Tuesday, March 13, 2012

News & Notes

Some recent items that crossed my desk:

Last Sunday’s
N&O featured a penetrating piece by Andy Curliss—featuring new reporting about a case about which, it seemed, we knew most everything—analyzing the rise and fall of ex-DA Tracey Cline.

Among other nuggets, Curliss recounts a conversation between Bill Thomas and Cline, just after it was discovered that a central element of Cline’s allegations against Judge Hudson (that he decided a case before hearing all the evidence) was, in fact, based on a faulty timeclock at the Durham court.
"Tracey, no," Thomas recalled telling her. "This needs to stop. What you need to do is withdraw your motion entirely, and apologize to the judge and end this."

Cline told him she wouldn't.

"I'm totally convinced I'm doing the right thing," she said, according to Thomas.

Thomas: "You are destroying your career. Please stop."

Cline, of course, did not stop.


Curliss also had an excellent article summarizing what exists in the public record regarding the former DA’s involvement in the lacrosse case—discussing which she (at best) stretched the truth and (at worst) outright fabricated during her initial 2008 campaign. Cline’s . . . inattention . . . to the truth was not enough to deter The Independent, which hailed her as “a great attorney who has already shown that she can manage a large caseload,” a woman who “could be an excellent role model for the young African Americans caught in the system.” (For good measure, the paper also falsely asserted that Cline had put “to rest questions that she was involved in Nifong's lacrosse prosecution.”) In the same editorial, the paper’s editors reminded readers that they had endorsed Nifong in 2006.

At no point since 2008, even as Cline’s career imploded, did the editorial board see fit to reconsider its judgment, at least in public.

It’s not clear when the next election for Durham DA will be (the timing depends on Cline’s appeals). But whenever it is, one thing is clear: Durham voters should vote for whoever is not endorsed by The Independent.


The N&O also had a somewhat odd story about a play written by Paul Downs Colaizzo, who reveals, “The Duke case was the phenomenally scary and dramatically universal inspiration for my play.” (In the interview, the author does not refer to false accuser Crystal Mangum by name, instead describing her as the “alleged victim,” an early sign of the sort of message his play seems to send.) In the Colaizzo play, the false accuser is white, some sexual contact between the false accuser and the accused occurs, and no reviews that I have seen mention either a demagogic district attorney exploiting the case for re-election or the accused student’s faculty doing to same to advance their on-campus goals—differences that raise questions about what sort of similarities could possibly exist between the lacrosse case and the play. For reasons that are not clear, N&O correspondent Rebecca Ritzel did not appear to question Colaizzo on any of these items.

But here’s Colaizzo explaining the connection between the play and the case to the N&O: "These cases happen where the victims are telling the truth, and athletes get out of control on college campuses. The idea of power goes to their head, and women become objects instead of people. Things may have turned out one way (in Durham), but the ambiguity is where the universality of the Duke case lives."

In other words: the Duke case wholly contradicted his preconceived notions, but Colaizzo appears to have seen no reason to reconsider those preconceived notions. Was Wahneema Lubiano a consultant to the play?


Finally, one important, if underappreciated, theme of the lacrosse case was the importance of judicial independence. As in many states, in North Carolina, judges are elected. And the two judges in the case who had to face Durham voters—Ron Stephens and Kenneth Titus—made rulings that (purely coincidentally, they doubtless would say) looked the other way about Mike Nifong’s abuses. Stephens infamously even testified on Nifong’s behalf as a character witness in the criminal contempt trial, though he didn’t join his colleague Marcia Morey on the witness stand in the ethics hearing. Only when the case moved to a judge—Osmond Smith—who didn’t have to fear the electorate that nominated and elected Mike Nifong (and would subsequently elect his chief assistant) did we see fair rulings from the bench.

The job of judges should be to uphold the law, and the state and federal constitutions, even when doing so (as occurred with Judge Smith’s actions) runs against majority opinion. But too many judges, like Stephens and Titus in the early stages of the lacrosse case, take a different approach to their duties.

The importance of judicial independence amidst a hostile electorate was reaffirmed this week by the Kennedy Library, which announced that former Iowa state supreme court judges Marsha Ternus, David Baker, and Michael Streit will receive the 2012 Profile in Courage awards, "presented annually to public servants who have made courageous decisions of conscience without regard for the personal or professional consequences."

In 2009, the judges joined a unanimous opinion of the Iowa Supreme Court legalizing same-sex marriage--a clear call under the constitution of the state (which has unusually detailed guarantees of individual rights), but a deeply unpopular decision among some segments of the electorate. In response, a local politician named Bob Vander Plaats (last seen facing accusations that he was soliciting money to facilitate his endorsement in the Iowa GOP presidential caucus) organized a campaign to oust the trio from the court; and for the first time in Iowa history, Supreme Court judges were not retained by a popular vote.

