Howard Update

Anne Blythe reports in the N&O that Judge Hudson has said he wants to grant bail to Darryl Howard, whose prosecution, writes Blythe, the judge described “as one of the most 'horrendous' prosecutions he had seen in his 34 years on the bench.” The prosecutor in the case was, of course, disgraced ex-DA Mike Nifong.

As he has deemed Nifong as honorable and quite credible, author William D. Cohan has yet to comment once on the Howard case.

Due Process and Duke

[Update, 5.43pm: Judge Smith's preliminary injunction is here.]

Over at Minding the Campus, I write about Duke joining the list of universities facing a lawsuit for violating the due process rights of a student accused of sexual assault. The student, Lewis McLeod, was expelled under what appears to be dubious reasoning just before he graduated. (And a hat tip to Independent reporter John Tucker, who covered the hearing and provided a comprehensive report.)

In a bold move, last yesterday afternoon Judge Osmond Smith (to whom the case was assigned) issued an injunction against Duke, preventing the university from expelling McLeod until a trial can be held. Smith acted on the basis that a trial would show that Duke had “breached, violated, or otherwise deprived the plaintiff of material rights.”

The Duke spokesperson responded to the legal setback by (very oddly) terming the school “pleased.” The spokesperson added, “Duke follows federal legal requirements for complaints of student sexual misconduct and works very hard to make sure the process is fair and just in every case.” [emphasis added]

That “fair and just process” is one in which:

• the accused student is consigned to an “advocate” who cannot speak in the hearing that will determine whether Duke brands him a rapist;
• consent is vaguely defined, on grounds that “alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given”;
• a preponderance of evidence (50.01 percent) threshold is used;
• the accused student cannot directly cross-examine his accuser;
• the accused student only has a maximum of five days to examine the evidence that Duke has compiled against him, while he lacks the power to subpoena potentially exculpatory evidence from the accuser;
• double jeopardy exists, in that the accuser can appeal a not-guilty finding;
• Duke is allowed to use evidence from anonymous parties against the accused student.

Fair and just, according to Duke.

Campus News

A few items from Duke and other campuses:

First, a horrifying story of anti-Asian prejudice from a Duke fraternity (followed, a few days later, by reports that at least some Duke students—there are debates about how many—were mocking a NC State basketball player over his grandmother’s death). These are not signs of a healthy campus culture.

The recent events recalled an item from UPI, revealed by Stuart’s reporting—that in the 2005-6 academic year, around 20 student groups hired strippers for campus parties. That well-meaning and basically decent students could make such poor choices provided a legitimate ground for the university to launch an impartial examination of campus culture. So, too, did the issue of whether prejudice was too rooted on the Duke campus.

But examining these issues would have required shining a harsh light on not merely Duke students but also some Duke faculty—it would be hard to argue that prejudice did not factor into the behavior of at least some of the Group of 88, such as Houston Baker, Wahneema Lubiano, and Grant Farred. So the Brodhead administration avoided these difficult issues and instead implemented the Campus Culture Initiative, allowing three of the CCI’s four subcommittees to be run by anti-lacrosse extremists. The CCI unsurprisingly produced a report so extreme (urging that Duke adjust its scheduling policies to basically force the university to withdraw from the ACC, recommending a curricular change that would have compelled the vast majority of Duke undergrads to take a course from a Group member) that even Brodhead had no choice but to shelve the panel’s findings.

Duke has suspended the anti-Asian fraternity, allegedly for reasons unrelated to the prejudicial behavior.

Second, at Penn State, the Paterno Family has released its long-awaited critique of the Freeh Report. I analyzed the document over at Minding the Campus. The report provides almost no new evidence, continues the general pro-Paterno pattern of insisting on wildly counterintuitive interpretations of circumstantial evidence, and presents several odd interpretations of due process. On the latter point, for instance, the Paterno Family attacks Freeh’s investigators for not interviewing two senior administrators (Freeh instead relied on contemporaneous e-mails from the duo) who declined to cooperate with Freeh on advice of counsel. Yet the Paterno Family’s hired attorneys and experts didn’t interview the two senior administrators, either.

In the event, so obsessed was the family with restoring Paterno’s tarnished reputation that they bequeathed a report that effectively left unchallenged Freeh’s central assertion that a handful of powerful administrators cooperated to bypass the legal requirement to report Sandusky to police—only that Paterno (a figure, apparently, without much power or influence on campus) played no role in these decisions.

It’s a document for true believers, and true believers only.

Finally, on my own campus, a shameful episode, in which the school’s political department formally (and highly unusually) voted to affiliate itself with a talk by two advocates of separating Israeli from the international community, including boycotting Israeli academics based on their nationality. Then, facing intense public criticism, the professors refused to provide a rationale for their vote. (This vision of academic freedom amounted to an accused criminal pleading the 5^th amendment.) When the event occurred, a handful of anti-BDS students were expelled from the proceeding, despite the college president’s invitation to critics of the talk to attend and ask questions.

The college’s apparent disinterest in the academic freedom of its students reinforced an impression that a fear of antagonizing powerful anti-Israel forces on campus guided the administration’s approach to the case.

Hat tip—R.L.

Only in Durham, Vol. 99

[Update, Tuesday, 10.57pm: The Durham News has an interview with Judge Hudson, who was on the committee that selected the photos. He told the News, “We knew that (Nifong’s and Cline’s presence) might be somewhat controversial, but, you know, it is the ultimate history of the courthouse. We can’t strike the bad, we live with it as part of our history.”

I'm a historian, so obviously do not favor whitewashing the past. But I'm unconvinced that a hall of justice is an appropriate venue for posing photos of unethical figures. If the goal was to ensure that people didn't forget the bad, photos of Roy Cooper announcing the exoneration, or Lane Williamson presiding over the Nifong ethics proceedings, would have been more appropriate.]

ABC-11 brings welcome news that Durham is scheduled to open a new county courthouse. As part of the design, the county created a mural containing photos honoring some of the key legal figures in the county's history.

The photo array includes these two items:

Only in Durham could the hall of justice feature photos of chief prosecutors removed for unethical behavior. A spokesperson suggested that "random" selections explained the design.

"It's a great day," said Judge Marcia Morey, former character witness for both Mike Nifong and Tracey Cline, "and I think it's a new day for justice in Durham."

Indeed.

Updates

Updates on five* matters:

[Update, Wed., 7.40pm:

1) The New York Times editorializes that the Supreme Court should affirm (as, indeed, it should) that a prosecutor's primary goal is to seek justice, not to achieve a victory. Coming from an editorial page that was virtually alone among major national newspapers in never criticizing Mike Nifong's misconduct, even as Nifong was one of the highest-profile victory-over-justice prosecutors of the last decade, this argument could at best be qualified as better late than never.

2) A reminder that in the week of 18 September, the 4th circuit will hear Durham's appeal of Judge Beaty's order allowing discovery to proceed in the lawsuit filed by the falsely accused players. This move has an effect on the suit filed by the unindicted players, since Beaty allowed all discovery regarding former SANE-nurse-in-training Tara Levicy to be delayed pending the outcome of the appeal.

To summarize the Durham argument, as spelled out in Beaty's original ruling: "Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause."

3) In a move first reported by the H-S, Duke attorneys have filed a brief demanding the dismissal of the Katie Rouse lawsuit, partly on grounds that Rouse was considering leaving Duke even before the rape, partly on grounds that Rouse wasn't treated any differently than other Duke students who considered transferring.

