Skip to comments.Cline's courtroom actions lead to dismissals, appeals (DukeLax ass't District Attorney)
Posted on 09/04/2011 11:13:30 AM PDT by abb
First of three parts
DURHAM - The final witness in the trial of Frankie Washington was his prosecutor, Tracey Cline.
Cline had pursued charges against Washington for more than four years, accusing the handyman of burglary, robbery, kidnapping, assault and an attempted sex offense in a frightening West Durham home invasion.
At the trial in late February 2007, Cline was in the witness box, an unusual spot for a longtime assistant district attorney. Washington's attorney, preparing for an appeal, wanted to question her about forensic tests on the evidence - a winter hat, a bandana, a pistol-grip shotgun and a stolen purse.
Crucial testing of the purse and the hat had taken years, delaying Washington's trial. The attorney, Lawrence Campbell, had complained for years about those delays. Now, he wanted Cline to tell the jury what happened.
Cline repeated what she had told a judge in a previous hearing: The state crime lab was responsible for the long delays.
But records tell a different story. Cline had not submitted the evidence to the lab for more than three years. It was Cline's job to ensure that the evidence, along with a judge's order to test it, were sent to the lab.
When the evidence was finally tested, none of it matched Washington.
Washington still was found guilty, but his conviction was thrown out by the state Court of Appeals - and the judges cast doubt on whether he committed the crime. The court cited the prosecution's "repeated neglect."
Cline, now Durham's elected district attorney, has done nothing else on the case. There was DNA in the hat and fingerprints in the purse. But to this day, she has avoided the simple step of having the evidence in Washington's case tested against databases of convicted criminals.
Cline's troubles did not start with the case of Frankie Washington, and they do not end there.
In her quest to convict those accused of serious crimes, Cline has misstated facts to judges in other cases, a News & Observer investigation shows. She has not provided evidence favorable to defendants, as is required under the U.S. Constitution, state law and ethics rules that govern lawyers.
Cline's conduct is under scrutiny for similar behavior in at least five cases other than Washington's that are in various stages of the courts, according to documents and interviews.
Last month, Superior Court Judge Orlando Hudson, the senior resident judge in Durham, dismissed a murder charge against Michael C. Dorman II of Mebane after ruling that the prosecution by Cline violated the man's rights. The evidence in the case, a partial skeleton, had been destroyed before the defense could examine it. His ruling is on hold while Clineappeals.
Earlier this year, Hudson found that Cline and another prosecutor violated the rights of a Durham man by intentionally withholding information while seeking to prosecute him in the death of a 2-year-old girl. Derrick Allen, who maintained he was innocent, was set free.
The judge found that Allen can never receive a fair trial because of what happened. Cline is appealing, saying the child deserves justice, too.
Cline said in a series of interviews and email messages that she takes care in her work, that she speaks accurately, and that she follows the rules. She acknowledged making some mistakes over the years, but she said nothing was intentional, including any misstatements to the courts.
"I would not sit in a courtroom and lie. I wouldn't," she said. "That is not who I am. And anybody that knows me will tell you that. But people make mistakes."
Cline, 48, is a Democrat who has worked in the District Attorney's Office since 1994, when she was hired by Jim Hardin, who is now a Superior Court judge. She specialized in sexual assault cases.
It was a sexual assault case that led to her becoming district attorney. Cline's predecessor and former colleague, Mike Nifong, was stripped of his law license in 2007 after he lied to the courts and concealed DNA tests while leading the investigation of three Duke lacrosse players who were falsely accused of a gang rape.
The lacrosse case generated scrutiny and headlines around the world. Nifong would spend a day in jail for contempt.
When Cline campaigned in 2008 to fill Nifong's term, she often said she wouldn't try to be popular, stressing she wants to do what's right.
Cline said she seeks justice even when it isn't easy.
"There is a need for all of us who are truly interested in justice to follow that path no matter what the consequences," she wrote in one email. "Justice is really its own reward. Never faint for fear of the fallout. There are politics; there are policies, and then there are principles. Which is more important?"
Prosecutors have a special role in the legal system. They are bound by rules and guidelines that prohibit misrepresentation and that say they should pursue evidence even if it will "damage the prosecutor's case or aid the accused."
