Sunday, September 11, 2011

Tracey Cline's Philosophy of Justice (Updated)

[Update II, Thursday, 9.56pm: The behavior of Cline at her "town hall"/campaign rally was bizarre even by her usual standards. First, doors to the courthouse were locked when the event began at 5.30pm, because Cline appears not to have informed the sheriff deputies who handle security at the building about her plans.

Second, at least according to reports in both the H-S and N&O, Cline appears to have ranted against the N&O series without offering any new lines of defense, beyond those that already had been deemed bankrupt in the N&O series.

Third, she did make one specific claim of error against the N&O--only to be proved wrong by the relevant court transcript. Reports Joe Neff,

Cline criticized the Sept. 4 story that focused on her handling of the case of Frankie Washington.

"The story says I testified in front of a jury? Never happened."

The trial transcript indicates otherwise. The jury was called into the courtroom, Cline took the stand, testified and stepped down.

The jury was later dismissed.

Finally, and by this point unsurprisingly, Cline did not comment on what she said about the lacrosse case in her 2007 interview with Michael Biesecker. She did not respond to an e-mail from me asking for her rationale in not bringing up the interview at her . . . truth-seeking . . . event.]

[Update, Tuesday, 11.18pm: In her e-mail exchanges with the N&O, Tracey Cline demanded that the paper send reporter Andrew Curliss and various other figures to what she described as a "town hall" (actually, as she outlined it, more like a Cline political rally) to defend the paper's work. The paper's editors "respectfully" declined Cline's idea, but indicated a willingness to engage, and suggested instead that Cline and Curliss both appear on a neutral forum, such as WUNC. Cline indicated no interest in such an option, nor did she respond to the paper's repeated requests to comment on her 2007 remarks about the lacrosse case to the N&O's Michael Biesecker.

What, then, appeared in Sunday's Herald-Sun? The advertisement below.

The ad doesn't mention that the N&O already declined a "town hall" request, just as Cline appears to have declined the N&O's offer to appear on WUNC. Nor does the ad give any indication that Cline even communicated this new, date-specific "offer" to the N&O. The ad contains no indication of its funding source. Did Cline pay for it out of her own pocket? And what must the State Bar think of this bizarre move? A prosecutor holding "town hall" meetings to criticize a series that indicted her by using her own words doesn't strike me as terribly temperate behavior.]

A problem with prosecutors misleading the court and the public comes in the difficulty of keeping the “revised” story straight. In the lacrosse case, Mike Nifong experienced this problem when he discussed why he didn’t turn over all the DNA evidence to the defense. By the end of the affair, he had offered nearly a dozen (sometimes mutually contradictory) explanations.

It nonetheless was pretty surprising to see that Tracey Cline could not proceed even six minutes before offering contradictory statements on whether she advised Nifong about the case. And these contradictions didn’t even take into account whatever she told to the N&O’s Michael Biesecker in 2007; a 2008 statement from Durham attorney (and DA candidate) Keith Bishop that Nifong and Cline had met with a client of his to discuss the case; and a 2008 note from a figure inside the DA’s office, that Nifong “utilized a small inner circle of advisers, known informally around the office as his “Cabinet,’” which included Cline, and which “met at least weekly for approximately one hour prior to the regular staff meeting of all ADAs and staff. They advised Nifong on sensitive matters and undertook the most sensitive duties in the office. The laborious process of copying, reviewing, and organizing the voluminous discovery in the lacrosse case was not outsourced due to confidentiality concerns; instead it was performed by and under the supervision of, these most trusted advisers of Mr. Nifong.”


Lacrosse matters comprised only around three percent of the July 28 interview between Cline and N&O journalists. The N&O’s series speaks for itself, and didn’t depend in any way on material gleaned from the Cline interview. But the discussion, which lasted more than two hours and which was posted at Cline’s request, provided an extraordinarily revealing look into Cline’s approach to her job and her general philosophy.

Cline stated that she tells all her prosecutors that at all stages before a case goes to trial, they need to step back and look at the facts, lest they miss anything that might contradict their theory of the case. Yet, at other points in the interview, Cline made perfectly clear that this strategy does not guide her approach to handling cases. Speaking of the prosecutor in the second person, Cline implied that “true justice” was “trying every case where you know the defendant is guilty beyond a reasonable doubt.” [emphasis added]

Most prosecutors would seem to focus on cases with strong evidence of guilt, such as confessions, good eyewitnesses, DNA matches, or other compelling “evidence” to ensure a guilty verdict. And when these elements don’t exist, a good prosecutor might want to ask some hard questions about the quality of the case or whether the police arrested the right person (or, in the case of a sexual assault claim, whether a crime even occurred). But not Cline. “Courage,” to her, comes in trying other cases, “cases that do justice to the community and the victim.” [emphasis added]

In short, Cline seems to see herself as essentially a victims’ rights advocate, but one armed with the powers of the prosecutor. If she believes the victim—regardless of whether any objective evidence exists to sustain this belief—the case should go to the jury. During the lacrosse case, it had been widely rumored that Cline had instituted this policy for sexual assault cases; now, it appears, her belief-even-without-corroborating-evidence philosophy applies to all cases in Durham County.

