Topics covered in this post include:
1. What is the Derrick Allen case?
2. What did Judge Orlando Hudson rule in the Derrick Allen case?
3. What does the state AG’s office appeal on behalf of Tracey Cline say about that?
4. What has Judge Robert H. Hobgood said about Hudson’s decision?
5. What are some key documents to read about this case?
Durham District Attorney Tracey Cline has filed formal notice that she will not now challenge Judge Orlando Hudson's written order in the Derrick Allen case.
Cline had said that she disputes parts of the 46-page order, and indicated she would seek to have the judge reconsider his ruling.
Hudson had said he saw no reason to change his order based on what he understood Cline's objections to be.
Later, Cline said she was researching to see if Hudson still had jurisdiction.
Cline's latest notice, filed Wednesday, says she is withdrawing any and all oral requests for the judge to reconsider the motion and that it is based on a lack of jurisdiction. She noted that the state has filed a formal notice of appeal with the N.C. Court of Appeals, and the case will be dealt with there.
Separately, Hudson is set to amend his ruling based on a separate objection from the SBI. The SBI did not request the change, though, because it does not have standing before the judge.
In that aspect of the case, the judge is acting on his own.
The acting director of the SBI crime lab says that Judge Orlando Hudson got a fact wrong in the 46-page order released last week that found egregious errors in tossing out murder and sex assault charges against a Durham man.
Joseph R. John Sr., the acting State Bureau of Identification lab director, wrote to Hudson, the senior resident judge in Durham County, to alert him that he might not have known "the true state of affairs" in an aspect of the case dealing with whether evidence still exists.
Hudson issued a written finding that, after a two-day hearing in December in which SBI agents testified, the evidence in the case had been destroyed by the SBI.
"The Court is unable to determine when such items were destroyed based on an intentional suppression of information by the State Bureau of Investigation and by the Office of the Durham County District Attorney," Hudson wrote. "Any independent testing of these items is now impossible."
It was not a major thrust of his ruling.
John wrote that he researched the issue after reading the ruling.
"It is neither my intent nor desire to comment in any manner upon the Court’s Order," John wrote. "However ... I must report that examination of evidence here in the Lab and of Lab records indicates that no submitted evidence in the above‐referenced cases has been 'destroyed' by the State Bureau of Investigation."
He said that the SBI still has blood samples taken from the victim, a 2-year-old girl, and from the defendant, Derrick Allen.
All of the other items from 1998 case, including clothing and other evidence that had been submitted for testing, were long ago returned to the Durham Police Department, John wrote.
Durham District Attorney Tracey Cline said that the other evidence also has not been destroyed.
"The evidence is in the property room at the DPD and has been available for testing by the defense since 1999," Cline said.
The SBI did not ask Hudson to amend his ruling, which is already being appealed by the state.
Cline has indicated she disputes portions of the ruling that implicated her in withholding crucial evidence from Allen. She said she is considering whether filing a motion seeking changes is appropriate.
The judge's ruling on the destruction of evidence stems from testimony at a two-day hearing in December.
In that hearing, a letter was introduced as evidence from the state medical examiner's office -- which is separate from the SBI -- that said its specimens in the case had been destroyed. The medical examiner conducted an autopsy.
In the hearing, Allen's lawyer said that attempts to ascertain whether the SBI still held any evidence had been rebuffed -- and that the state had not disputed assertions that the evidence was gone.
An SBI analyst who handled the evidence, Jennifer Elwell, was asked about an SBI policy that says items "may be destroyed" after five years.
Elwell testifed that no one had asked her to check to see if the items in this specific case had been destroyed. But Elwell indicated that she didn't think that would have happened, pointing out that the policy says "may" and is not definitive.
"Were you aware that I had a private investigator call the SBI and they refused to disclose the information to him?" Allen's lawyer, Lisa Williams, asked Elwell in the hearing.
"No, I was not," Elwell said.
