Sunday, April 27, 2008

DA candidate Cline's Duke lacrosse "explanations" (Post 1)

Readers Note: In the post below I refer to ADA Cline as the current "front-runner" in the DA race. A reader questioned that designation which I then clarified in this post.


(This is the first of a series of posts reporting and commenting on the many "explanations" Durham's current chief assistant district attorney Tracey Cline has given concerning her involvement in the attempted frame-up of three innocent Duke students and the ongoing cover-up of that attempt.

Much that Cline has said about her involvement is contradicted by other evidence. And Cline's own explanations of what she did and didn't do are in some instances self-contradicting.

Cline is currently the front-runner in a four-way race for the Democratic Party's Durham DA nomination. The primary election will be held Tuesday, May 6.


Yesterday I posted Durham DA Indy Endorsement: be wary. The Independent (Indy)is a free print publication which describes itself as "a progressive weekly." In 2006 it enthusiastically supported the now disbarred Mike Nifong in his DA primary and general election races.

The Indy has just endorsed ADA Tracey Cline. Here's part of what the Indy told its readers:

She is putting to rest questions that she was involved in Nifong's lacrosse prosecution, a concern among some critics. She told the Independent that police officers came to her asking advice about what paperwork to complete, a search warrant or a non-testimonial order, and when they had completed the paperwork, filed it with then Assistant District Attorney David Saacks, who signed it.

"I didn't sign anything," Cline said. "All I did was advise them, which I should do on every single case. Under the same situation, any district attorney would do the same thing. The statute requires you to do that."

Saacks corroborated Cline's account under oath during Nifong's criminal contempt hearing.
Readers here and Durham voters need to be very wary of what Cline and the Indy are saying. I included in my post comments by Indy readers made on the endorsement's thread. Those comments, the first three on the thread, provide documentation and commentary refuting significant portions of the Indy's endorsement statement. I encourage all of you to take a look at the thread here. I'll also link to it again at the end of this post.

Some of what follows is drawn from a Jan. 13, 2008 post: Who Own's That "Toxic" NTO?

For almost two years the public had the impression securing a nontestimonial order (NTO) in March 2006 directing all 46 white Duke lacrosse team members to provide DNA samples and submit to police face and torso photographing was something the DA’s office and DPD agreed on and secured through their collaborative efforts.

But reporter Ray Gronberg’s Jan. 9 Durham Herald Sun story, disclosed disputes between the DA’s office and DPD and within the DA’s office as to who did what to secure it.

Here are the relevant portions of Gronberg’s story, followed by my comments:

From the Jan. 9 Durham H-S - - -

[…] At the heart of the matter is material taken from the notes of lacrosse case lead detective Ben Himan, and notes and a deposition from Durham police Sgt. Mark Gottlieb.

They referred to Cline's role in the creation of a non-testimonial order, or NTO, that allowed police to take photographs of and collect DNA evidence from 46 of the 47members of the Duke lacrosse team.

Cline denied that she had any role in writing the order.

"The record will indicate that David Saacks did it," she said. Saacks is the interim district attorney but was [the chief] assistant DA at that time. "I didn't prepare any paperwork on that case. Nothing at all. I've never even seen or laid hands on a non-testimonial order."

She said, "I remember Gottlieb asked me about a non-testimonial order, and I told him I was not available."

But when asked by The Herald-Sun whether she'd asked police to draft the non-testimonial order, Cline responded, "I don't recall." ( emphasis added)

Himan's notes and Gottlieb's deposition indicate that police consulted Cline on March 22, 2006, after they learned players, on the advice of attorneys, wouldn't show up that day for a scheduled meeting with investigators.

As soon as that was clear, Himan contacted Cline, who handled most sexual-assault cases for the district attorney's office.

Himan -- who turned over his notes to defense lawyers in May of 2006 -- reported that the conversation took place at about 4:15 p.m. He said Cline urged police to secure the order.

"I went to Assistant District Attorney Tracey Cline and spoke to her about our case," Himan said, summarizing what happened. "She stated that we should do the non-testimonial on the players including upper-torso pictures, current mug shots and cheek swabbings."