The filings did reveal two previously unreported items. First--and almost incredibly--Moneta admitted that Rouse had been a student employee in his office. If the record of the Rouse case is how Moneta treats a student who had worked for him (as he told NBC-17, the situation was “part of the reality of collegiate life and of experimentation and some of the consequences of students not necessarily always being in the right place at the right time"), imagine how he'd treat a student he had never encountered but whose presence at Duke caused him bureaucratic problems.

Second, the filings indicated that the house in which Rouse was raped was owned by Duke mega-donor Aubrey McClendon. (Sports fans might know the McClendon name--he's a part owner of the Oklahoma City Thunder, and played a key role in the borderline bad-faith departure of the franchise from Seattle.) Moneta's analysis the McClendon role, as expressed to other administrators: "Unbelievable" and "Shit." Bob Ekstrand has argued that the presence of McClendon gave Duke a motive to try and cashier Rouse out of the university.

Quite apart from the specifics of the Rouse case, there's something more than ironic about a paragon of political correctness such as Moneta worrying about a need to appease an anti-gay fanatic such as McClendon. Strange bedfellows indeed.]

WRAL reports that the State Bar has declined a request from ex-DA Tracey Cline to defer her disciplinary hearing, which currently is scheduled for the first week of October.

Cline wanted the Bar’s proceedings delayed until after she had exhausted her longshot appeals of Judge Hobgood’s order removing her from office.

There thus remains a good chance that Durham’s last two elected district attorneys not only will have been removed from office but removed entirely from the legal profession.

In the H-S, Ray Gronberg reports that Bob Ekstrand has, for the most part, agreed to demands by Duke attorneys for a protective order regarding discovery material in the civil case. In previous filings, Ekstrand had attached the depositions of Duke Police officer Gary Smith and Duke athletics official Chris Kennedy, as well as five e-mails between Pres. Brodhead and his advisors.

Gronberg correctly points out that such a protective order applies to both sides of the discovery, preventing Duke from releasing discovery information about the lacrosse players. But, as the H-S reporter surely is aware, the potential impact of discovery disclosure is so wildly disproportionate that only one side could experience any damage from releasing discovery material at this stage.

Thanks in large part to the combined spring 2006 actions of the media and Duke employees, the lacrosse players’ public reputations were trashed; it’s hard to imagine what Duke could release at this stage that would materially affect the players’ reputations. Moreover, such legal tactics would pose a risk of a public relations backlash against Duke, if the university came to be viewed as engaging in gratuitous character assassination against its former students.

(If there’s discovery material featuring the lacrosse players ruminating about Brodhead as a wise and incisive humanitarian leader, such a revelation would hamper the suit, but it seems extraordinarily unlikely the discovery file contains such material.)

For the plaintiffs’ attorneys, on the other hand, attaching discovery material to legal filings would pose no p.r. problems. More to the point, for Duke, the release of any of this material (whether in pre-trial filings or at trial) runs the risk of exposing damaging information about administrators—such as Brodhead’s implication that a possible frame for the lacrosse case was a movie in which an accused killer convinces his advocates of his innocence, only to be revealed as a killer.

Duke, of course, would have no such risk if either: (a) it had conducted a Freeh Report-like inquiry into how and why the administration so badly handled the lacrosse case, since such a review would have already exposed embarrassing material from administrators’ e-mails or other files; or (b) Brodhead hadn’t offered an after-the-fact claim that a presumption of innocence was one of the two lodestars of how he approached the case, since this highly implausible assertion is so easily undermined by such material as the president’s movie-critic e-mail.

Gronberg’s article notes that John Burness’ deposition has been scheduled, but contains no mention of whether depositions of Duke’s two key decisionmakers—Brodhead and ex-BOT chairman Robert Steel—have occurred.

It’s hard to imagine that Duke would want either of these depositions to see the light of day, which would make Ekstrand’s concession an important victory for the university.

Cline: Taxpayers Should Fund My Appeal

The N&O reports that disgraced ex-DA Tracey Cline has offered a Durham definition of chutzpah: she has filed a request that taxpayers should fork over the funds for her appeal of the (civil) judgment that removed her from her post as DA. She justified this extraordinary request on the grounds that since she no longer draws her DA's salary, she can't afford her attorneys' fees. (Cline apparently has struggled to set up a private practice.)

According to the N&O, the director of the courts system, former Judge John Smith, urged Judge Hobgood to deny the motion, on the following grounds: "there is no appropriation of funds for this purpose, there is no statutory authorization justifying the expenditure, and there is no other factor that would permit the Administrative Office of the Courts to provide payment for outside counsel in this situation. Furthermore, precedents establish that this is not a situation where state funds should be used to pay for private counsel in a removal proceeding such as this.”

Cline also can appeal to the AG's office to pay her legal expenses; why Roy Cooper would want to fork over taxpayer funds for such a fantastic appeal is not clear to me.

Cline Faces the Bar--And Duke Rationalizes McClain's Ethical Shortcomings

Update, Saturday, 12.16pm: The complaint is available on the Bar's website.

The complaint itself is divided into two parts. The first focuses on Cline's efforts to obtain prison visitor information on inmates Yearwood, Richardson, and Kidwell--all, apparently, out of an effort to find proof for Cline's claim of a vast conspiracy between the N&O, a handful of defense attorneys, and Judge Hudson. In the process of requesting this information, Cline made false statements to the court and to prison officials.

On this point, the Bar seems to have Cline dead to rights: she lied to obtain information she had no right to have, and she did so for an improper purpose.

The complaint's second section focuses on Cline's "repeated statements about the honesty, integrity, and fairness of Judge Hudson." According to the Bar, Cline knowingly made false statements (or had "reckless disregard as to whether the statement was true or false"). The complaint produces several of these statements--duly noting the myriad spelling and grammatical errors contained in the NCCU Law grad's various motions to the court.

Cline, the complaint claims, "brought the office of the Durham County District Attorney into disrepute." (Could her attorney argue that the office was in such disrepute that nothing Cline could have done could have brought it into further disrepute?) The complaint also alleges that Cline's statements undermined confidence in the judicial system--except, I suppose, for roving-character-witness-to-unethical-DA's Judge Marcia Morey--and were made with "reckless disregard for the truth."

The Bar concludes by charging Cline with violating five acts that violated ethics rules, two relating to the prisoner visitation record requests, three related to her false and inflammatory statements about Judge Hudson:

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Joe Neff brings the word at the N&O.

The State Bar has filed a 10-page ethics complaint against the disgraced ex-DA, charging her with making repeated false representations to the court, including knowingly making false representations to the court in her request for prison records.

Will consecutive elected Durham County DA's be disbarred for ethical violations?

And speaking of ethics, DukeProf pointed me to this quite remarkable comment from the chair of the search committee that recommended Duke hiring Paula McClain as graduate dean. According to the Chronicle,

The top three candidates also faced tests of “background due diligence,” [committee chair Calvin] Howell said. The committee conducted a poll in an effort to understand how each candidate was viewed publicly. In the past, McClain has been criticized for her involvement with the “Group of 88”—University professors who signed a controversial advertisement printed in The Chronicle following the 2006 lacrosse scandal. McClain’s involvement in the controversy did not cross a “threshold of concern,” Howell said. “She’s a political scientist and that’s what they do, they take a stance,” Howell said. “You’re not always on the right side of history, but as a scholar you have to have a voice.”

Imagine if instead of presuming the guilt of her own school's students, McClain has issued a public statement urging the Supreme Court to overturn racial preferences. Does anyone who saw how President Brodhead handled the issue this spring believe that Duke's response to such a candidate would have been "that’s what they do, they take a stance . . . as a scholar you have to have a voice”?