Court decisions and state law emphasize that prosecutors must provide defendants with important evidence that helps their case.
Cline said in an interview that no system is perfect and that violations of defendants' rights take place all the time. Confessions are thrown out, she said. Evidence is suppressed by judges.
"This happens every day because of a violation of someone's constitutional rights," Cline said. "And, to be sure, sometimes the guilty people go free."
Washington remembers not having a clue why he was stopped.
He had been getting high on cocaine with a girlfriend into the wee hours of May 30, 2002, when he started walking toward his apartment. A police officer cruised by, turned around and stopped him. It was between 3:30 and 4 a.m., according to records and testimony at his trial.
Washington had been headed in the general direction of a frantic scene several blocks away. An all-out police search was under way. Officers pointed spotlights between houses. A search dog was off and running, tracking a scent.
The crime: About 3 a.m., an intruder had entered a home near Duke University's East Campus, waking up a husband and wife and two children.
The intruder led the woman into a den and reached into her pants. He halted the attempted sexual assault when she said she had recent surgery and could die if he continued. The intruder put a gun to her head and demanded money.
She gave him her purse, which had about $150 in cash and a Palm Pilot. The intruder fled. Her husband, who had gone next door to alert a neighbor, squared off with the intruder outside. The attacker hit the husband in the face and ran.
The family identified the intruder as a black man who stood about 6 feet tall, wearing a blue shirt with lettering on it, according to testimony. He wore a bandana over his nose and mouth, and had on a winter hat. They could see only around his eyes and that he might be balding. They said the attacker was probably in his 20s.
Washington is between 5-feet-6 and 5-feet-7. On the night of the attack, he was 42 years old.
When he was stopped, Washington was wearing a blue T-shirt. He didn't have any money.
Requesting a test
Washington remembers being adamant and animated as he was detained, telling the police he didn't break into any house. He recalls asking them to check out where he'd been. He said they wouldn't.
Soon, the police drove the victims to where he was, about a half-mile from their house, according to testimony. Sitting in a police car from 20 feet away, the husband and wife said that Washington was their attacker. There was no other lineup.
Washington was arrested. A police officer found the winter hat. Later that day, a boy spotted other evidence in and near a shallow creek at a city park about eight blocks from the scene of the crime.
The day after his arrest, the police took Washington to Duke Hospital to gather blood and hair for comparisons.
Washington remembers telling the police officer to be sure to get his DNA. That will prove innocence, he remembers saying. "I said, 'If they can convict people with DNA, then DNA should set people free.' I'm willing to give you everything that you need."
Analysts would find a mixture of DNA in the winter hat. There were fingerprints in the woman's purse. The authorities said they would check it all out.
Misstating the facts
When Cline was called to the stand in Washington's trial and asked what took so long, the prosecutor repeated what she had said before.
Cline said the evidence had been sent to the State Bureau of Investigation's crime lab in Raleigh - but that the SBI had not acted quickly.
"We both know how the SBI tests things," Cline testified before Superior Court Judge Henry Hight Jr. "Sometimes it takes months, sometimes it takes years."
In an earlier hearing, she had told Judge Hudson that the delays weren't hers.
"The SBI lab is backed up," she told Hudson, according to a transcript.
But records, other testimony and the Court of Appeals decision present a much different picture. Some of the evidence was not at the SBI lab.
Documents and transcripts show that Washington raised objections to the pace of the testing at least five times between May 2002 and June 2005. At one point, in 2004, Superior Court Judge Ronald Stephens ordered the tests performed. But Cline didn't send the evidence to the SBI for another 17 months, records show.
"The primary reason that the SBI did not complete its analysis of the State's evidence until January of 2006 was not a neutral factor, but rather, was a factor wholly within the prosecution's control: the prosecution's failure to submit the evidence to the lab prior to August of 2005," the appeals court ruled.
Once the testing was in, it was all favorable to Washington: None of the fingerprints or DNA on the evidence matched him.
Cline didn't drop the charges. She offered a plea that would have let Washington go with probation, records show. He refused.
Washington remembers barely discussing it with his family. "If I had committed the crime, then it'd have given me something to think about," he said.
The appeals court cited the long delay in the testing when it tossed out the case; Washington's right to a speedy trial was violated.