Cline, by the way, curiously denied that her approach constitutes a philosophy. Rather, she said, “it’s the way it should be.” Take a listen:

Perhaps reflecting this philosophy of bringing cases to juries that in fact never should have been tried, the N&O uncovered data suggesting that in 2010, only 30 percent of Durham County’s felony trials ended in convictions on the felony charge; and over the past five years, Durham County had the lowest rate of convictions of North Carolina’s 10 largest counties. The N&O’s Andrew Curliss explained the paper’s methodology to Cline, noted that the figures came from the relevant statewide agency, and asked her an obvious question: was she aware of the plunging percentages in convictions? Incredibly, this data appeared to be news to the DA. But Cline’s first response was to deny the N&O’s figures (without citing any of her own). Here’s the clip:

One problem with Cline’s true-believer approach—once the prosecutor has decided, for whatever reason, that the defendant is guilty, the case must go forward, evidence be damned—is that it invariably leads to a shading of evidence, even on minor matters, to confirm the preconceived belief. Consider this brief excerpt regarding the Yearwood case (allegation of a man trying to sexually assault a 12-year-old girl, only to have the mother allegedly walk in)—but in which no DNA evidence match existed to the defendant.

The N&O has posted the transcript of the 911 call (the mother talks to the 911 operator and in the background to her daughter). But Cline believes that the mother also was talking with the alleged perpetrator in the background—a description of events that would corroborate the theory of the case that the mother walked in on the sexual assault, with the startled perpetrator continuing to lurk. Take a listen:

The N&O also has posted an excerpt of the police interview with Yearwood, in which he admitted that he was present at the house (looking for yard work) but passionately denied having done anything inappropriate with the girl. When the police arrested him, Yearwood was drunk and belligerent. But at a pre-trial conference, Cline told the judge that Yearwood was so drunk he could scarcely give a coherent statement—at best a highly misleading statement, at worst a lie.*

When asked about this behavior by Curliss, Cline simply reiterated that Yearwood was drunk (which no one had denied—the issue was whether he was so drunk as to not have been able to give a statement) before hilariously claiming that the N&O excerpt constituted not a “statement” but a “conversation” with police—as if the judge ever would have suspected that Cline was drawing such a highly technical distinction. This clip lasts a few minutes, but is quite interesting:

This is the case, by the way, in which Cline gave highly misleading statements about the nature of the DNA evidence, which contained no matches to the alleged perpetrator. Pressed by Curliss on these statements in the interview, she didn’t see that she had done anything questionable.

Cline’s true-believer approach was also on display when she discussed the Frankie Washington case (lack of a speedy trial, in which a plausible alternative suspect existed) with N&O journalists. Washington didn’t match the description initially given of the suspect. He was identified not through a lineup but instead by driving him in a police car and having the victims look at him from 20 feet away. The N&O reporters asked Cline whether this was a good ID tactic. She appeared unable to process the question, however, and, Perry-esque, simply stated that the tactic was legal:

With this highly dubious ID as her most significant evidence, Cline went to trial. And even through—as observed in the N&O series—it’s at the very least reasonable to believe that someone else, a convicted criminal, committed the crime, Cline has refused to send the available evidence for DNA testing. She reasoned that she knew that Washington was guilty. Evidence that might contradict that belief seems most undesirable, as is clear in this clip (which lasts a few minutes):

In some ways, however, the most depressing portion of the interview came in this brief excerpt, when Cline outlined the standard to which she (and her prosecutors) should be held. Always telling the truth? Upholding basic ethical guidelines? Following regular procedures? Not exactly—take a listen:

Perhaps this item will provide her re-election slogan: “Tracey Cline: Doing the Best She Can.”

*--corrected, regarding pre-trial rather than in-trial statement


Jim In San Diego said...

If it were possible, communities everywhere suffering from their local versions of Mike Nifong or Tracy Cline should hire a battalion of KC Johnsons, and turn them loose.

"Nifonged" has already become a recognized word in ordinary usage. According to the "Urban Dictionary",

"Nifonged describes the railroading or harming of a person with no justifiable cause, except for one's own gain. It is someone being taken advantage of unfairly by someone without scruples or morals."

We can now begin to define a new word, "Clined".

First try: "Clined describes the railroading or harming of a person by someone who has appointed themselves the final arbiter of the truth without consideration to verifiable facts or the rule of law"

Unfortunately, people like KC Johnson do not work for money, and cannot be found by placing an ad in the help-wanted columns.

Jim Peterson

Scot Foley said...

It's quite obvious that Durham replaced its notorious disbarred, disgraced District Attorney with another who appears to be as fundamentally misguided, and who is arguably as ethically challenged and seemingly incompetent as the hapless Nifong.