"Is that the policy of the SBI to refuse to do that?" Williams asked.
Elwell responded: "I do not know."
In the hearing, the state did not bring in other testimony or evidence to show whether the case's evidence existed or not.
UPDATE 1: Williams says today she is surprised to hear that some of the evidence is at the police department.
Williams writes: "I made a specific discovery request to determine whether or not the samples from the child were destroyed. The State did not disclose the information. I had my PI to contact the lab and the ME on November 1, 2011. The SBI would not tell us [if] they had destroyed the samples. I obtained a court [order] ordering the State to say if the samples were destroyed. They did not provide the information. The hearing occurred on 12/9 and 10 because Cline told Hudson they were ready and would provide the information... The evidence before the court was consistent with the evidence either ... being destroyed or the State completely ignoring the court order."
UPDATE 2: John says the SBI did not make any specific requests of the judge because he believes the agency does not have the legal standing to do so.
UPDATE 3: Hudson said in an interview that he intends to amend his ruling to relflect that some of the evidence in the case has not been destroyed. He said it does change any of the fundamental aspects of his ruling. "It won't change the substance of the order," Hudson said.
Click below to read the SBI's letter to Hudson.
Durham prosecutors and the State Bureau of Investigation violated the U.S. and state constitutions and state law by withholding key evidence from Derrick Allen in the 1998 sexual assault and death of his girlfriend's 2-year-old daughter, a judge ruled Thursday.
Superior Court Judge Orlando Hudson, using unusually strident language, said the actions of the state's lawyers and analysts were willful, intentional, deceptive, fraudulent, flagrant and egregious.
Hudson, the senior resident judge in Durham, had already ruled on the case orally after a two-day hearing in December in which he tossed out murder, sexual assault and child abuse charges against Allen, a Durham man who spent 12 years in jail.
In the 46-page order released Thursday, he blamed the SBI and lawyers in the Durham District Attorney's Office for not playing straight with blood evidence and for withholding other information that would have been helpful to Allen's defense.
Allen always maintained his innocence - to police, to the child's family and in a jailhouse interview with The News & Observer - and had wanted a trial. But in 1999, he agreed to an Alford plea, meaning he didn't admit guilt but acknowledged there was evidence for a jury to convict him. He was sentenced to at least 43 years, but avoided a possible death penalty.
"It is no longer possible for Mr. Allen to ever receive a fair trial," Hudson wrote.
This is the order released today by Durham Superior Court Judge Orlando Hudson in the Derrick Allen case.
It is about 50 pages long.
Click "read more" to view it.
By J. Andrew Curliss, staff writer
Durham prosecutors and the State Bureau of Investigation broke state law and violated both the U.S. and state constitutions as they sought the death penalty against a Durham man in the death of his girlfriend’s daughter 13 years ago, according to a judge’s written order that was signed today.
The state intentionally kept information from the man, Derrick Allen, that would have helped his defense.
Those multiple violations by prosecutors and the SBI were willful, flagrant, deceptive, intentional, fraudulent and egregious, according to the order by Durham County Superior Court Judge Orlando Hudson, the senior resident judge in Durham.
Charges against Allen had already been dismissed by Hudson after a two-day hearing in December.
Hudson had ruled from the bench orally.
His written order today is his definitive conclusion in the case.
“It is no longer possible for Mr. Allen to ever receive a fair trial,” Hudson wrote.
The state has already filed notice of appeal, and Durham District Attorney Tracey Cline had said she believes the case could go forward.
Allen has maintained his innocence from the time he was first arrested in the death of 2-year-old Adesha Artis. (For deeper information on the case, from beginning to end, please click here.)
Allen was freed in September amid deep questions about how the SBI handled his case as well as prosecutors’ apparent withholding of crucial evidence that was favorable to him.
The main prosecutor on the Allen case was former assistant district attorney Freda Black, now in private practice. The order says that Black disregarded other judge's orders and intentionally misled the courts about evidence in the case.