"The delay could have been avoided if the State had exercised even the slightest care during the course of this prosecution," the court ruled.
The ruling was written by J. Douglas McCullough, a former federal prosecutor who has tried more than 100 criminal cases. He declined to comment. He was joined in the opinion by Judges Donna S. Stroud and John M. Tyson.
In an interview, Cline did not recall her testimony at the trial. She said she thought Durham police had sent the evidence to the SBI for analysis at the time she was blaming the lab for delays. But she acknowledged she was mistaken each time.
"In this case, we should have done more," she said.
Cline said that she has put procedures in place to safeguard against oversights such as "the omissions" in the Washington case.
She said she also has a regret: The woman in the case was so traumatized that for a long time she could not testify, Cline said. It was another reason for delays in the trial. Cline said she wishes now that she had done more to bring that to the court's attention.
The N&O obtained the appeals court judges' notes on the case, and they show that there was concern about more than the tests: There was an alternate suspect.
His name is Lawrence Hawes, and he had served more than a decade in prison after pleading guilty in the rapes of two Duke University students in the late 1980s. He was released in 2001.
In March 2002, a man wearing a bandana broke into a West Durham home and pointed a shotgun at the victim, then raped and robbed her.
A rash of similar break-ins and assaults in the neighborhoods surrounding Duke's East Campus had police on alert by the time Washington was arrested in May 2002.
The break-ins continued after Washington's arrest and for months while he was in jail.
Hawes was arrested in September. Police seized from his car four different types of caps and a bandana. He is about 6-feet-1. Hawes lived near the area of the crime, about a block from where Washington had been arrested.
Records show that Hawes' DNA matched the DNA taken from the victim in the March attack. He went to trial and was convicted in June 2003 - less than a year after his arrest - and was sentenced to at least 96 years in prison. Cline was the prosecutor.
In all, police would attribute nine other break-ins and assaults in that area to Hawes; five were after Washington's arrest.
No further tests
Washington's attorney noticed when Hawes was arrested.
Within three weeks, Campbell sought to compel testing and comparisons on the evidence against both Washington and Hawes. The judge in that hearing denied the motion but directed Cline to ensure the testing was done.
In the appeals court's files, there is a printout of Hawes' mug shot.
"The record shows that despite the defendant's 2002 request, the State never submitted a request to the SBI lab that any of the physical evidence in this case be compared to the known fingerprints or DNA profile of Lawrence Hawes," the court said in 2008.
The fingerprints from the purse weren't run against any other state systems, the court noted. DNA found in the hat also was not compared with a state database.
The failure to compare, the court wrote, "is evidence of the State's repeated neglect of this case over the course of the prosecution."
Since that ruling was issued in late 2008, no additional tests have been performed, according to the SBI and the Durham Police Department.
The N&O has sought in the past two months to have the evidence tested against any other possible suspects.
The SBI said it could not act on a request from the newspaper but would test the evidence against others if given a lawful request. Cline can do that, but she hasn't.
Cline said there is no reason to look elsewhere.
"It was clear to me that Frankie Washington was the person who did it," she said. "There was never any doubt in my mind that he committed the offense."
The Durham Police Department, in a statement, said its forensics work "was used to rule out any other suspects in the Frankie Washington case."
Given that there were no matches to Washington, The N&O asked the police to clarify the statement. A police spokeswoman wrote that police are "confident in the quality of the investigation involving Frankie Washington."
"We will not release specific details concerning forensic testing or investigative techniques in this or any other case," said the spokeswoman, Kammie Michael.
In an interview at the prison where he is serving time, Hawes denied having anything to do with the crime for which Washington was accused.
Hawes said that tests would clear his name, too.
"It wouldn't be mine," he said of the DNA evidence.
The lack of a DNA or fingerprint match didn't matter to the jurors who decided Washington's guilt.
According to interviews with several of them, the jury relied mostly on testimony from the family that Washington was the man who was in their home. Washington didn't testify. (See related story.)
After being contacted by The N&O, the jury foreman obtained the appeals court decision and read it himself. The decision has received such little notice that four jurors reached for this report were all unaware the case had been tossed out.
The foreman, Edward Couch Jr. of Durham, said he was upset by what happened to Washington.
