Should judge or NC Bar determine Durham DA's fate?
Posted January 19, 2012
Durham, N.C. — A lawyer's decision to challenge Durham County District Attorney Tracey Cline's fitness for office puts the issue in the hands of a judge, but some legal experts said Thursday that it might be better handled by the North Carolina State Bar.
Defense attorney Kerry Sutton filed an affidavit Wednesday that alleges Cline has "brought the office of the Durham County District Attorney and the entire Durham County justice system into disrepute."
The filing is the first step required by law to remove Cline from office.
State law allows for the removal of a district attorney under seven conditions:
- Mental or physical incapacity interfering with the performance of duties
- Willful misconduct in office
- Willful and persistent failure to perform his duties
- Habitual intemperance
- Conviction of a crime involving moral turpitude
- Conduct prejudicial to the administration of justice which brings the office into disrepute
- Knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal
Sutton claims in her affidavit that Cline is guilty of both habitual intemperance and prejudicial conduct. She declined to comment further on Thursday.
Cline has repeatedly accused Superior Court Judge Orlando Hudson in recent months of bias against her and has asked to have him barred from handling criminal cases in Durham County. Two other Superior Court judges have found Cline's complaints to be groundless.
”There is a lot of anger and disgust among lawyers in Durham County, as well as in the population," said Irving Joyner, a law professor at North Carolina Central University. "It has undermined confidence in the Durham County courthouse and what is going on there.”
Still, some question whether having a judge handle the issue is the best decision.
"The (State) Bar is better equipped to evaluate her conduct, to look at all the transcripts, look at all the evidence and evaluate if she has crossed the lines,” Durham attorney Scott Holmes said.
The State Bar cannot publicly comment on proceedings against an attorney, but the agency recently requested more than 1,250 pages of documents from the Durham County Clerk of Superior Court related to cases Cline cited in her initial complaints against Hudson.
A vocal critic of Cline's actions, Holmes said he had discussed with other lawyers filing an action similar to Sutton's.
”Many attorneys are welcoming this as a positive development to try and resolve this sooner rather than later," he said. ”Someone is going to have to evaluate her conduct, whether it’s a judge in a removal action or the Bar and instruct her to stop or take her out of the position so she will not continue to inflict that kind of harm on the system.”
A complaint was filed against former Durham County District Attorney Mike Nifong for his handling of false rape allegations against three Duke University lacrosse players in 2006, but Hudson took no action on it, choosing to wait for the State Bar to discipline Nifong.
As chief Superior Court judge in Durham, Hudson will have to decide how to handle Sutton's complaint against Cline, including whether to have another judge take over to avoid any conflict of interest. His assistant said he hasn't yet decided how to proceed.
”I think that a quick resolution of this one way or another will better serve the interest of all of the people,” Joyner said.
Although he called the removal of any district attorney "very rare," he said, "You have to think that it is certainly a dangerous situation for her."
The only case in the last 20 years where a district attorney was removed following a complaint occurred in New Hanover County in the early 1990s, when Jerry Spivey was ousted after using racially charged language in public, state officials said.
Cline emailed a statement to WRAL News late Wednesday, saying that she would continue to fight for truth and justice in Durham County.
"There should be nothing more important to the fair administration of justice than the truth," she wrote.
"The district attorney must not bend or bargain for the power to possess the elected office. In doing so, the truth is lost, and justice can only die," she continued. "As for me, it is simple – seeking truth and justice is what must be done, and yes, at all costs."