The Library indicated that the judges were chosen for the prestigious award "in recognition of the political courage and judicial independence each demonstrated in setting aside popular opinion to uphold the basic freedoms and security guaranteed to all citizens under the Iowa constitution."

Alas, whether it's in Durham or in Des Moines, it's hard to win an election campaigning on the platform of judicial independence for the purpose of upholding basic rights.


Jim In San Diego said...

re: Judicial Independence


As you are aware more than we, "judicial independence" is a politically charged concept.

We all want the judiciary to be independent when it suits our politics. Otherwise, not so much.

In California, we formerly had a very independent Justice of the Supreme Court, Rose Bird. Her resume: a liberal lawyer who had never been a judge, until getting a political appointment to be Chief Justice of the California Supreme Court.

California had a death penalty. Yet, 64 times out of 64, Chief Justice Bird voted to overturn the death penalty in cases before her. In 1986, the voters here turned her out of office. Justice Bird had exercised her judicial independence by substituting her personal beliefs for California law.

Was this "judicial independence"? Or, something else?

Same sex marriage is another highly politicized issue. It is cast by some as an "equal rights" issue. Others see it as a matter of definition. (i.e., a same sex union may be something else, and may be perfectly legal, but it is not a "marriage" - a cow does not become a horse, by statute).

In Iowa, a lower Iowa court found Iowa's marriage laws violated the "equal protection" clause of the Iowa constitution. Iowans, as in most states, had never considered that "equal protection" meant men could marry other men, etc.

So, some Iowans proposed a constitutional amendment defining marriage as between one man and one woman. However, Iowa Senate Majority Leader Michael Grontal refused to bring the proposed amendment to a vote. (Mr. Grontal is leader of the DLCC, the national organization to elect Democratic state legislators.)

This political decision (here comes politics again) deprived Iowa voters of the opportunity to have their voices heard on this charged cultural issue. To overturn Iowa's definition of marriage on the basis it violated "equal rights" was, to many, as much a cultural decision as a legal decision. Hence, the recall vote.

So, whether you view same sex marriage as an equal rights issue, or an issue of definition depends upon your culture. Culture pushes a lot of hot buttons, for everyone. That is, cultural issues are always likely to be highly politicized.

On such issues, we applaud judicial independence when the justices go our way. Otherwise, as I say, not so much.

Back to Durham.

Jim Peterson

Anonymous said...

Is Titus a Communist?

Mark Orgel said...

There is an angle to the Tracey Cline story that I haven't seen mentioned yet, that being at the former Durham DA is mentally ill. She certainly needed to be removed as District Attorney. In fact, compared to Mike Nifong's prosecutorial malfeasance, Cline's misconduct demands that she be subject to immediate disbarrment.

At least in Nifong's case, one could clearly grasp the motivation behind his (albeit criminally unethical) behavior. He needed the Duke Lacrosse case to bolster his re-election chances. Nifong was like a Texas Hold'em player who raises a big bet before looking at his cards. To continue the metaphor, he was pot committed, but was holding 2-7 off suit.

Cline's behavior, on the other hand, belies no such motivation, except her need to be right. Wikipedia defines a delusion as "a belief held with strong conviction despite superior evidence to the contrary". Tracey Cline, then, is demonstrably delusional. Also, when reading some of Cline's court filings, it struck me that she was using an unusual number of alliterations. "To design a distorted decision...", "...this continued constant failure to follow the law for personal privilege to punish the prosecutor..." and "The district attorney may personally accept the planned purposeful personal attacks of this court..." are but a few examples. This sort of forced alliteration, as well as Cline's run-on sentences and her admitted delusions raise, in my mind, the distinct possibility that she may be suffering from a manic psychosis.

I should mention that I am a family physician, not a psychiatrist. I do know, however, that delusions are a sign of psychosis, and that overuse of alliteration has been observed in people suffering from manic psychoses.

I believe that Tracey Cline's actions as documented here are indefensible, and she should not be practicing law at all, let alone serving as a district attorney. I also believe, however, that her actions may be the result of illness rather than willful misconduct. I hope that someone involved will order a psychiatric evaluation for her.

Anonymous said...

Is Colaizzo a Communist?

mikelau said...

The N&O piece by Curliss really shows just how well Cline would fit in with the Group of 88. Regardless of the irrefutable evidence that was provided to her, she appears to have refused to reconsider her position and to even entertain the possibility that she was wrong.

Anonymous said...

Perhaps it was too late to give Tracey Cline a Profile in Courage award this time. Can we nominate her for next year?

Or maybe a new award could be give to Cline- the first ever Profligate Scourge award. Nifong might be qualified, too, making this is a difficult call.

Anonymous said...

