Report on hidden evidence stands despite objection

Tracey Cline
March 11, 2011 9:00:00 PM PST
A Durham man convicted of raping and killing a toddler may be a free man, but the controversy surrounding Derrick Allen's case is far from over.A North Carolina judge said Friday he won't change the wording of his report finding that a prosecutor intentionally hid evidence in a child murder case, even though he acknowledges she was not actively involved in the deception.

Durham County District Attorney Tracey Cline called reporters Friday to say that Superior Court Judge Orlando Hudson "indicated to me that that's not what he intended to say" when he wrote that Cline, then an assistant DA, and another ADA "intentionally failed to disclose" information that might have helped defendant Derrick Allen, who was charged with the murder and sexual assault of a young girl.

Cline said Hudson told her that wasn't how the order, made public Thursday, should have been worded.

"I'm upset by it," she said. "I'm shocked that it was in the written order that way. I was alarmed when I read that."

Hudson's report is much more critical of the other ADA, Freda Black, and an agent with the State Bureau of Investigation who conducted blood tests in the case. He said Friday that he names Cline because the case continued through the courts while she was the top prosecutor and she had a duty to know about and report the mistakes of others.

"I don't find that Ms. Cline was actively involved in knowingly being deceptive," Hudson said in a phone interview Friday. "She takes responsibility because her agents handled the case."

He said he wouldn't change the report because he thinks it's clear that Black and Jennifer Elwell of the SBI bear the most responsibility for mishandling the case. "I won't be amending it because I think anybody who looks at the facts as found in this order will see that those are the people who have the biggest responsibility," Hudson said.

In December, Hudson dismissed murder and assault charges against Allen, who was serving a prison sentence for the 1998 death of his then-girlfriend's 2-year-old daughter. Prosecutors have filed notice of appeal, but Hudson said Thursday that it's no longer possible for Allen to get a fair trial.

Hudson's order Thursday also said that prosecutors hid evidence and the SBI intentionally omitted evidence about blood tests in Allen's case, an issue that became public more than a year ago and resulted in man being declared innocent of murder after he served almost 17 years in prison.

That case, involving the release of Greg Taylor, resulted in a review of the SBI crime lab that flagged Allen's case as one of about 200 that the lab handled improperly.

Allen has maintained his innocence, but he entered an Alford plea in 1999 that allowed him to avoid the death penalty and left him facing a sentence of about 50 years in prison. Under an Alford plea, a defendant doesn't admit guilt but acknowledges that prosecutors have enough evidence to convict.

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