Cline's courtroom actions lead to dismissals, appeals (DukeLax ass't District Attorney)

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.

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.

"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."

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.

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.

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."

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.

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.

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.

"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.

"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.

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.

And then the jury came back as he thought, affirming guilty verdicts. Washington's chair at the defense table was empty.

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.

"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."

"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.

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."

Update with some new information.

http://durhamwonderland.blogspot.com/2011/09/cline-on-nifong-lacrosse-case-i-think-i.html

Durham-in-Wonderland
Comments and analysis about the Duke/Nifong case.

Friday, September 09, 2011
Cline on Nifong & Lacrosse Case: “I Think I May Have Generally Given Him Suggestions”

The N&O has released audio of a lengthy (more than two hours) discussion between DA Tracey Cline and N&O journalists. Virtually the entire interview dealt with the ethical breaches revealed in the “Twisted Truth” series. But for 5 minutes, 32 seconds, the two discussed the lacrosse case. Here’s the audio excerpt:

Four particularly striking items from the interview.

First: As you’ll see if you listen to the above, Cline is very, very careful about what she says. After N&O reporter Andrew Curliss initially brought up the topic, she almost snarled, biting out, “What do you mean, my role in the Duke lacrosse [case]?” She then repeatedly paused (a couple of times for a significant period), cut herself off, and retreated to generalities.

Second: Contradicting both the DNA evidence and the attorney general’s findings, Cline described the case as “acquaintance rape situation.” In an acquaintance rape claim, of course, both sides acknowledge that sexual contact occurred, and the only question at play is a matter of consent.

Third: While Cline consistently refused to give a direct opinion on Crystal Mangum’s various tall tales, Curliss noted (correctly) that her description of a prosecutor’s role—a willingness to try hard cases despite a lack of evidence, as long as the prosecutor believes in the “victim”—is almost identical to how Nifong described his motivation in the lacrosse case. Curliss then noticed that Cline was smiling, and asked her why. She coyly responded, “I’m just smiling.”

Fourth: Further confirming her reputation for slipperiness with the truth, Cline managed to offer differing descriptions about three aspects of her role in the case—again, in less than six minutes. The contradictions:

Whether She Had Any Involvement in the Case

Cline claimed that she never talked to Nifong about why he took the case, even though, as the chief sexual assault prosecutor for the county, the case normally would have been assigned to her. Cline further claimed that the case simply “didn’t come to my desk.”

But earlier in the interview, she conceded that the case “was originally going to be mine,” and that, originally, the case did come to her desk. She admitted that she had been the prime mover behind the ethically dubious NTO (which operated under the premise that even lacrosse players for whom the state had no evidence were even in Durham that evening could be required to give DNA).

Whether She Discussed the Case with Nifong

When asked directly about whether she spoke to Nifong regarding the case, Cline confessed, “I think I may have generally given him suggestions,” although she refused to reveal the content of those discussions. But then, less than a minute later and after a lengthy pause, she seemed to deny that she had spoken to Nifong about the case: “If he had asked my opinion, I would have given it to him.”

Whether She Would Have Tried the Case with Nifong

At the start of the discussion, Cline seemed to concede that she would have served as second chair at trial, recalling that “Mike had asked me if the case went to trial if I would help him, because he hadn’t tried a case in a long time.” But then, less than two minutes later, she denied that she would have served as second chair, telling Curliss, “I don’t think so.” She offered no explanation for why this was so, or who would have served as second chair in the trial if she had not done so.

A critical point: this interview occurred on the 28th of July. According to the e-mail stream released by the N&O, at the time of this discussion, Curliss hadn’t uncovered the tape of a 2007 exchange between Cline and the N&O’s Michael Biesecker, in which Cline apparently commented on the lacrosse case. What did she say? Would her 2007 remarks contradict what she told the N&O reporters in 2011? And why has she refused to respond to at least five requests (two from the N&O and three from me) to release the tape?

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