I realize I'm likely to catch hell for this,but is it possible that Tracey Cline suffers from some undiagnosed form of mental illness?Her hurling invectives and generalk sloppy thinking seem,at first blush,to imply simply a person unqualified for their job.But her constant sense of persecution and unwaivering belief in her moral rightness(along with a 600 page missive and the behavior surrounding it)seem to suggest an underlying psychological problem.

Anonymous said...

Wahneema Lubiano's contribution to the play is "forthcoming".

kcjohnson9 said...

To Jim:

I don't see a similarity b/w Rose Bird & the Iowa judges.

While I oppose the death penalty on both moral and legal grounds, it was (and is) CA law. Bird, as you note, found new & creative ways to annul every death penalty she considered on appeal. In short: a plausible case could be made that Bird was abusing the authority of her office, imposing her personal views while distorting the law.

In the Iowa case, I'm not aware of anyone who has credibly advanced a claim that the Iowa judges abused the authority of their office--the decision was unanimous, written by a Republican appointee, and appropriately considered not the majority's cultural attitudes (which are, of course, not relevant to a constitutional claim) but the constitutional protections embedded in the state's equal protection clause.

Because a group of evangelical Christian leaders and out-of-state activists opposed the decision, they organized a non-retention vote, thus undermining judicial independence. There's no indication they would have followed a different course had there been a vote on a constitutional amendment, which could not have reached the ballot before 2012 in any case.

It's quite true, as you note, that Iowa's duly elected representatives (both chambers in 2010, the state Senate in 2011 and 2012) have declined to authorize a constitutional amendment, the first step under Iowa's constitution to enact an amendment. In Iowa's system of representative (as opposed to direct, as in CA) democracy, that's how the system works: and if it's important enough to Iowa voters that their constitution's equal protection clause be gutted, they can elect legislators that reflect their will.

I would hope they do not follow such a course--just as, in general, I would hope states move away from judicial-election models.

Jim In San Diego said...


The fact Iowa voters, not out of state activists, made the remarkable decision to turn out three members of the Iowa Supreme Court over this issue suggests that Iowa voters, given the opportunity, would have voted for a constitutional amendment defining marriage as between one man, and one woman.

Whether one considers this a good thing, or a bad thing, depends upon one's politics. Would Iowa voters be "gutting" the equal rights language of their constitution; or, would they be "clarifying" their intent for the benefit of their courts?

Constitutions, among other things, have the purpose of providing a controlling framework within which representatives may act. When representatives make political decisions to prevent voters from being heard on a constitutional issue, as was done in Iowa, the system is not exactly working as intended, I think.

Jim Peterson

kcjohnson9 said...

To Jim:

Generally, when the rights of a minority group are put up to plebiscite, the minority loses (this is, after all, why they're a minority). One of the more infamous such cases occurred in CA, in 1964, when California voters stripped from the state's African-American voters the right not to be discriminated against in the sale or rental of housing. That vote (Prop 14) ultimately was overturned by the Supreme Court.

Making it difficult for the "tyranny of the majority" to so operate is one reason why the framers opposed direct democracy & set up a system of checks and balances--which included, among other things, provisions making it very difficult for "voters [to be] heard on a constitutional issue," at least with regard to the federal Constitution. The tactic of placing minority rights up for plebiscite is a recent phenomenon, and was extremely rare before the 1970s. Indeed, if supporters of bans on interracial marriage had sought to have "voters ... heard on [that] constitutional issue," it's almost certain that every post-1948 state decision annulling such bans, including California's, would have been overturned at the ballot box. There's no good scholarship as to why advocates of Jim Crow did not pursue this course. The country, I would submit, was better served by their comparative restraint.

To return to the subject of my post: all evidence suggests (and I don't believe you disagree) that the three judges honored by the JFK Library were removed because the (slim) majority of 2010 voters in Iowa disagreed with them on one decision, in which they safeguarded the rights of the minority at the expense of the majority's cultural concerns. Removing judges for such an "offense" constitutes a serious blow to judicial independence--just as judicial independence would have been undermined if NC voters angry about the exoneration rushed to the ballot box to remove Judge Smith.

Jim In San Diego said...


I appreciate the time you took to respond in some detail to my comments in this now inactive thread.

You are one of the few people I know I would pay money to talk to over a cup of coffee.

Keep up the good work.

Jim Peterson

kcjohnson9 said...

Thank you :)

And, to go more broadly, I should reiterate a presumption of the post as a whole: I think judicial elections, of any type, are a bad idea, because taken as a whole they threaten to do more harm than good. (I have no problem, on the other hand, with term limits for judges or justices on the SupCt, and think that this idea--which was floated most prominently by Rick Perry as his campaign was near collapsing--deserves more attention than it has received.)