A key statement she made was that the child's panties were bloody, and that was the most significant evidence against Allen. But records show the SBI had run confirmatory tests for blood on the garments twice, and both were negative. Those negative results were not explained to Allen or his lawyers in what Hudson said was an intentional effort to hide that information from him.
Reached for an interview, Black said she vehemently disagrees with that conclusion. She had testified in a December hearing that she was unaware of the actual test results.
“I’ve never lied to a court or misstated evidence to a court in my life,” Black said.
But Hudson wrote in his order that phone logs and testimony showed Black discussed the test results on the case at the time with SBI agent Jennifer Elwell.
Of Black's testimony, Hudson wrote, "the Court does not find that testimony to be credible."
Allen is now enrolled in community college classes and has been looking for work.
Background and other information in the Derrick Allen case
(Click here for a brief timeline in the case of the State v. Derrick Allen.)
The initial story on the case from February 1998 reported on the death of a 2-year-old girl, Adesha Artis, in an apartment complex in southwest Durham. The child's mother was at work att the time.
Her boyfriend, Derrick Allen, then 19, and been caring for the child with a cousin that day. But he was alone with the child in what would be Adesha's final 30 minutes alive. Allen called 911 at about 2:30 p.m., reporting that he was trying to save the unconscious child.
Allen was held by police later that day.
The next day, Allen denied in a jailhouse interview that he ever harmed the child. He has maintained innocence ever since.
He would be charged with first-degree murder and first-degree sexual assault. Later, prosecutors announced they would seek the death penalty.
In August 1999, Allen agrees to a plea deal to avoid the death penalty and is sentenced to a term that should put him behind bars for about 50 years. His plea is an Alford plea, meaning he does not admit guilt but acknowledges that a jury could have convicted him.
Almost immediately, Allen begins a one-man fight from prison to undo his plea.
In 2004, Allen wins at the state Court of Appeals on his effort to secure a retrial. A high school dropout, he had represented himself.
The case is sent back to Durham for review, reset to its starting point with Allen facing the initial charges. Years pass. Along the way, Allen fires two lawyers who he does not believe were fighting for him.
In August 2010, the State Bureau of Investigation comes under fire on a number of fronts, including in a highly critical audit of the agency's practices in reporting results of blood testing. The audit lists more than 200 cases in which there are questions.
Allen's name is on the list.
On Aug. 29, The News & Observer published a detailed account of the Allen case that raises fresh questions about the blood work in his case and about prosecutors' handling of evidence. "This year, Derrick Michael Allen is seeing for the first time important information about the murder and sex assault case that was first brought against him 12 years ago," the newspaper reports.
About two weeks later, Durham County Superior Court Judge Orlando Hudson convened a bail hearing in the Allen case. Allen was set free with no bail.
In December, Hudson held a hearing on whether the charges should still remain.
The SBI agent on the case rejected the critical audit, directly disputing Attorney General Roy Cooper's position on it. Other testimony showed that the current DA in Durham, Tracey Cline, was also involved in the case's handling from the beginning.
The next day, after more testimony, Hudson dismissed all the charges against Allen, citing "extremely disturbing" work by the SBI. The judge ruled from the bench orally, saying a written order would come later.
Allen said: "My life just changed."
He has enrolled in community college classes and has been looking for work.
Today, Hudson said in a written order that there were multiple violations by prosecutors and the SBI in the case that were willful, flagrant, deceptive, intentional and fraudulent.
Aug. 27, 1999: Man gets long term in death of child
By John Sullivan, staff writer
DURHAM - Reading from a 4-inch binder and wearing a gold bracelet with a little-girl charm dangling from it, prosecutor Freda Black told a judge Thursday why Derrick M. Allen should spend at least 43 years in prison for the sexual assault and killing of a 2-year-old girl in February 1998.
