never enforce those rights.) The article shows that, in handling the case, then-ADA Cline was at best negligent and at worst lied outright on the witness stand (Washington’s attorney had called her to testify to ask why it took so long for the case to trial). Cline tried Washington on a procedurally dubious eyewitness ID, without forensic evidence, and without looking seriously into evidence that another man, a convicted criminal named Lawrence Hawes, actually committed the crimes.

Even now, almost incredibly, Cline refuses to ask the SBI lab to compare the DNA evidence in the case to Hawes’ profile, which they have on file. Why? "It was clear to me that Frankie Washington was the person who did it."There was never any doubt in my mind that he committed the offense."

Evidently, Tracey Cline “knows” the truth, evidence be damned. Does that sound familiar? But what more could be expected from a "minister of justice" who invited Mike Nifong to her inauguration?

Curliss also interviewed several jurors from the case, all of whom didn’t know the charges had been dismissed. They recalled that when deliberations had begun, considerable disagreement had existed, but that they had eventually based their decision to convict largely on the basis of eyewitness ID. Yet the police had never even included Washington as part of a lineup—instead, two witnesses, sitting in the back of a police car, got a look at Washington from a distance of 20 feet. Incredibly, Cline seemed to have no problem with sending someone to jail based on such police conduct: "Frankie Washington has very smooth skin around his eyes, extremely, very distinctive eyes," she said. "It was clearly a legal show-up."

The State Court of Appeals, more reasonably, wrote, "We are troubled by the Durham Police Department's use of a highly suggestive show-up procedure to identify defendant as the perpetrator of this crime."

The Court of Appeals opinion overturning Washington’s conviction is brutal in its description of the DPD’s behavior and Cline’s indifference to legal norms: “The circumstances of this case are unprecedented,” the court wrote, in that “even with more than four-and-one-half years of time to prepare its case, the State failed to completely analyze the evidence as ordered.”

More important, “the record contains overwhelming evidence that the actual reason for the delay in this case was not a neutral factor, but rather, was repeated neglect and underutilization of court resources on the part of the Durham County District Attorney’s Office.” Evidence was “not submitted to the SBI lab for analysis until 4 August 2005, which was more than three years after these items were collected.”

“The record reveals that during the prosecution, the State was given notice of evidence tending to establish the guilt of another person already in custody, yet the State failed to request that the SBI make appropriate comparisons of the evidence to this person.”

The opinion noted the Court’s concern with “the fact that the victims in this case were permitted to participate in several in-court identifications nearly five years after the date of the crime.”

And then the opinion zeroed in on Cline: “At trial, Assistant District Attorney Cline testified that it can take ‘years’ for the SBI to fully test an item. This assertion, however, is simply unsupported by the evidence of record.” Cline’s stunning response to the Court? “In an interview, Cline did not recall[!!] her testimony at the trial."

In a series of interviews and e-mails with Curtiss, Cline offered varying explanations/excuses for her behavior. “I would not sit in a courtroom and lie. I wouldn't," she said. "That is not who I am. And anybody that knows me will tell you that.” That a person who invites to her inauguration the only DA in Durham's history convicted of lying to the court, and who then cut the salaries of the people in her office most associated with championing legal ethics, can claim to be a truth-teller to the core is almost laughable.

On another occasion, Cline seemed to blame the system, almost as if violations of constitutional rights are inevitable and unavoidable, and a prosecutor doesn't have any independent role in upholding ethics: “Every day we go to court - or in every jurisdiction in North Carolina, South Carolina, probably all the 50 states - there's evidence that's thrown out because of constitutional violations. There's confessions that are thrown out. There's evidence that's suppressed. Everything. This happens every day because of a violation of someone's constitutional rights. And, to be sure, sometimes the guilty people go free."

A few broader points:

(1) Events in Durham since 2006 are Example A of the dangers of elected district attorneys. Based on the results of the 2006, 2008, and 2012 elections, a majority of Durham voters are indifferent to electing chief prosecutors who are, in turn, at best indifferent to adhering to basic legal ethics. The result is almost predictable—a D.A.’s office run by people who can’t tell the truth will invariably trample on defendants’ rights.

(2) Washington’s fate—and the fates of the other defendants who have suffered from Cline’s unethical behavior (and that of the DPD)—brings into relief the folly of how groups like the NAACP and supposed progressives such as Irving Joyner and Diane Catotti approached the lacrosse case and its aftermath. Rather than realize that it was likely that the behavior of Nifong (and Cline) and the DPD likely had threatened the rights of other defendants, they chose to function as Nifong apologists—thereby losing the chance to push for a full-scale review of how the DPD and the prosecutors associated with the lacrosse case had behaved in other cases.

(3) Will the State Bar inquire into Cline’s behavior?