By J. Andrew Curliss, staff writer
Suspended Durham District Attorney Tracey Cline says she wants to delay an inquiry set to begin on Monday that will determine whether she should be permanently removed from her elected office.
But she had not filed the necessary paperwork by the close of business Friday that would cause a judge to consider her request, according to the Durham County clerk's office.
Instead, Cline emailed a motion to Superior Court Judge Robert H. Hobgood, who is presiding over Monday's hearing. Judges typically act on motions that are filed with the clerk, not ones that are only sent to the judge by email.
Hobgood has declined requests through a courts administrator to discuss the removal inquiry or issues surrounding it.
Cline could still file her request for a delay on Monday, but it is not clear if the judge would consider it then.
In the emailed document, Cline cites as reasons to delay that she has a physical illness and was unable until recently to find an attorney to represent her. She wrote in documents that she is not prepared for the removal hearing.
Cline asked Hobgood, the senior judge for a four-county area northeast of Durham, to delay the matter for a maximum of 16 days.
In an email message on Thursday morning that was copied to courts officials, Cline first wrote that she needed more time.
"I need to move to continue the hearing from Monday because I do not have any attorney and I have been physically sick for over a week and presently I am not physically at my best," Cline wrote. "If necessary I can provide medical documentation."
But in the formal motion to continue, which Cline emailed to court officials at midday on Friday, she wrote that she had found one attorney "who could do the hearing but he will be out of town."
She said she had diligently tried to find an attorney before then "when physically able to do so" but that those she contacted were in conflicts and could not represent her due to the people involved.
Cline is asking Hobgood to set a new date for the hearing that is still within the 30-day timeframe allowed under state law for the removal effort to be heard. Monday is 14 days from when Cline was suspended by an order from Hobgood.
The removal effort was begun by Durham lawyer Kerry Sutton, who was involved in two cases in which Cline filed documents attacking Superior Court Judge Orlando Hudson, the senior judge in the county.
Sutton filed an affidavit under a rarely used state law that requires the removal of a DA for engaging in a range of actions, including "conduct prejudicial to the administration of justice" which brings the office into "disrepute."
Sutton cited "venom" and "alacrity" in Cline's attacks on Hudson, including that Cline has alleged Hudson's rulings in cases have "raped" victims and that Hudson rules in Durham with the "reprobate mind of a monarch."
Cline has accused Hudson of "corruption" and other misconduct, and asserts that he has made decisions not based in facts or the law. Two judges have dismissed Cline's claims, citing insufficient proof. The judges have also pointed out that Cline's avenues for her claims are available through the appeals courts or with the state commission that oversees judges.
Cline claims Hudson began retaliating against her last year because she would not dismiss a murder case. Cline has alleged that Hudson then tossed out charges against a Durham man, Derrick Allen, without any basis in fact or the law.
But Hobgood, in ordering Cline suspended on Jan. 27, wrote that his review of the Allen case showed there was sufficient reason for Hudson's decision to dismiss it. That case is still being appealed by Cline in the state Court of Appeals.
Court clerks waited until 5 p.m. on Friday for Cline to file the motion for a continuance. They locked the doors and said it had not come in.
In the emailed version, Cline lists five reasons for why Hobgood found reasons to suspend and possibly remove her from office, but gets one of those wrong.
Cline asserts that Hobgood found grounds for removal because Cline had said "on the record that she was completely unprepared despite her having months of advance notice" to handle a post-conviction appeal in the case of accused murderer Michael Peterson.
Hobgood did not find that.
Sutton had alleged in her affidavit that it was a reason to remove Cline.
But Hobgood specifically did not cite that claim in his order outlining the reasons for Cline's suspension.
In all, Hobgood's order cited a dozen other issues as being the basis for Cline's suspension and possible removal. He did not adopt several others that Sutton alleged, including the Peterson case preparation issue.
Cline wrote that she will "defend each assertion made by (Sutton) by presenting evidence including but not limited to testimony, exhibits, court documents and court records."
Earlier this week, Cline had not given indications that she would not be prepared.
She issued a round of subpoenas to various people, requiring them to appear in court for the hearing on Monday. Among them are Hudson and his judicial assistant, and a reporter and two editors from The News & Observer. All have filed motions seeking to quash Cline's subpoenas.
Among the allegations from Cline is that she believes Hudson has sought to discredit her by manufacturing "media mayhem" in causing the N&O to publish a three-part series about Cline in September. Hudson and the N&O have disputed that.
She had also issued subpoenas seeking testimony on the issues surrounding Hudson in December and January, each time expressing a willingness to present her case. Judges did not grant her requests, saying her written proof was not sufficient or that she had not followed what the law requires.
The first indication that she needed time came in an email message on Thursday morning.
By that afternoon, Cline wrote to Sutton that she wanted a continuance on her removal, according to an email message provided to the N&O by the courts system. But she said she would be ready on Monday to have a hearing on whether she can access information, known as discovery.
"I do have some discovery issues I believe that we can hear on Monday," Cline wrote, "but I will not be ready for the hearing."
Cline had previously asked the judge, in an email message, for a hearing on discovery. He did not schedule one.
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