Durham DA's effort to remove judge from murder appeal denied
Posted December 5, 2011
Durham, N.C. — A Superior Court judge on Monday rejected an attempt by Durham County District Attorney Tracey Cline to remove another judge from a high-profile murder appeal.
Cline filed motions last month requesting that Judge Orlando Hudson not be allowed to preside over at least three cases, including a hearing set for this week as to whether novelist and one-time Durham mayoral candidate Mike Peterson should be granted a new murder trial.
Cline alleges that Hudson is biased against her after he publicly criticized her handling of several cases, including two that led to murder charges being dropped.
Judge Carl Fox said none of the evidence Cline presented demonstrated a need for Hudson to be removed from Peterson's case.
"There is a lot of verbiage in here that has nothing to do with anything,” Fox said. "These are very serious allegations. In a motion to recuse a judge, there has to be something in these affidavits to indicate that he is biased in this case."
Cline said Hudson's actions in several other cases show "a constant pattern" of prejudice.
"I would not be standing here in the courtroom arguing to you, but for the fact that I think that it’s important for me to not be afraid to do what is right,” she told Fox.
The judge said Cline should pursue her complaint against Hudson with the state Commission on Judicial Standards, not in court.
Peterson's attorney, David Rudolf, called the hearing "a little bit surreal."
Peterson, 68, was convicted in 2003 of first-degree murder in the Dec. 9, 2001, death of his wife, Kathleen. She was found dead in a pool of blood at the bottom of a staircase in the couple's upscale Durham home.
His latest request for a new trial involves claims that a former State Bureau of Investigation agent who testified at his trial lied or misled jurors about blood evidence found in the home.
Hudson presided over Peterson's nearly three-month murder trial, and Rudolf contends he is best suited to determine whether the agent's testimony is valid.
"There is not one iota of evidence – and I defy Ms. Cline to come up with one iota of evidence – that Judge Hudson is prejudiced against the state in Michael Peterson’s case,” Rudolf said.
Cline has asked the the North Carolina Attorney General assume responsibility for Peterson's case, and the agency has agreed to do so only if it is delayed so state attorneys can prepare. Hudson is expected to hear the appeal Tuesday, but there was no word on whether he would grant a delay.
Cline dropped her attempt to remove Hudson from two other cases, although she said she might pursue one again later.
Hudson in August dismissed a murder charge against Michael Dorman, who was arrested last year with a woman's remains in his backpack. The judge ruled that Cline's office helped get the remains cremated before Dorman's attorney could test them independently.
Dorman's attorney is seeking his release, after Hudson ordered him held for a psychiatric evaluation.
Cline said she wants to get Hudson's correspondence in a child molestation case involving David Yearwood before deciding whether to request the judge's removal from the case. Fox is expected to hold a hearing on the matter Wednesday.