The inference from Howell's statement: McClain was on the wrong side of history, but Duke nonetheless put her in a position that depends on her good judgment.

Cline Continues Anti-Hudson Crusade

As seen in the document below, Tracey Cline is continuing her crusade against Judge Orlando Hudson.

In this instance, the former DA has requested mediation to address her demands for full access to "the email of [Hudson's] assistant, Peggy Bullock and himself." [comma splice in original] A Cline FOIA request for some Hudson e-mails had been granted, but (as would seem appropriate) Hudson did not turn over e-mails relating to specifics of pending criminal cases. This, at least, is the version Cline presents of her previous FOIA requests; as her removal proceedings demonstrated, she has only the loosest of attachments with the truth.

In a request that consisted of three paragraphs written by her, the former district attorney managed to include four grammatical errors (such as, "Last week I e-mail Judge Hudson...").

It's hard for me to imagine that a private citizen, as Cline now is, could obtain full access to the e-mail files of a sitting judge (and his assistant).

Nifong, Cline, and Durham's Legal Culture

Durham County is the sixth most populous county in the nation’s tenth most populous state. That a county of this size and significance—we’re not talking about Divide County, North Dakota here—has seen its chief prosecutor removed from office for ethical improprieties twice in the past half-decade is appalling. In an ideal world, this development would trigger a grassroots movement demanding a more ethical county prosecutor’s office. But, of course, we don’t live in an ideal world, and there’s little reason to anticipate such a development in Durham.

There were clear differences between the paths taken by Mike Nifong and Tracey Cline to their forced removal from office. Nifong was fundamentally corrupt, unethical to the core. An effective, if sometimes overly blatant, racial demagogue, he was motivated not by ideology but by pure personal advancement. If he had served as Durham DA in the 1950s, it’s easy to imagine him trying to frame innocent black students to appeal to racist sentiments among his white-majority electorate.

As to the performance of his duties: Nifong’s handling of the Mangum allegations could be used as a test for a legal ethics class, since he seemed intent on violating as many distinct ethical procedures as he possibly could in a single case. In this respect, his previous experience was particularly dangerous: he knew the rules well enough to know exactly what procedures needed to be overridden, and he had enough support on the bench (chiefly from Judge Ronald Stephens) to almost get away with it. A caricature of a small-town bully (a trait he ably demonstrated during his tenure at traffic court), he expected that he could live by his own rules, and defied anyone to try and stop him.

The great unknown of Nifong’s career is whether this type of misconduct led to him helping to convict any innocent people during his tenure as an ADA. His supporters never seemed interested in exploring this question.

Ideas did seem to matter to Cline. She made feints to anti-racism (with her seemingly baseless allegation of racism against an earlier employer—good enough to gain Victoria Peterson’s loyalty) and feminism (as ADA, she developed the deeply dangerous policy of allowing sex crimes cases to go to trial, regardless of the evidence, as long as the prosecutor believed the accuser). But as DA, Cline’s seemed mostly animated by an extreme version of victims’ rights, to the extent that she saw her office not as the “minister of justice” but as a victims’ advocate.

In Saturday’s N&O, Barry Saunders wrote that he had been a victim of a crime more than a decade ago, “when Cline as assistant DA, represented ‘me, the people’ after some night-skulking skunk broke into my house while my then 10-year-old son and I were in bed. Cline personified professionalism and commitment—even though she did get angry at me for showing sympathy toward the defendant from the witness stand and possibly causing the jury to go easy on him.”

But Cline was not supposed to have “represented” Saunders, or any victim of crime—as a district attorney, she was supposed to have represented the people. Did her inability to recognize this distinction account for her overly emotional (delusional?) response to Judge Hudson, with her claims that his decisions were “raping” the victims of crime? She certainly wasn’t helped by her obvious intellectual limitations. For a DA of a county Durham’s size to file motion after motion riddled with spelling and grammatical errors was simply embarrassing.

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Nifong and Cline did share one important characteristic: a willingness to lie, including in court. Nifong prevaricated so often in the lacrosse case that by the time things came crashing down upon him (in the week of the Dec. 15, 2006 hearing), he couldn’t keep his story straight about why he didn’t turn over all the DNA evidence. In the end, his lying to Judge Smith earned him a night in jail for criminal contempt, while Cline’s penchant for tall tales in the courtroom earned her a public rebuke from Judge Hardin.

Cline, moreover, almost certainly obtained her position through prevarication. Amidst the 2008 primary campaign, as the N&O delicately put it, “Cline maintain[ed] that she had no involvement in the lacrosse case, although defense lawyers for the exonerated players and testimony from State Bar disciplinary proceedings against Nifong challenge that.”

We likely will never know the full extent of Cline’s involvement in the lacrosse case—she won’t even grant the N&O permission to release a tape of the off-the-record 2007 discussion she had on the case. Nifong, meanwhile, has every incentive to maintain the fiction, lest Cline appear as a witness against him in the civil suits. That Cline’s story strains credulity puts it mildly: to believe her requires accepting that after recommending the constitutionally-suspect NTO against all white lacrosse players, solely on the basis of their group identity, she had no subsequent involvement in the case—even though she was the office expert in sexual assault cases, and even though she worked alongside Nifong throughout the period (when the case was the talk of Durham), and even though she would have served as second chair during the trial.

Instead, Cline’s only public commentary on the case was not a statement but a gesture—her decision to invite the disbarred Nifong, as her personal guest, to her inauguration.

That move sent quite a message about Cline’s commitment to integrity, but it was sadly consistent with the values of the office she was about to take over. A few months ago, a DIW commenter who said he had tried a few cases against Cline offered the following persuasive insight: “The culture of the Durham DA's office, as shown time and time again, is to win cases at all costs. Nifong and Cline built their careers in that office, and they both treat criminal cases as personal wars.”

This dismissive attitude toward legal ethics—and, indeed, to the truth—best manifested itself in the extraordinarily dubious judgment of Judge (and former Durham ADA) Marcia Morey. This sitting judge testified (not once, not twice, but three times) on behalf of the ethical standards of Nifong and Cline.

In New York, both the Times and the tabloids would have crucified a sitting judge who repeatedly placed the prestige of her office behind unethical prosecutors. In Durham, Morey’s conduct passed without editorial notice, and while such an approach could be expected from the hopelessly biased Independent, what can excuse the silence of the N&O editorial board and that of the post-Ashley H-S? Morey, it seems, represents The Durham Way, a fact so obvious that it appears it doesn’t even deserve a mention.

In a February interview with the Independent, Morey lamented, “Durham needs and deserves a better reputation." "I'm tired,” continued the Nifong/Cline ethics witness, “of going to meetings in other cities where people are saying, ‘There's always something going on in Durham.’”

With a sitting judge repeatedly testifying on behalf of unethical prosecutors, how could anyone in other cities think there's something wrong with what's going on in Durham?

Analyzing Judge Hobgood's Order

The removal from office of former Durham district attorney Tracey Cline occurred in a tightly-reasoned 14-page (single-spaced) order by Judge Robert Hobgood. The judge took seriously the Cline lawyers’ First Amendment claims—but ultimately rejected them, and in a way that seems almost certain to withstand Cline’s promised appeal.

Hobgood’s findings of fact consisted primarily of two types of material: (a) a recitation of the facts of the Cline-Hudson dispute accepting as true Cline’s version of events (and her recollections of various conversations with Judge Orlando Hudson); and (b) a list of Cline’s 21 most outrageous statements, culled from her various court filings against Hudson.