Superior Court Judge Leon Stanback accepted Allen's guilty plea to one count of second-degree murder and one count of first-degree sexual assault.
Stanback imposed two sentences, which will be served consecutively for a minimum of 43 years and a maximum of 54 years. Allen, 20, could have faced the death penalty had he been convicted of first-degree murder, the offense with which he was originally charged.
Blacksaid the plea agreement accomplished the state's goal in the case.
"We wanted something that would equate to a life sentence, " Black said. "Given that correction officials say many defendants end up serving closer to the maximum sentence than the minimum, he won't get out until he is 70 years old."
Allen, flanked by defense attorney Steve Friedman from the Center for Death Penalty Litigation and Public Defender Bob Brown, answered Stanback's questions with a subdued "yes" almost before the judge finished asking them.
Then he sat as Black detailed the state's case for the court, a procedure intended to give the judge enough evidence to show the plea is warranted.
Blacksaid Allen was caring for Adesha Artis on Feb. 9, 1998, while the girl's mother was at work. A witness who is related to the mother and was there that day told police that Allen became angry at the child after she had wet herself.
Allentook the child to the bathroom. Above the noise of a fan, the witness heard Allen punishing the child. Afterward, Allen changed the girl's clothing. Police later found some of the bloodstained clothes.
The witness said that just before she left the apartment at the Wellington Place complex off Garrett Road, she saw the girl shaking and walking with a limp.
Later, Allen laid the child down and the witness left. Half an hour later, Allen called 911, saying the child was having trouble breathing and had heart problems.
When paramedics arrived, they noticed blood on the child's jumpsuit and immediately suspected that a sexual assault might have occurred. Allen was arrested after doctors attempting to revive the girl found evidence supporting the paramedics' suspicions
At the hospital, Black said, Allen lifted the sheet covering Adesha's body and looked at the area that doctors had examined for evidence of the sexual assault.
He was later charged with murder when a medical examiner's report showed that Adesha had died from shaken-baby syndrome, which occurs when a child's delicate brain bounces against its skull, producing bleeding and swelling that are often fatal.
Allendeclined to comment Thursday, but one of his attorneys, Brown, said the sentence imposed by the court was fair.
Aug. 27, 1999: Man gets long term in death of child
By John Sullivan, staff writer
DURHAM - Reading from a 4-inch binder and wearing a gold bracelet with a little-girl charm dangling from it, prosecutor Freda Black told a judge Thursday why Derrick M. Allen should spend at least 43 years in prison for the sexual assault and killing of a 2-year-old girl in February 1998.
Superior Court Judge Leon Stanback accepted Allen's guilty plea to one count of second-degree murder and one count of first-degree sexual assault.
Stanback imposed two sentences, which will be served consecutively for a minimum of 43 years and a maximum of 54 years. Allen, 20, could have faced the death penalty had he been convicted of first-degree murder, the offense with which he was originally charged.
Blacksaid the plea agreement accomplished the state's goal in the case.
"We wanted something that would equate to a life sentence, " Black said. "Given that correction officials say many defendants end up serving closer to the maximum sentence than the minimum, he won't get out until he is 70 years old."
Allen, flanked by defense attorney Steve Friedman from the Center for Death Penalty Litigation and Public Defender Bob Brown, answered Stanback's questions with a subdued "yes" almost before the judge finished asking them.
Then he sat as Black detailed the state's case for the court, a procedure intended to give the judge enough evidence to show the plea is warranted.
Blacksaid Allen was caring for Adesha Artis on Feb. 9, 1998, while the girl's mother was at work. A witness who is related to the mother and was there that day told police that Allen became angry at the child after she had wet herself.
Allentook the child to the bathroom. Above the noise of a fan, the witness heard Allen punishing the child. Afterward, Allen changed the girl's clothing. Police later found some of the bloodstained clothes.
The witness said that just before she left the apartment at the Wellington Place complex off Garrett Road, she saw the girl shaking and walking with a limp.