Perhaps one day Durham will see the error of its ways and begin to elect to public office individuals who understand what their actual duties are and what they should be, and how they are to comport themselves in the performance of those duties. Until then, however, Durham County will continue to be associated as much with Wonderland as with the State of North Carolina.

All is not lost, I suppose. In addition to Nifong and Cline, not to mention Gottlieb, Wilson and Meehan, among others, there are also balanced, dedicated, and effective individuals working in the criminal justice system, such as Joe Cheshire, Wade Smith, Roy Cooper, Brad Bannon, Jim Cooney, and many others. Unfortunately, not only are they tasked with carrying out their own duties but they also have to act as watchdogs for rogue prosecutors and their enablers. It's not the way the system is supposed to work, but there it is.

hman said...

Cline seems to be trying to justify her decisions and methods as a prosecutor with a mixture of, "My heart tells me where the truth is about a case", and "I need to get re-elected and to get along in the sewer of a legal culture that I choose to live in." If both parts of my summary are correct, Cline is admitting that she has the heart-based instincts of a sewer dweller.
Perry could best be translated as, "We teach abstinence education because we believe abstinence is morally superior to non-abstinence (and if adhered to will prevent pregnancy, disease, etc.) And we will teach it even if teaching it has no measurable effect on teen pregnancy - because it is the right thing to do per se. We test for steroids among all athletes and statewide we find single digit numbers of violations. But we test for them because kids really should not take steroids and we will not, as a matter of principle, give a hint of acceptance of that happening. IOWs, this is not about the money."
In ways this Cline-like; but in some ways it is different.
The case regarding the possible wrong conviction and subsequent execution - it has been discussed here for years. The forensic evidence supporting the conviction may have been crap, I do not really know. But the Governor in Tx. can do little to stop the process once it gets to his desk unless there is something clearly and dramatically wrong with the case. In that case he was not being told by the responsible sources that such problems existed.
As a matter of per capita executions Texas is by no means the highest.

Anonymous said...

Has anyone asked Cline why she did not immediately investigate Nifong for obstruction of justice and witness intimidation for his treatment of Elmostafa;

Gottlieb and Himan for putting false statements on a warrant request; and

Judge Bushfan for agreeing to convict another defendant for Nifong (intimidation)?

As DA, she could have taken all these actions without needing anyone else's consent. (No need for the DOJ or the SBI to become involved.)

And as a DA committed to "doing what's right", regardless of social class or ethnicity or gender, what other choice did she have?

Anonymous said...

Excellent post, Jim Peterson. Great series of posts, Professor Johnson. Cline should be removed by the State Bar.

Anonymous said...


I see you have coined a new phrase: Perry-esque. I assume its meaning is to denigrate or to ridicule. Correct?

Allow me to offer a suggestion. Take a few moments and listen to any public conversation with either Joe Biden or Al Gore (both VPs). Then come back and tell me you are concerned about the quality of Perry's remarks.

You're a good man, KC. You're just a dyed in the wool liberal. That's a shame.

Ken - Dallas

jim2 said...

I apologize for a tangent here, but remember the 88 and how the pot banging was orchestrated?

It appears that a similar thing may have happened yesterday in Wisconsin.

The "Vice Provost for Diversity and Climate Change" - and that appears to be his actual title - sent out the following "Important Invitation" for an "urgent meeting" to University of Wisconsin-Madison students.

The meeting is described in the following:

Here is the quotation that reminded me of the 88 and pot-bangers:

“Don’t wait for us to show the way,” Williams said to students, who were already assembling poster board to make signs against the CEO president’s report and visit.

Here is what happened next:

A small excerpt:

"Unfortunately when escorting meeting attendees out of the hotel through a private entrance, staff were then rushed by a mob of protesters, throwing employees to the ground."

RighteousThug said...

Cline's ad in the HS.

What. A. Beyotch.

More of a bint, actually.

Anonymous said...

Is Cline a Communist?

QuadDog said...

I've been lurking the lacrosse case since the beginning. I predict that Cline will continue to dig the hole she is in for some time to come. To quote more than one hooligan, " you can't make this $hit up". I have my popcorn. Entertain me Tracy!

jay said...

This is off subject, but is ANYTHING at all actually happening in the civil suit?

Anonymous said...

"This is off subject, but is ANYTHING at all actually happening in the civil suit?"

When the entire establishment of a state (to include its courts and judiciary) are scared to death of having the full truth made public, it sometimes takes a bit of a struggle to get that truth out. (MOO)

Anonymous said...

After the working day is over, Mike Nifong and Tracy Cline walk into a Durham bar, and Cline shouts, "We're here, get it over with!"

The bartender says, "What?"

Nifong then looks the bartender straight in the eye and calmly announces, "The News&Observer told us we need to be here right now."

Not knowing anything about what the former prosecutor was talking about, the bartender drew back the blinds and pointed through the window at a pub across the street, "Are you sure the N&O wasn't talking about that bar?"

"No," they both shouted together, "dis bar."