The 21 statements, Hobgood noted, “are not supported by the facts and have brought the office of the Durham County District Attorney into disrepute.” And Cline’s written assertion that Judge Hudson was “corrupt” was “not only false,” but was “inexcusable” and indicative of “actual malice” in the performance of her duties.

In his conclusions of law, however, Hobgood divided these 21 statements into two types. Sixteen of the twenty-one, he wrote, “may well fall under the umbrella of protected speech under the First Amendment.” [emphasis added] In a damning conclusion for the fate of Cline’s law license, Hobgood added that these 16 statements “unquestionably” violated the State Bar’s Rules of Professional Conduct, and were also “abusive and repetitive.”

But, nonetheless, as in his factual findings regarding closed-door details of exchanges between Cline and Hudson, Judge Hobgood was willing to give Cline (or in this case, her attorneys) the benefit of the doubt. He therefore did not dismiss out of hand the Cline team’s arguments that her “caustic” statements should be viewed through the prism of her First Amendment rights.

That left five Cline statements: that Hudson had committed “misconduct . . . involving moral turpitude, dishonesty, and corruption”; that Hudson was guilty of “kidnapping the rights of victims and their families”; that Hudson had committed “intentional malicious conduct”; that “this Court is in total and complete violation of the North Carolina Code of Judicial Conduct”; and that Hudson needed to “acknowledge that your hands are covered with the blood of justice, and be ashamed.”

Hobgood found, not unreasonably, that these statements constituted a “false, malicious, direct attack” on Hudson, to which Hudson (because of the Code of Judicial Conduct) could not respond. The statements, moreover, were “not supported by any facts in the records or which can be reasonably inferred from the record.” Hobgood noted that the Supreme Court decisions cited by Cline’s attorneys regarding the First Amendment protections for public officials explicitly carved out an exception: that, as Garrison v. Louisiana held, the “knowingly false statement made with reckless disregard of the truth, do[es] not enjoy constitutional protection.” Cline’s First Amendment argument had come up short, and as a result she is out of a job.

Two additional, though implicit, items from Judge Hobgood’s order. First, he appears to have given no serious weight to the argument of Nifong apologist Marcia Morey, who maintained that Cline’s behavior was a mere “distraction to the administration of justice.” Given that Judge Morey had previously claimed that she considered Nifong truthful, she has no credibility on matters of ethics, and Hobgood’s decision not to honor her opinion was appropriate.

Second, Hobgood did include one paragraph that appeared to respond to testimony offered by Durham attorney Bill Cotter (who I know and like) on behalf of Cline. Cotter presented perhaps the most effective defense of Cline offered at the hearing. He didn’t try to defend the truth of Cline’s stories (as Cline’s attorneys did), or even the bizarre nature of her behavior. Instead, he suggested that the Cline-Hudson dispute should be characterized as a personal squabble, rather than something that rises to the level of professional misconduct.

But, as paragraph 42 of the Hobgood order noted, Cline did not confine her squabble to Hudson.

In short, a district attorney, acting in her official capacity through an affidavit filed under her signature, accused a member of the public with having been held in contempt of court—though this accusation was a lie. There was no possible First Amendment protection for this assertion. Nor could it be excused as part of a personal squabble between Cline and Judge Hudson. Instead, the false statement appeared to be part of a pattern of Cline lashing out—the facts be damned—against anyone who she perceived as frustrating her agenda.

In the end, then, neither the First Amendment nor an appeal to personal disputes of courtroom politics could save Cline.

Updated: Cline Removed from Office

Former Durham County DA (and ex-Nifong ADA) Tracey Cline has been permanently removed from office, marking the second time in a half-decade in which a Durham County District Attorney has been removed as chief prosecutor for ethical misconduct.

Live commentary: Judge Hobgood is reading his opinion, which consists of running through Cline's most inflammatory statements from her various wild motions.

The judge concludes that a variety of Cline's statements are false, and brought the office of the DA into disrepute. Hobgood adds that Cline "knew the risk" of her actions.

The "knowingly false statement made with reckless disregard for the truth do not enjoy constitutional protection." Cline's statements were "not truthful." Hobgood adds that Cline's statements "unquestionably" violated Bar standards.

Hobgood says some of Cline's statements might be protected by 1st amendment or qualified immunity, but several of her statements "goes far beyond" any constitutional protections--statements made with "actual malice and reckless disregard for the truth."

Cline "has lost the confidence" necessary to continue as DA. "By recklessly making false allegations against Judge Hudson in the public record," Cline "has crossed the line of protected speech under the 1st amendment."

Rejects Judge Morey's claim that Cline's conduct has not impeded the administration of justice. Cline must be removed from office.

Live-stream is below:

Apart from the hearing, just before the filing deadline, and without informing his boss (interim DA Leon Stanback) Cline backer and ass't district attorney Jim Dornfried has filed to run against Judge Hudson.

A few observations on the hearing. The Cline attorneys argued that her remarks were protected by the 1st amendment. Cline attorney Patrick Mincey even cited Marbury v. Madison !!(1803), which he described, erroneously, as the "first" case "that the Supreme Court made after it was created." (It actually was the 12th decision made by the Court.)

This line of attack strikes me as weak--State Bar organizations in all 50 states have restrictions of various types on what can and cannot be said about judges, criminal cases, etc. Upholding the Cline argument would essentially require Judge Hobgood holding that the State Bar codes in all 50 states are unconstitutional.

One point on which I'd agree with Mincey: in his remarks, he claimed that if the court removed Cline, it would have a "chilling" effect on DA's. Such an action would have a chilling effect: that it, is would "chill" DA's from making unsubstantiated charges and inaccurate claims in court filings. Less persuasively, Mincey claimed that "those who live in Durham Co. who wish to speak out against judicial officials" would be chilled from speaking out by a removal of Cline. I don't see how, unless all the citizens of Durham County are somehow subject to N.C.G.S. § 7A-66.

Even more hilariously, Mincey asserted that Cline's behavior has made the administration of justice in Durham County "stronger." And I'm going to be elected the next Pope.

Boiled down to the essence, the Cline defense made two arguments: (1) discipline of her, if it should occur, should be done by the Bar and not through this procedure; (2) since she really believed what she was saying was always true (even though, of course, it wasn't), she had a right to speak out.

Judge Marcia Morey, Roving Character Witness for Wayward Prosecutors

The Cline hearing has come to a conclusion for the day (see below: final argument will occur Wednesday), but the most striking aspect of the day came in the appearance of Durham Chief District Court Judge Marcia Morey as a pro-Cline witness. As the N&O reported, Morey "testified Monday that administration of justice has not been disrupted since suspended District Attorney Tracey Cline began launching attacks on the chief superior court judge in November." She added that "this may be a distraction to the administration of justice, but it has by no means slowed it down or derailed it."

Morey's record as an evaluator of DA's, however, is a bit on the shaky side. This is the same Judge Morey who appeared as a character witness on behalf of Mike Nifong during his ethics proceedings. At the time--and after months of reports showing that Nifong had issued at best misleading statements and at worst outright lies about the lacrosse case, including to Judge Smith--Judge Morey testified, "I have never doubted his truthfulness."

And then, to close her cross-examination in the ethics hearing, the judge gave this extraordinary response:

Q: Is it your testimony that Mike Nifong currently [as of June 2007] enjoys a reputation for truthfulness?

Morey: I think he does.

Courtesy of WRAL, here's a video of Judge Morey at Nifong's 2007 criminal contempt trial, at which she advanced the extraordinary argument that in evaluating the candor of a prosecutor, it "makes a difference" whether a case is at the trial stage or in pre-trial motions.