Gottlieb's notes -- turned over to the defense in July of 2006 -- backed Himan's account.

"I spoke to [Police Attorney] Toni Smith and notified her that Investigator Himan spoke with ADA Tracey Cline. Ms. Cline asked them to draw up the NTO so the DA's office could present it to a judge in the morning. [Smith] stated follow the directions of the DA's office since they are the ones conducting the possible future prosecution."

The sergeant's deposition -- given to N.C. State Bar investigators as they assembled evidence for then-District Attorney Mike Nifong's eventual disbarment -- echoed his notes.

"I had actually spoke with Ms. Smith and Investigator Himan spoke with the District Attorney's office, Ms. Cline, and they decided to -- the district attorney's office thought it was a good idea [--] to go ahead and do a non-testimonial, and I assisted Investigator Himan in preparing it," Gottlieb told bar investigators.

Himan and Gottlieb worked on the order overnight and had it ready for a judge's signature the morning of March 23, 2006. Cline, however, wasn't available to help the detectives get it signed. Himan said he turned to Saacks, who presented the draft order to Superior Court Judge Ronald Stephens.

Asked for comment, Saacks backed up the accounts offered by Himan and Gottlieb, and at least part of Cline's. He said the detectives first went to Cline.

"They just called her and asked her what they should do," Saacks said. "When they came to me, they said they had already talked to Tracey about it. But she wasn't available that morning, so I took it through court."

He said police -- and not anyone in the DA's office -- drafted the order. The only change made to the draft, once it was presented to Saacks, was one that helped authorities bypass a rule that normally gives targets of an NTO three days to challenge it in court.

Saacks said he didn't know whether police suggested the order or whether Cline "brought it up" when she talked to them.

The detectives' use of the order was controversial from the outset because lawyers questioned whether authorities had probable cause to demand DNA samples from 46 players.

One Durham lawyer, Tom Loflin, told The Herald-Sun in March 2006 that the order was "mammothly unconstitutional" and a "dragnet fishing expedition."

In one of two civil-rights lawsuits pending against the city, Durham lawyer Bob Ekstrand alleged that police lied in the affidavit supporting the order because they knew they couldn't establish that all 46 of the players had attended the team party that touched off the case.

The suit also contended that Himan and Gottlieb requested the NTO to retaliate against the players for refusing to show up at the planning meeting to answer questions.

Cline is widely expected to run for district attorney this spring.


Some comments:

Everyone following this case knows that if discovery proceeds in the civil suits, at some point the DA’s office and DPD will clash and offer different versions of key events, big-time denials and relentless blame-shifting.

But it was expected that would involve disputes between what Himan and Gottlieb have said versus what Nifong's said.

In Gronberg's story we have something different: DPD (Himan and Gottlieb directly and attorney Toni Smith indirectly by virtue of Gottlieb’s assertions) contradict what Cline is quoted as saying and is telling voters now. In Himan and Gottlieb's cases their statements were made in testimony under oath and their notes were provided to the State Bar to, in part, support their testimony.

Somebody’s got to be very wrong in what she/he/they is/are saying about these extraordinarily important matters.

The dispute Gronberg describes is basically about NTO “ownership.”

Cline doesn't want to be connected to what she knows is a “toxic” NTO that was supported with fraudulent claims and was, leaving aside the fraudulent aspect, unconstitutional on its face.

Tomorrow I'll post concerning her denials of involvement in the Duke lacrosse case and what we know that contradict her denials.

The Indy comment thread is here. (Scroll down)


kbp said...

Thanks John

We can expect her to ease in to admitting her involvement just a little bit at a time, like it's no big deal.

Something like; "Yes, we talked about how to do this or that, standard questions I get often from investigating officers..."

She'll try to explain away her statements, like claiming "...I told [Gottlieb] I was not available" was about the next day when Saaks filed it, she misunderstood the question, blah, blah....

Anonymous said...

Do you say Cline is the "front runner" because Mayor Bell and a few entrenched PACs have endorsed her? Or is because there is a voter poll somewhere? I haven't seen any polls.