"What disturbs me about the whole case is the inability of the Durham County judicial system to do its job," Couch said.
"All of that stuff with the district attorney not doing their part is really disturbing."
Another juror, a fire captain, recalled the jury taking a vote in the early stages of deliberations. Only one person thought Washington was guilty from the outset, he said. He recalls that one or two thought Washington was innocent.
Just before the jury went behind closed doors to deliberate, Washington remembers studying their faces. He had a feeling: They were going to find him guilty.
He went outside to smoke a cigarette - he wasn't in custody at the time - and he kept walking. He didn't go back. He remembers crying as he walked along the road to see a family member in Chapel Hill. He thought about finding a gun and killing himself, he said.
The judge issued a warrant for his arrest.
And then the jury came back as he thought, affirming guilty verdicts. Washington's chair at the defense table was empty.
'I'm an innocent man'
A few days later, the police tracked Washington down, and he appeared for sentencing. It wasn't his first time in trouble. His record included prison time on convictions for resisting an officer, possession of drugs, larceny and a misdemeanor breaking and entering.
Washington stood up. The judge asked whether he had anything to say.
"Listen, I'm an innocent man," he told the judge. "I'm sorry for what happened to (the family). All of the evidence showed that I did not commit this crime. ... I'm innocent, man. I'm innocent, man. I'm innocent."
Washington told the judge he would have taken a plea offer if he had done it.
"I don't even know these people," he said. "I never seen this man a day in my life, man. I'm sorry for what happened to them, but I'm innocent, man, and all I can say is I'm innocent. That's all I can say."
He continued, saying eight more times that he was innocent, before he collapsed.
The judge gave him at least 57 years in prison. At age 46, it was essentially a life sentence.
2 years, 7 months
Washington was lying in a prison bunk in Elizabeth City when he heard that a court had ruled in his favor.
"That day, if I had never been a star, I became an instant celebrity in prison," he said.
The state didn't appeal, and three weeks later, he was set free. He had spent two years, seven months behind bars.
Only later did Washington receive the actual document, which spelled out how he'd been wronged and who had done it. In it, the court specifically cited Cline's testimony, which came after it was clear that she had failed for years to submit the evidence.
"Assistant District Attorney Cline testified that it can take 'years' for the SBI to fully test an item," the court said. "This assertion, however, is simply unsupported by the evidence of record."
It's not the only time that Cline's words haven't matched the facts.
News researchers Brooke Cain and Peggy Neal contributed to this report.
email@example.com or 919-829-4840
Sticking with a story
No DNA? No problem
Withheld evidence fuels appeals
To see documents, a map and a timeline on the case, go to newsobserver.com/twistedtruth.
what delayed the tests?
What Cline said in court
Tests of all the evidence were delayed for years in the case of State vs. Frankie Washington. Prosecutor Tracey Cline said the delays were caused by the State Bureau of Investigation crime lab. In March 2004, a judge issued an order that compelled the tests to be performed. In a June 2005 hearing, Cline told a judge, “The SBI lab is backed up. We’re doing the best we can.” In 2007, Cline testified that it can take years for the SBI to test. She still did not acknowledge that the court order and key evidence had not been sent to the crime lab until after the June 2005 hearing.
What the record shows
After a judge issued an order in 2004 to compel testing, Cline didn’t send the order to the SBI. None of the analysts received it, according to their testimony. Records show that key pieces of evidence - a hat and fingerprints for matching with a stolen purse - were not tested until August 2005. Final SBI reports were written in January 2006.
Cline responds now
The evidence “wasn’t sent off ... and I thought it was. I should have verified that it was. And now we do. And I take full responsibility for that. I’m the prosecutor. I should have followed through. And now we do.”
Could Washington sue?
Frankie Washington does not have any grounds for a civil suit that would involve Tracey Cline, who receives broad immunity as a prosecutor. But Washington is in contact with a lawyer and is considering a civil suit against the city of Durham based on its police investigation.
Tracey Cline, in her own words
“All of us as citizens have to realize that the Constitution protects the rights of the guilty and the innocent. And we would not want it to be any other way. Every day we go to court - or in every jurisdiction in North Carolina, South Carolina, probably all the 50 states - there’s evidence that’s thrown out because of constitutional violations. There’s confessions that are thrown out. There’s evidence that’s suppressed. Everything. This happens every day because of a violation of someone’s constitutional rights. And, to be sure, sometimes the guilty people go free.”