Later, Allen laid the child down and the witness left. Half an hour later, Allen called 911, saying the child was having trouble breathing and had heart problems.
When paramedics arrived, they noticed blood on the child's jumpsuit and immediately suspected that a sexual assault might have occurred. Allen was arrested after doctors attempting to revive the girl found evidence supporting the paramedics' suspicions
At the hospital, Black said, Allen lifted the sheet covering Adesha's body and looked at the area that doctors had examined for evidence of the sexual assault.
He was later charged with murder when a medical examiner's report showed that Adesha had died from shaken-baby syndrome, which occurs when a child's delicate brain bounces against its skull, producing bleeding and swelling that are often fatal.
Allendeclined to comment Thursday, but one of his attorneys, Brown, said the sentence imposed by the court was fair.
July 24, 1999: Reporter's notes not shielded
By Lynn Bonner, staff writer
The state Supreme Court let stand Friday a lower court ruling allowing Durham prosecutors access to notes of a News & Observer reporter's jailhouse interview with a defendant later charged with murder.
The court said it shouldn't have allowed the newspaper to appeal. Left standing are orders by a Durham Superior Court judge that the reporter, J. Andrew Curliss, should testify and have the prosecutor read his notes.
"As a practical matter, there's not a legal avenue open now, " said Hugh Stevens, the newspaper's attorney. "It is rather puzzling that the court would take a case, take it on an expedited basis, put on an expedited hearing, wait 14 months and say we shouldn't have taken it at all."
A panel of three justices decides to hear an appeal on the basis of lawyers' petitions, said Christie Cameron, clerk to the Supreme Court. As it did in this case, the court may decide later it should not have heard the appeal.
The court heard arguments on the case last year.
Curliss interviewed Derrick Allen two days after his arrest in February 1998. At the time, Allen was charged with sexually assaulting a toddler. He later was charged with murdering the child. Curliss wrote a story that was published the next day.
Freda Black, an assistant district attorney in Durham, wanted to see the notes, but The N&O contended that they were privileged information and protected by the First Amendment. The newspaper offered to certify to prosecutors that the story was valid and that the paper had used all of the information from the interview that it thought it could. The offer was denied.
In March 1998, Superior Court Judge Orlando Hudson reviewed the notes in private and determined they should be turned over to the prosecutors because they could be useful in Allen's prosecution.
He immediately stayed that order, to allow the newspaper time to appeal.
Now, Black may ask Hudson to lift the stay and allow prosecutors to see the notes, which are under seal and in the court's possession. Black was not in her office Friday and could not be reached for comment.
Melanie Sill, The N&O's managing editor, said the court's move was disappointing.
"We wish that the court had recognized that a reporter's work should not become part of the police investigative process and that there should be very clear standards for demanding to see reporters' notes, " she said.
"We hope that the shield law sets out those standards and that this case remains an exception."
A law passed this year gives journalists partial immunity from having to testify or divulge information in legal proceedings. The law is not retroactive and will not apply to information gathered before Oct. 1. The law requires anyone subpoenaing a journalist to show that the journalist's testimony or information is relevant, cannot be obtained from alternative sources and is essential to a claim or a defense of the person on whose behalf the testimony is sought.
Stevens had hoped for a ruling to clarify the existing law. "It's just not clear where we stand for information that's sought in a state court proceeding" for information gathered through September, he said.
In another media decision issued Friday, the court upheld the contempt conviction of a television reporter who refused to testify in connection with a 1996 Cary murder case.
Sarah Owens, a reporter for WNCN-TV, was sentenced to two hours in jail in 1997 for refusing to testify about her report on the slaying of a Cary woman. Prosecutors wanted to establish that the lawyer whom reporters had interviewed about the case was acting as the attorney for the man they arrested.
The state Court of Appeals upheld the contempt order last year, and the Supreme Court upheld the appeals court ruling.