Given her own willingness to stand up on behalf of not one but two ethically challenged chief prosecutors, it's a wonder that Judge Morey considers herself qualified to opine about the "administration of justice," at least as the term is commonly understood.

Cline Hearing

Update, 4.54pm: The hearing has now come to a close. The judge says there will be no meeting tomorrow; Wednesday will have closing arguments; and the case might be decided by Friday.

Update, 4.23pm: Now on the stand, as a pro-Cline character witness, is Judge Marsha Morey. This is the same Judge Morey who served in his ethics hearing as a character witness for Mike Nifong, about whom she said, on 15 June 2007, "I have never doubted his truthfulness."

And she also had this exchange:

Q: Is it your testimony that Mike Nifong currently enjoys a reputation for truthfulness?
A: I think he does.

I'd say that Judge Morey was a particularly appropriate witness on behalf of DA Cline.

Update, 3.22pm: Cline might have just lost any chance to get hired by a Group of 88-dominated department if she's removed from her position: she suggested that people can claim racism when it's not there, and in so doing can disturb efforts to combat real racism.

That answer, alas, came as part of a give & take in which Cline refused to back down on any of the specific words she used in her anti-Hudson motions.

Update, 3.14pm: Cline continues to insist that everything in all of her filings is true, and says that she has no regrets about her decision to file complaints against Hudson.

The hearing continues:

Update, 1.22pm: From the N&O's coverage:

Cline insisted this morning that she was unfairly criticized by the News & Observer, repeating complaints she has lodged for months despite evidence that she is wrong in her assertions.

"I’m not saying I disagree with them. I’m saying they were false," Cline said. The N&O stands by its reports.

Editors at the N&O refuted Cline's assertions that it failed to report the district attorney's office provided rough notes from the SBI in a case that has since been dismissed. Last summer, Cline backed down from that after being shown the exact passage in the article that details that information. Use the controls on the right side of this page to listen to audio of that interview.

This morning, Cline again asserts that the N&O left out that piece of information.

Cline also refused to back down from assertions that N&O reporter J. Andrew Curliss was held in contempt of court in the Allen matter, even though an assistant clerk testified last week that there's no evidence of that anywhere in the court file or in the database of criminal charges.

Cline admitted she never checked the file to look for any contempt filings for Curliss. Still, she insists he was charged.

Update, 1.00pm: Cline is now saying that when she attacked Hudson's rulings for raping the community, she wasn't personally attacking Judge Hudson. She adds that she has "stacks and stacks of e-mails" to corroborate her claims. The proceedings are in recess until 2.30pm.

Update, 12.50pm: Cline seems wholly incapable of giving direct answers to simple questions. By the time she gets to the end of most of her responses, no one in the courtroom seems to remember what question was asked.

Update, 12.30pm: After repeatedly accusing Judge Hudson of improperly holding ex parte communications with defense attorneys, Cline has just admitted that she held an ex parte communication with Judge Hudson about the Allen case. But she says she didn't go to the meeting as a "prosecutor."

Update, 12.12pm: Cline is now doubling down regarding her allegations (ultimately disproved by the N&O, based on a broken time-stamp clock) that Hudson filed an order before all the evidence came in. On Friday, the clerk's office employees testified that the time-stamp clock was broken. Cline says she doesn't know if the clerks were telling the truth.

Update, 11.36am: Cline is currently being called upon her . . . incomplete . . . answers on Friday. Her general approach thus far has been to filibuster rather than offer answers, and to assert that it was "impossible" for her to remember every motion that was filed in the cases under discussion. This is an extraordinary line of defense--she's justified in lying on grounds of her not remembering whether motions have been filed.

Cline also has made a bizarre claim that she didn't go through the relevant court files to prepare for this hearing. In other words: in a hearing to decide whether she should be able to keep her job, Cline couldn't be bothered to actually research the cases under dispute.

The link to today's hearing is: .

Update, 8.59pm: Coverage of the hearing from the N&O and the H-S.

Update, 4.34pm: Cline has concluded her direct testimony; cross-examination will begin Monday morning at 9.30am. She maintains she did nothing wrong other than use some intemperate language about Hudson's behavior in her motion.

Update, 4.21pm: Cline is now complaining that Judge Hudson was pursuing a vendetta against the DA's office by refusing to schedule cases from the office. She's also suggesting that she had no choice in upholding justice but to file her complaint.

Update, 3.23pm: Cline seems unable to give a 1-minute, concise answer when a rambling 15-minute response will do. She did just say, however, that she wished that her "words had been chosen better" in her anti-Hudson motions, although she continued that she was "morally" obligated to act as she did; and that the content of her motions was "absolutely true."

Update, 3.06pm: Cline is now giving a lengthy, borderline-incoherent, response to the N&O series. She said she wanted to "explain the mental processes I was going through."

Update, 2.45: Cline now is arguing that there was no evidence for Hudson's claims that the DA's office didn't turn over all exculpatory evidence. Her basis for this claim? She says so.

Update, 2.22pm: Cline just resurrected the Mike Nifong line of defense on DNA! (She suggested that negative tests don't necessary mean a negative result.) She also is defending her bizarre town hall meeting, and has now returned to railing against the N&O.

Update, 2.20pm: Cline is now complaining about the N&O series. In what seems an almost certain untruth, she just stated that she hadn't anything heard about the various cases discussed in the Twisted Truth series for several weeks before the articles appeared. Yet the N&O reached out to her for comment at the time.

Update, 12.43pm: The hearing is now on mid-day recess. The Cline defense strategy appears to be that Judge Hudson's order in the Allen case was wrong, and the errors in the order explain (excuse?) Cline's subsequent overheated responses. As I said earlier, this is a curious line of defense, but perhaps it's the best that Cline has.

Update, 11.00am: The live-stream of the hearing is below; to date, Cline has failed to get the hearing suspended; and currently her attorneys are going through, in painstaking details, the specifics of Judge Hudson's order in the Allen case, challenging it here and there. This is a most curious line of defense.

In an even more curious development, Judge Hobgood is allowing DA Cline (a figure whose grasp of the truth is a bit of a stretch) to allow what she claims that Judge Hudson told her in various conversations.

Suspended Durham DA Tracey Cline gets to defend her record tomorrow before Judge Hobgood. I'll post a link to the hearing when it becomes available, and will have commentary on the proceedings here.

In the meantime, this blast from the past ("David Saacks and the Unethical Duo"), courtesy of the Mike Nifong 2006 website.

Legal Updates

Cline hearing: While things haven't gone particularly well for the emotionally unstable suspended DA, Kerry Sutton's interrogation style doesn't exactly set the world on fire, either. (At one point, Judge Hobgood said that Sutton's line of questioning--on the inaccurate timestamp machine--didn't "amount to a hill of beans."):

A few legal updates:

Both the Carrington and McFadyen attorneys had additional recent filings. Though they contained nothing as explosive as Brodhead’s implicit comparison of the falsely accused lacrosse players to a sociopath who murdered a corrupt cleric, they offered more reasons why Duke shouldn’t want this case to go to trial.

The Carrington filing, which blasts “Duke’s hyper-compartmentalized approach to relevance,” offers a glimpse into the unindicted players’ litigation strategy. (Duke is trying to prevent virtually all discovery related to the university’s p.r. strategy.) The attorneys want to “establish what (and when) President Brodhead knew about the credibility of the rape allegations,” expecting “information about Duke’s public relations strategy to reveal a fixation on the institution’s public image that eclipsed any interest the university may otherwise have had in vindicating the reputations of its wrongly accused students.”