Hometown: Crouse, N.C.
Education: Livingstone College; law school, N.C. Central University
Career: Assistant public defender, Fayetteville, 1989-1993; assistant district attorney, Elizabeth City, 1993-1994; assistant district attorney, Durham, 1994-1997; private practice, 1997; assistant district attorney, Durham, 1998-2008; elected district attorney, 2008; re-elected with no opposition, 2010.
Did a ‘show-up’ lead to a mistaken ID?
anybody that thinks this is only one or two people in NC does not recall the crap that happened in the 80’s with a daycare center when charging a husband and wife with sex crimes - all of them thrown out after years of crap - a lost marriage and so much more. there is too much of this type of junk that looks like law and order and is in fact CRIMANAL activity by elected officals and their staff.
This sort of criminal abuse, where DAs are more interested in fame, fortune, and re-election than they are in justice, is all too common almost everywhere around the country. But Raleigh Durham sure seems to be a cesspit of blatant corruption.
I read the article. She should be in jail, not puting people in jail.
It's been years since I read it, but this article sure made his remarks ring true.
She taught a paralegal course I took over 10 years ago; I’m now in my 3rd year of law school because she encouraged me to pursue law school...just took me a while to get here because hubby was in the Army and was wounded, kids, had to finish my undergrad, etc. Never would have imagined this type of stuff from her, but then again, Durham is a pretty corrupt city and we know what Nifong did. We are talking about moving back to NC once I graduate. Guess Durham is off the list.
The entire legal systems of major metropolitan areas were complicit in fraud and derelict in their actions, and many innocent people paid dearly as a result of lawyers', ignorant police chiefs' and their whorehouse social workers' days of fame and publicity.
Maybe it is sampling error, or just anecdotal, but the worst prosecutorial abuses that I am aware of (and that may be the key) are by Democrat DAs. The conventional wisdom would have it that law and order right wingers would be the culprits. Does anyone have a theory based on more than thin air?
Hard to know if she is cognitively incapable or if she is corrupt.
It’s Durham. Probably both.
Thanks for this stuff, abb.
Sounds very familiar.
It’s why I try hard to avoid Durham County when I drive in NC.
Published Mon, Sep 05, 2011 03:03 AM
Modified Mon, Sep 05, 2011 05:52 AM
Misstatements in court, questions about evidence
BY J. ANDREW CURLISS - Staff Writer
Published in: Twisted Truth
DURHAM Second of three parts
Tracey Cline fought hard to keep David Yearwood locked up.
It could be that there are simply more Democrat DAs than Republican DAs. The press is overwhelmingly Democrat and are often loathe to go after members of their own party nearly as ferociously as they would investigate members of the opposition party.
Yearwood could be guilty of the crime he is serving time for. Cline is clearly a criminal and should be in prison.
Just Durham. Raleigh is somewhat better.
Published Tue, Sep 06, 2011 04:02 AM
Part 3: Information kept from defendants in two Durham cases
BY J. ANDREW CURLISS - Staff Writer
Published in: Twisted Truth - Last of three parts
Published Tue, Sep 06, 2011 04:40 AM
State Bar stays mum
BY J. ANDREW CURLISS - Staff Writer
Published in: Twisted Truth
Published Tue, Sep 06, 2011 04:40 AM
Cline’s arguments: One death, but two stories
BY J. ANDREW CURLISS - Staff Writer
Published in: Twisted Truth
Remember this? Hits a little close to ‘home’ ...
Officials: DA interest probed - Activists deny approaching assistant prosecutor Cline
Herald-Sun, The (Durham, NC) - Friday, September 29, 2006
Author: JOHN STEVENSON
Durham Judge David Q. LaBarre and Durham Assistant District Attorney Tracey Cline said Thursday that political activists approached them about accepting a possible gubernatorial appointment as Durham’s chief prosecutor.
Both said they weren’t interested.
The person Cline said approached her with the offer, lawyer Jerry Clayton, denies he did so. LaBarre would not identify the people he said approached him.
