LieStoppers’ Endorsement of Lewis Cheek

The Labor Day holiday has now passed and election season is upon us. With that in mind, LieStoppers turns its attention to the Durham County election for district attorney. To anyone who has read our blog over the past five weeks, it will come as no surprise that LieStoppers is strongly encouraging voters to choose Lewis Cheek on election day. Although Mr. Cheek has announced his inability to serve as DA if elected, he has asked his supporters to vote for him on November 7. A win for Cheek will end the ethically challenged reign of interim-DA Nifong, and provide the opportunity for Gov. Easley to choose a worthier replacement. LieStoppers is extremely grateful that Lewis Cheek's name on the ballot offers Durham County voters a choice, and a chance for a far better district attorney to serve them.

It has been suggested by Chapel Hill’s Bob Ashley, extremist Victoria Peterson, and others that Gov. Mike Easley might re-appoint Mr. Nifong as DA, against the expressed wishes of Durham County voters. We believe this incredible idea was publicly offered in order to dissuade Lewis Cheek supporters from voting, and to dishearten those with the courage to stand up and promote Nifong's removal from office. By saying that a successful effort to dethrone Mr. Nifong would be rewarded by the equivalent of a gubernatorial slap in Durham County's face, campaign advocate Peterson and Nifong apologist numero uno Ashley foolishly suggest that the brave stance taken by civic minded Durham residents, such as Beth Brewer and others who have organized the Committee to Recall Nifong-Vote Cheek, as well as the Students for an Ethical Durham, might be an effort in futility. We disagree.In an effort to put to rest this nonsensical suggestion, we offer the following observations and expectations regarding the selection of the district attorney to serve in place of Lewis Cheek:

1. Mike Nifong, who has been labeled by some as “America’s Worst District Attorney," has proven himself to be a professional and personal embarrassment to Governor Easley.
2. It defies logic to pretend that Governor Easley would choose to prolong or magnify that embarrassment by reappointing America’s Worst.
3. It is difficult to imagine that the Governor would choose to sabotage his political legacy by deliberately ignoring election results showing the citizens' clear mandate for change.
4. We expect that prior to appointing a district attorney to serve in Mr. Cheek’s stead, Governor Easley will personally evaluate and interview a short list of qualified and willing candidates who have been selected based on merit, experience, prosecutorial philosophy, willingness to serve Durham, unquestionable stature, and uncompromising ethics.
5. The Governor’s interim appointment to fill Mr. Cheek’s position in the office of District Attorney will be for a term of two years, until January 1, 2009, allowing the voters the chance to vote again for their District Attorney in 2008. (§ 163‑10. Filling vacancy in office of district attorney. ...An appointee shall hold his place until the next election for members of the General Assembly...)

To define clearly the reasoning behind our endorsement of removing Mr. Nifong from the office of District Attorney by electing Lewis Cheek, we offer the following outline:

Prosecutorial Discretion vs. Election Discretion

Mr. Nifong’s decision to hijack the Duke Hoax appears to have been motivated by a bitter desire to defeat his political rival Freda Black in the primary election. In consideration of the fact that one of Mr. Nifong’s first acts upon appointment as interim-district attorney was to terminate the employment of Ms. Black, and in consideration of Mr. Nifong’s poor polling prior to his personal assumption of the prosecutorial responsibilities of the Duke Hoax, the hijacking can very reasonably be construed as campaign-driven.

When consideration of the nature of the only two other cases Nifong personally took on, and the timing of the three pronouncements to that effect is added to the equation, the conclusion of electioneering by prosecuting becomes clearer. In addition to the Duke Hoax, Nifong’s primary election campaign also featured his promise to personally handle the news-making quadruple homicide and the equally visible multiple cross burning case. All three cases featured political and social hot spot issues, but none quite so clearly as the Duke Hoax. Is it any wonder that when the golden political opportunity of the Duke Hoax presented itself, the quadruple homicide was put on the back burner? While the mass DNA testing of the lacrosse team was expedited at significant civic expense, the DNA evidence in the quadruple murder sat untested and ignored for months.