In particular, Duke has sought to block all inquiries into whether and when senior administrators were informed about the (lack of) evidence relating to false accuser Crystal Mangum’s claims. Why is this relevant? “If Duke continued to undermine Plaintiffs after learning the negative results of Mangum’s rape kit, that information would suggest that Duke’s efforts to bolster Mangum’s allegations were driven by its desire to salvage its own reputation.”

If I were a Duke attorney, I too would do whatever I could to avoid scrutiny as to who came up with the idea for Brodhead to address the Durham Chamber of Commerce shortly after the Seligmann and Finnerty arrests and deliver his infamous “whatever they did was bad enough” line.

The McFadyen filing, meanwhile, offers interesting nuggets regarding the most vulnerable area for Duke: the university’s almost unfathomable decision to turn over FERPA-protected keycard data to the police, and then the school’s decision not to come clean for months about what it had done.

Duke’s approach to defending this claim, at least to date, appears to have been the see-no-evil, hear-no-evil strategy. From the filing: “With respect to the topics relating to Plaintiffs’ fraud claim, Ms. Wasiolek had no personal knowledge of any of the material facts, reviewed a handful of documents, and spoke with only 4 people. Ms. Wasiolek had no clear recollection of the documents she reviewed, and she did not interview any of the individuals named or identified in connection with Plaintiffs’ fraud claim.” This list of four people, incredibly, did not include the Duke police officer who, in violation of FERPA, handed over the keycard data. “And yet, Ms. Wasiolek swore under oath that no one else was more knowledgeable or better able than she to testify about the noticed topics on behalf of Duke University.”

Has Duke elected to pursue willful ignorance as a defense strategy?

----------------

The Tracey Cline hearing remains scheduled for Monday, yet her newly-hired attorney, Jim Van Camp, demanded a delay. This course of action was necessary, wrote he, “because this case is both unique and special, and because of the dramatic, personal tensions inherent to allegations set forth in the Affidavit, an unnecessary and expedient hearing can only risk Ms. Cline being merely prepared to offer a mercurial defense based on emotional rather than a calm, rational defense based on facts."

That her attorneys didn’t have much time to prepare, however, was solely the fault of Cline—her delay in hiring counsel caused the problem. Kerry Sutton opposed the request, terming it “disingenuous,” and yesterday, Judge Hobgood appropriately denied it.

In addition, Sunday's N&O contained a lengthy feature on Cline and her background. Two items jumped out: (1) Cline twice had her law license suspended, because she didn't pay her State Bar fees; (2) An alleged incident in Elizabeth City. Here's how N&O reporter Mandy Locke described it:

In July 1993, she headed to the state's northeast corner to work as a prosecutor in a cluster of counties near Elizabeth City. Her stint there was short-lived, just six months, and unremarkable, according to supervisors.

But years later, when she filled out a questionnaire in 2008 when running for district attorney, Cline said that at work in Elizabeth City, she was "confronted with what I felt was a disparity in justice based solely on race. I refused to be a part of that injustice." She said in an interview last summer that she didn't recall the exact issue.

Both her bosses, former district attorney H.P. Williams and current district attorney Frank Parrish, say they have no idea what Cline is recalling. Both are mystified by her feelings about her time in Elizabeth City, saying it seemed cordial.

"I hated to see her leave," Williams said. "I'm surprised to hear she remembered that time as difficult. I would have given her a good recommendation."

Detecting racial grievances for imagined or non-existent slights? If she is removed from office, perhaps Cline can join the Duke faculty. The Group of 88 doubtless would welcome such an ideological soulmate.

--------------

Friday’s H-S referenced a long-forgotten figure, “Spoiler Steve” Monks, In an article about a petition candidate for county commissioner, reporter Ray Gronberg recalled the last time the petition tactic was used in a high-profile Durham County race—the Lewis Cheek (Recall Nifong) effort.

In that campaign, Gronberg remembered, “Write-in candidate Steve Monks in that race bypassed both the primary and petition routes and wound up getting 11 percent of the vote. That earned him a reputation as a spoiler whose involvement wound up swinging the election to the since-disbarred Nifong.”

Given how the case ended—with Nifong forced by ethics charges to turn matters over to the AG for a fair investigation—it’s easy to assume that this ending was inevitable. Yet the State Bar committee’s vote for immediate ethics charges was 9-8; without that vote, Nifong could have plowed ahead on his unethical course.

If that vote hadn’t occurred, the impact of “Spoiler Steve” would have been considerable indeed.

----

Finally, Sunday's ESPN Outside the Lines had an excellent feature on former FIU baseball player Garrett Wittels, who almost certainly was the target of a false rape accusation (the charges were ultimately dropped; video evidence contradicted the unidentified accusers' tales; the father of one of the accusers was sued by NASCAR for allegedly trying to construct a rape frame against a NASCAR employee). The allegations alone, however, were enough to prevent him from being selected in the MLB draft.

Unlike Duke's handling of the falsely accused lacrosse players, FIU didn't suspend Wittels (nor, obviously, did it cancel the baseball team's season), even though Wittels admitted all along that "something" (sex with one of the accusers) happened. There was no FIU equivalent of the Group of 88. It's worth wondering, however, whether the FIU administration would have been so respectful of due process if Wittels' accusers hadn't been rural Arkansans.

You can see the report here.

Cline Requests (And Receives) Delay

[Update, Monday, 3.23pm: The N&O reports that the beginning of the Cline removal hearing has been moved to next Monday, Feb. 20th; Cline herself will begin her defense a week from Friday. Clarifying the mystifying language from her previous filing, the suspended DA informed the court that she has not hired an attorney, though she hopes to do so.

In today's only-in-Durham moment, Cline was 7 minutes late for the start of the hearing. Here's my favorite N&O photo of the event, subtitled, "Attendees of the Tracey Cline hearing await the arrival of Durham District Attorney Tracey Cline after the hearing was called into order Monday morning."]

[Update, 10.19pm: For those interested, here's a copy of Cline's filing. She claims the complaint against her was filed by "Kerry Sutton" and "Kerrie Sutton." She writes about how "This Honorable Court determined form [sic] the review of court files . . . that there was probable cause." She reminisces about how she claimed that "Judge Orlando F. Hudson Jr. was bias [sic] against Cline." She asserts that as of 30 January, "the respondent / defendant has continued to diligently to [sic] seek counsel for this hearing when physically able to do so and as of this date has not been able to retain counsel for this hearing." (Two lines later, she states that she did find a lawyer. One line after that, she seems to backtrack on whether or not she has a lawyer.) She laments the "time restrains [sic] of the hearing."

And, as Andy Curliss points out, she claims that Judge Hobgood found probable cause regarding one element of Sutton's complaint on which, in fact, he did not find probable cause.

Again, this is a filing in a case that could bring about Cline's removal. And, as is her usual pattern, she couldn't be bothered to run a spell-check, and ensure that her facts were accurate?]

[Updated, 5.43pm: In a typical only-in-Durham moment, the N&O's Andy Curliss reports that Cline (for reasons that are unclear) decided not to file her motion requesting a delay with the court clerk. (Instead, she e-mailed her request directly to the judge.) Curliss also reports that Cline had been indicating she'd be ready for the hearing, at least to some extent, earlier in the week.]