The top prosecutor’s job would be open to appointment if County Commissioner Lewis Cheek, the only candidate on the ballot besides District Attorney Mike Nifong, won the Nov. 7 election.
Cheek got enough petition signatures to put his name on the ballot. But after weighing the situation for weeks, he finally declared he would not serve if he won — which would force Gov. Mike Easley to select someone in his place. Despite Cheek’s decision not to serve, his name remains on the ballot as an unaffiliated candidate.
A third district attorney candidate, local Republican Party Chairman Steve Monks, is running on an unaffiliated, write-in basis.
Dissatisfaction with Nifong’s handling of the controversial Duke University lacrosse rape case has fueled much of the campaign rhetoric so far, with some voters mounting an “anybody-but-Nifong” initiative.
Cline said Thursday that Clayton asked her about accepting a gubernatorial appointment as district attorney if Cheek won. According to Cline , Clayton suggested that retired Sheriff Roland Leary and state employee and former City Councilman Ed Pope were behind his overture.
Cline said she spurned the idea.
“I am not involved in the political game here,” she said. “I am not involved in any political maneuvering whatsoever. The voters should determine who is the next DA of Durham County. I have always supported Mike Nifong as DA and I continue to do so.”
Clayton denied he discussed the situation with Cline .
“All I can do is deny it because I don’t know anything about it,” he said Thursday. “I’m not in any camp, working for anybody or doing anything in regards to the election.”
But in the past, Clayton has been deeply involved in district attorney politics. He provided heavy support for two unsuccessful candidates: Pat Evans in the 1990s and Freda Black in a Democratic primary four months ago. Black now works for Clayton.
Like Clayton, Leary and Pope denied any maneuvering in the November election.
“I know nothing of what you speak,” Leary said Thursday. “Of course, rumors are abounding. But Roland Leary has done nothing in that direction. That’s just not right. I deny that.”
Even if he wanted to manipulate a possible gubernatorial appointment, he didn’t have the influence to do so, Leary insisted.
“I find the governor to be an independent person who makes his own decisions,” he said. “I don’t know who influences him. I certainly can’t influence him. ... I know the governor, but I’ve never spoken to him about appointments to any office at all.”
Pope said it “would be silly” to make empty promises about an appointment that would be entirely in the governor’s hands.
Cheek also said he was not involved in discussions about the situation.
“I have no idea who is having that conversation with anybody,” he said. “I’m not involved in anything like that at all. I don’t know anybody who is. But I can’t say it surprises me. I expect there are a whole lot of things going on behind the scenes. That’s the nature of politics.”
LaBarre, a retired Superior Court judge who now presides two days a week on the District Court bench, declined Thursday to say who approached him.
He said only that “several different individuals from several different political camps inquired about my interest in the DA’s Office.”
LaBarre said he turned them away.
“In my judgment, a judge should not be involved in the DA election,” he added. “I do not intend to be even indirectly involved. The voters have several choices in the DA’s race. I would not want my name injected into it as any sort of inducement to vote or not vote for any particular candidate.”
Nifong said Thursday it was his understanding that inducements had, in fact, been made.
“I was told Roland [Leary] and Ed [Pope] were making claims or promises or whatever to members of the African-American community that if they would vote for Lewis Cheek, then Tracey Cline would be the next DA,” said Nifong.
“I also heard they made representations to the white community that if they voted for Lewis Cheek, then Dave LaBarre would be the next DA,” Nifong added.
Cline is black; Cheek is white.
“People have accused me of dividing the community with the lacrosse case,” the district attorney said. “It seems to me the lacrosse case has merely revealed divisions that already existed. This ongoing campaign by Roland Leary and Ed Pope is the most divisive thing I’ve ever seen.”
Meanwhile, Nifong confirmed Thursday that Pope had asked him to intercede on behalf of a Durham man named Christopher Andrew Best who is imprisoned for armed robbery.
“Ed came to me and asked if I would do something to reduce his sentence,” Nifong said. “I told him I had no authority to do that and no one else in the court system did either.”
Pope acknowledged he asked Nifong about Best, saying he did so because he was acquainted with the convicted man’s family.
“It wasn’t an influence thing or anything like that,” he said. “I was just asking him for a little help. I didn’t know what he could or could not do as district attorney. It had nothing to do with the election.”