Judge clears assistant Durham DA of intentionally keeping man in prison; calls for new DA’s office policy

A superior court judge has ruled that a Durham assistant district attorney and court clerk did make mistakes in a recent case, which led to the man serving unnecessary time in prison. But, Superior Court Judge Ronald Stephens found last week, no party in Durham’s court system or the N.C. Department of Correction purposefully delayed the man’s release, or acted intentionally or maliciously to keep him in prison. (Opinion, PDF)

The Indy first wrote about this case in June (“A prosecutorial mistake leaves a Durham man in prison,” June 23, 2010), when a lawyer for Durham man Irvin Broussard asked a judge to sanction the assistant district attorney in this case, Stormy Ellis, for failing to handle case matters in a timely fashion. Broussard spent 58 days in prison while waiting for Ellis to file paperwork in his case.

Broussard had pleaded guilty to two felonies—being a habitual felon and possessing a firearm, which is illegal as a felon—and was serving time in prison when in April, the N.C. Court of Appeals overturned his convictions. The court ruled that evidence used in his case should not have been allowed and ordered the case back to the Durham district attorney’s office, where Ellis was supposed to decide to re-try the case, or dismiss the charges.

Ellis had been notified that she was required to take action in the case, but didn’t file papers to dismiss the charges against Broussard until May 28, and Broussard was finally released on June 1, his birthday.

The attorney for Broussard, Durham lawyer Geeta Kapur, said in June she considered the delay a serious error and potential ethical issue that warranted punishment or even action by the N.C. State Bar Association.

In his written order, Stephens found that 58 days was not a reasonable time for Broussard to be held while Ellis resolved the case. He said Ellis had “a professional and ethical duty” to handle the case in a timely fashion. Stephens also blamed court clerks for failing to notify the district attorney’s office and other departments that Broussard’s case needed to be resolved, but said he found no evidence that anyone involved delayed Broussard’s release intentionally.

Stephens also said that there aren’t any local policies governing the specific actions a clerk or prosecutor must take to ensure that cases sent back from the N.C. Court of Appeals are handled in a timely fashion. He ordered District Attorney Tracey Cline and Clerk of Court Archie Smith to establish policies governing the process and what each person in the process is responsible for, and submit the policies to Durham’s Senior Resident Superior Court Judge, Orlando Hudson, for review.

It’s unclear how soon those policies might be crafted and implemented. Cline has not yet responded to a request for comment.

Kapur had requested that Ellis, who recently left the Durham district attorney’s office, be sanctioned, but Stephens dismissed that request. At the time of the Indy’s first story on Broussard, Ellis reported that she was leaving Durham in July to take a job with the N.C. Innocence Inquiry Commission.