Citing illness and a seeming difficulty in finding an attorney to represent her, Cline has requested a delay in the hearing regarding her permanent ouster as district attorney. In an e-mail to court officials quoted by the N&O, the grammatically-challenged Cline tossed in this run-on sentence: "I need to move to continue the hearing from Monday because I do not have any attorney and I have been physically sick for over a week and presently I am not physically at my best." This item sounds a bit like a late-term excuse I might receive from an underperforming student demanding an extension for submitting his or her course paper.

In her court filing, Cline claims to have been out of state when the announcement of her suspension occurred; she remained at this undisclosed, out-of-state location for three days, for reasons that she does not disclose. But then she "became physically ill and returned to North Carolina."

Beyond her illness, Cline's filing cites difficulties in securing legal representation. (At least she's not going the Linwood Wilson route and representing herself.) In yet another run-on clause, the suspended DA claims to have "consulted numerous attorneys in this area and did find one attorney who could do the hearing but he will be out of town." The implication is that several lawyers turned Cline down--though, as is the case with so much of her writing, her meaning isn't entirely clear.

It seems likely that Cline's request will be granted. But the motion itself doesn't inspire confidence in the likelihood of her ultimate success.

Cline Suspended

[Update, Wed., 3.24pm: Retired judge Leon Stanback has been named Durham's interim DA.]

[Update, Sunday, 5.33: Gov. Bev Perdue, who just announced her retirement amidst very poor poll numbers, will appoint Cline's temporary replacement.

Judge Hobgood's order indicated that probable cause for removing Cline existed for, among others, the following items from Sutton's affidavit:

Will bring news when available on whether WRAL will stream the Feb. 13 hearing.]

The dysfunctional world of the Durham DA's office continues. A hearing on her case will take place on Feb. 13, assuming she does not resign first. Given Cline's delusional approach to affairs over the past several months, I'm not counting on an early resignation.

WRAL has posted Franklin County Judge Robert Hobgood's order; based on his preliminary findings, Cline's chances in the Feb. 13 hearing do not appear good.

Hobgood starts with a summary of the Allen case: he notes that evidence existed for Cline to bring the case to trial, but also finds that Judge Hudson's dismissal of the case (because the state hadn't turned over evidence) was correct. Hobgood reports that it was "apparent" that Cline found this decision "extremely frustrating," and that thereafter, "signals began to appear that Tracey E. Cline was losing her ability to exercise professional restraint and civility toward Judge Hudson."

Hobgood dismissed a couple of elements of Kerry Sutton's affidavit, but found probable cause for 14 paragraphs in her affidavit, and suspended Cline (with pay) until the hearing is held.

[Update, 10.36pm: Ray Gronberg of the H-S reports that as of Friday evening, it was unclear who would serve as acting DA until a final resolution of Cline's case occurs.]

Yet Another Cline Embarrassment (Updated)

[Updated, Thurs., 5.56pm: "Ahab" Cline will continue her quixotic quest against Judge Hudson, the N&O reveals. Cline--the person who, it's worth noting, wouldn't recognize the truth if it bopped her in the head--wrote that "it is truth telling time" for Durham County.]

[Updated, Wed., 4.22pm: Durham attorney Kerry Sutton (who played a minor role in the lacrosse case) has filed an affidavit urging the removal of Tracey Cline as Durham DA. In the affidavit, Sutton accuses Cline of "habitual intemperance" and conduct "prejudicial to the administration of justice." Sutton, not unreasonably, characterized Cline's "inflammatory" filings against Judge Orlando Hudson as filled with "venom" and "paranoid" language, lacking in "fact or evidence, other than Ms. Cline's personal beliefs." Sutton goes into considerable length about how Cline's obsession with Hudson has both harmed the Durham DA office's reputation and consumed the Durham legal community's resources. (She also points out that the grammatically-challenged Cline also has a tendency to misspell "affidavit" in her legal filings.)

The N&O's Andrew Curliss reports that the gambit employed by Sutton is rarely used, and is believed to have resulted in the removal of only one DA in North Carolina history.]

Durham County’s minister of justice was last heard from penning a bizarre e-mail to the Herald-Sun in which she misspelled a judge’s name and asserted that “truth should be intimidated by the pressure of the powerful or the fear of failure.” This morning’s N&O exposes as false a central claim made by Tracey Cline in her quixotic crusade against Judge Orlando Hudson—that Hudson had demonstrated his anti-Cline bias by entering an August order before the prosecution even had the chance even to present all of its witnesses.

Reporter Andrew Curliss did what Cline failed to do—he actually investigated the seeming anomaly. And he discovered a benign explanation: “The clock at the courthouse that stamped the document was more than two hours slow that day.” In a situation that would seem more likely in a small town courthouse than in North Carolina’s fifth-largest city, the clock in the county clerk’s office seems to malfunction with some regularity. Curliss spoke to assistant county clerk Angela Kelly, who commented about the clock, “It is a machine that's plugged up in the wall that runs constantly. When things are filed, we stick it in there, and we always hope and pray it's correct. But there have been times when we notice that it's not correct."

Curliss confirmed Kelly’s recollection by checking into legal documents filed the next morning—which the clock erroneously stamped at 7.18am, rather than after 9.00am, when the clerk’s office actually opened. (Times public editor Arthur Brisbane might just call Curliss a “truth vigilante.”) The N&O website has a photo of the relevant filings.

Rather than assuming the worst and thereby leveling wild, unsubstantiated allegations against a sitting judge, Cline might have checked to see if there were problems with the clock in the clerk’s office, something that would have taken her only a few minutes to do. The N&O presented Cline with the information, but she declined comment, and thus did not take the opportunity to say that she would withdraw her charges against Hudson. Jim Coleman summarized the problem to Curliss: "She has made a serious allegation, and it warranted serious review by her before this filing. It is now just more evidence of a lawyer who is barreling down a hill totally oblivious to the damage she is causing to the judicial system. She is undermining confidence in the system. It's disgraceful."

Such cavalier disregard for the truth and professional behavior from his county’s “minister of justice” might be enough to cause “shame” and “anger” even from the likes of Duke professor William Reichert. But I suspect not.

Vote for Tracey!

The competition (especially John Bradley) is stiff for worst prosecutor of the year. But Durham's "minister of justice" is definitely in the running.

Housekeeping matters: I tweet all my posts (both here and from Minding the Campus) on my twitter feed; follow me here.

Attorney Wilson Approaches the Bench

Again proving that a man who represents himself has a fool for a client, Attorney pro se Linwood Wilson has filed a civil rights lawsuit against Kent (DE) County, Durham County, and no fewer than 31 individuals (ranging from his estranged wife Barbara to Beau Biden(!), the vice president’s son and the current Attorney General of Delaware). The former DA’s chief investigator, Christian singer, and ethical sinkhole alleges that his arrest for possible spousal abuse in fact involved malicious prosecution, concealment of evidence, conspiracy, supervisory violations, and fabrication of false evidence—all matters of which, it goes without saying, his service under Mike Nifong gave him intimate knowledge.

Wilson’s 92-page complaint, filed alongside 10 exhibits (totaling some 355 pages), takes 10 pages just to identify the various people that he’s suing. Attorney Wilson suggests a wide-ranging and multi-layered conspiracy of his wife, her alleged “paramour,” a Delaware police officer with whom she also allegedly was having an affair, his wife’s family, some of his wife’s friends and co-workers, some law enforcement officials in Durham County, and various law enforcement officials in Delaware—all working in concert to deny Linwood Wilson his constitutional rights. Remarkably, until the filing of this complaint, this vast conspiracy went undetected—not by the media, nor by state legislators in Delaware or North Carolina, nor by various watchdog agencies. How could this be?