In evaluating Mr. Nifong’s political motives for assigning himself to these three cases, it must be noted that he is many years removed from his most recent felony trial experience. His most recent courtroom experience was likely in Traffic Court. It must also be noted that there were multiple other prosecutors in his own office who would have been, at the very least, able and willing to distinguish the one non-crime from the two very real crimes.

The Special Responsibilities of a Prosecutor Are Not Optional

The Special Responsibilities of a Prosecutor have been well defined by the Constitution, case law, the Supreme Court, and the State Bar. These Special Responsibilities are neither optional, nor discretionary, yet Mr. Nifong has demonstrated his willingness to compromise or ignore his role as a minister of justice on multiple occasions in his brief term as interim-district attorney. When the district attorney himself refuses to uphold, or places himself above, what might be expected from even the greenest prosecutor, he must not be allowed to continue to hold that office.

A district attorney unwilling to view, let alone consider, evidence that does not support his case is a danger to the justice system as a whole. Equally dangerous is a district attorney who is willing to disguise, delay, or withhold discovery from defendants. It must also be deemed unacceptable for a district attorney to bring charges, not on evidence in hand, but on evidence hoped for. Further, a district attorney must be expected to observe a defendant’s right to due process, as well as all other civil rights. Failure to do so exposes the community he serves collectively to civil liabilities and individually to maliciously false prosecution.

Mr. Nifong has proven himself capable of each of these transgressions and more. Perhaps the greatest damage he has done to the county he is sworn to serve, and to the defendants who have been victimized by his hijacking of the Duke Hoax, has come from his disregard for the prohibition of extra-judicial statements. By publicly pronouncing guilt without allowing completion of an investigation, by repeatedly issuing inflammatory statements, by misrepresenting the quantity and quality of evidence to support his public claims, by offering theories of the case based on nothing more than supposition and wishful thinking, and by making statements that are later contradicted by evidence he had or should have had, Mr. Nifong has irreparably harmed innocent young men, his own community at large, and the public's trust in prosecutors everywhere.

Additionally, a district attorney who is allowed to insert himself directly into a police investigation in such a way that he is able to direct procedures contrary to the police department’s own policies, and contrary to the directives of the State Supreme Court, must be removed from office. Despite Mr. Nifong's promise on the day he took office to "do it right," it appears that he has done very little correctly. If the man holding the top job in the office cannot "do it right," what is to be expected from those he leads?

Distractions and Temper Tantrums

Mr. Nifong has also clearly demonstrated that he lacks the temperament, composure, professionalism, management skills, and focus to continue in his role as district attorney. As indications of this we point to his verbally abusive, profanity laced public tirade against Kerry Sutton, and his petty threat to quit the Animal Control board in response to learning that other members of the board were among the 10,000 plus Durham County voters who signed Lewis Cheek’s ballot petition. Further evidence can be found in his inordinate attention to the “case” against cabbie Elmostafa, and the outrageously high attrition rate among attorneys and staffers in the district attorney’s office since his appointment to the top spot. A district attorney’s office with a turnover rate resembling that of the local McDonald’s is hardly a well-run operation. Finally, a district attorney should be unencumbered by the distraction of defending himself from multiple State Bar complaints.

The importance of this election

While we understand that this election is critically important to the people of Durham County, we make our endorsement not only in the interests of Durham, but also in the interest of justice throughout the country. The precedent to be set by the removal of a rogue district attorney, who has clearly disregarded his responsibilities as a prosecutor, will serve as a reminder that great power and responsibilities entrusted to district attorneys can also be taken away by the people they are sworn to serve. Failure to remove Mr. Nifong from office will send an equally clear message that actions such as Mr. Nifong’s over the past several months are acceptable.

In conclusion, we affirm our support of the courageous members of the Committee to Recall Nifong-Vote Cheek in their efforts to remove Mr. Nifong from office. The removal of Mr. Nifong from office is not only a cause to be supported by those within Durham County, but also a movement that stands to benefit the entire nation. As such, it deserves support, not only from those whose votes will make a difference in this referendum, but also from those beyond, whose voices and actions might help to stop this menace to justice everywhere.