In the real world, the chief purpose of the complaint seems to be less exposing a previously undetected “conspiracy” than humiliating Wilson’s estranged wife and her alleged “paramour,” Joseph Curtis. Attorney Wilson describes his wife as “a mentally troubled woman who had abandoned her marriage.” Indeed, she had “plenty of Zoloft at home,” yet was caught going to the pharmacy for more. Wilson recounts the following alleged event at a local Mexican restaurant: “Defendant [Barbara] Wilson drank a large double margarita (while taking Zoloft, Clonazepam, and Xanax) and got extremely drunk, telling Plantiff [Linwood] how she wanted to rip his clothes off and have sex with him on the table.” Attorney Wilson describes this evening as “the best [the marriage] had been in months.”

But, alas, Barbara Wilson was leading a double life, according to her husband. She was having an affair with her “paramour” at the workplace, while at their “marital home,” Barbara Wilson “sat next to her husband each night, wanted [sic] him to rub her feet and legs.” The “paramour,” meanwhile, “ran from Wilson’s marital home like a dog with his tail between his legs” when confronted by Linwood.

The gap between Attorney Wilson and Plaintiff Wilson is sometimes difficult to follow. For instance, in paragraph 48 of the complaint, Attorney Wilson speaks of “our marriage” (the marriage between Barbara and Plaintiff Wilson); at other occasions, he uses “I” rather than “plaintiff” to describe his recollections of alleged events.

Attorney Wilson claims that his client has suffered various injuries, including “economic” harm, presumably a result of the marriage’s breakup shattering the “Voiceovers by Wilson” business that the husband and wife planned to start. Attorney Wilson also claims that his client has “suffered irreparable harm to his reputation.” How? After the exposures of the lacrosse case, Linwood Wilson had no reputation to lose.

Attorney Wilson is particularly fond of the phrase “upon information and belief”—an approach used in civil suits when lawyers believe that something occurred but for which they do not, before discovery, possess hard evidence to substantiate. But in the Wilson complaint, virtually every “factual” claim comes not from any evidence he possesses but from his own . . . beliefs. To give a sampling from the complaint:

“Upon information and belief Durham Coca-Cola was already aware of the affair.”

“Upon information and belief . . . Barbara Wilson had been reportedly locking herself in her office at work and crying all the time.”

“Upon information and belief, a display of public affection occurred between Defendants Wilson and Curtis, in Curtis’ car on the way back from NCCU.”

“Upon information and belief, Barbara Wilson was the only one who got a raise in the past 2-3 years.”

“Upon information and belief, the ‘Delaware Conspiracy’ along with co-conspirators . . . from North Carolina, made a ‘rush to judgment’ and manufactured changes.”

“Upon information and belief, Defendant Reimann continued to conspire with Defendants [Barbara] Wilson, Curtis, and Delaware Sgt. Weaver.”

“Upon information and belief Defendants Whitfield and Wilson hacked Plaintiff’s computers at his residence and falsified evidence.”

“Upon information and belief, Defendant Deputy Reimann was the source of information for Defendant Weaver, thus thickening the conspiracy more and more between North Carolina law enforcement and Delaware law enforcement.”

“Upon information and belief, it was common knowledge throughout the legal system in Dover, DE.”

“Upon information and belief, this is when the conspiracy was formed . . . to make it appear that Barbara Wilson was afraid of her husband (Plaintiff) and that he (Plaintiff) was crazy.” [As an aside, Barbara Wilson needn’t have entered into a conspiracy to have accomplished these goals: she simply could have told people to read this complaint.]

The strangest of these “information and belief” structures comes in paragraph 49, when Attorney Wilson writes, “Upon information and belief . . . Beth Greenman called Plaintiff [Linwood Wilson] and advised him that “If you don’t get Barbara away from [her alleged ‘paramour’] Joe he is going to ruin her and destroy your marriage.” The person who wrote these words was a party to the alleged call. This is his complaint. Is Wilson suggesting that he himself doesn’t know if the call occurred (the only reason for an “upon information and belief” construction)?

The anti-Linwood “conspiracy,” Attorney Wilson claims, intensified after his wife discovered that Linwood planned to involuntarily commit her for mental observation. At that point, Barbara Wilson decided to “flea [sic!!] the jurisdiction of North Carolina in order to avoid commitment proceedings.”

Attorney Wilson also appeared to have taken writing lessons from the grammatically-challenged Tracey Cline. Consider, for example, this head-scratching sentence: “Also none of it was relevant to Delaware since, according to Defendant Weaver himself, the fact that all this supposedly occurred in another jurisdiction, North Carolina, which Defendant Weaver had nothing to do with.”

Some of the “evidence” proffered by Attorney Wilson, alas, undermines the position of his client. For instance, Attorney Wilson recounts a conversation between Barbara Wilson and her husband, in which she told Linwood that she wanted the marriage to work, but that she had some “conditions.” That admission might sound damaging to Barbara, until Attorney Wilson reveals the wife’s conditions: that Linwood “was not to call her cell and ask where she was or what she was doing”; and that Linwood was not to “follow” her. If, in fact, the unemployed Linwood Wilson was following his wife around, or frequently calling her up asking her what she was doing, it would seem as if he was engaging in, at the least, emotional abuse; and, at the most, stalking.

In any case, Attorney Wilson says that his client immediately discerned that his wife wasn’t serious in hoping that the marriage would work—a conclusion he based on his “training and experience as a police investigator, private investigator, and District Attorney investigator, for over 38 years.”

Or take this charming anecdote from Attorney Wilson after his wife’s alleged “paramour” visited the “marital home” to check on Barbara Wilson’s well-being. Linwood Wilson admits to screaming at Curtis, “Don’t come into my home, push me out of the way, and disgrace me, my wife, or my home in this way or I’ll blow your f_king head off!” Again: a person charged with spousal abuse is admitting that he threatened to “blow [the] f_king head off” the man he believed was sleeping with his estranged wife.

As the marriage deteriorated, Attorney Wilson admits that his client refused to have sex with his wife, as the “Plantiff knew that would damage his case, if the marriage didn’t work out, from 20 plus years as a private investigator. A field in which Plaintiff had testified as an expert witness over 200 times . . . throughout North Carolina.” Demonstrating his client’s classless nature, Attorney Wilson passes along the fact that his wife “started using dildo’s” to pleasure herself.

The Linwood Wilson who comes through in this complaint is an enraged man, something of a control freak, clearly humiliated by his wife’s apparent infidelity. How he could escape sanctions for filing such a bizarre complaint remains to be seen.

Finally, perhaps the strangest or the many strange clauses from the Wilson filing was the following: “Defendant Eric Campen stated loudly in the lobby of the Durham County Sheriff’s Department and Courthouse in front of Deputy Tom McRae, several unknown deputies, about ten people in the lobby, one [sic] of whom was Victoria Peterson and Richard Porter, “You are a convicted felon! You will never get your guns back! You know better than to even try this!.” “I’ve seen your handy work on the computers, I know how good you are!” The truth is that Plaintiff Wilson has never been convicted of any felony and why was Campen tampering with evidence that he was not authorized to (computer). When Plaintiff Wilson and Richard Porter left the lobby of the Sheriff’s Department several unknown bystanders stated, “We didn’t know you were a convicted felon!” An obvious character assassination and deformation.”

Leaving aside the implausibility that the events occurred even remotely as Wilson described, and further leaving aside Wilson’s hilarious claim that a government official allegedly saying false things about him constitutes “deformation,” the vignette begs the question: what was Durham’s resident bigot and homophobe, Victoria Peterson, doing milling around the sheriff’s office lobby?