I am a retired NC elected District Attorney. As such, I am irritated by the way Mr. Nifong has sullied ALL DA's reputations as well as his own. Thus, this email.The bar complaint may take months to resolve. It is the nature of those beasts. However, a removal petition (NCGS 7A-66) is pretty swift. Moreover, it is the nuclear weapon of administrative remedies. The standards are amorphous while the quantum of proof is only that the judge find the allegation(s) true. The DNA fiasco is probably enough (my view) to warrant a hearing. However, such matters as yesterdays contradictions between Nifong and the Sheriff's captain add some fuel to the fire.I do not write this lightly. NCGS 7A-66 is powerful. I remember we got a lecture regarding them at one of our conferences. Amazingly, many did not know the statute existed, yet afterward all recognized the consequences. Judges do not act on them cavalierly since no one wants to behead someone without due care. However, I do not think that removal forfeits a pension. Many think it does, but in NC the statute does not seem to call for that as far as I can tell. Thus, wives and kids continue to eat.The petition itself might even resolve the situation as Nifong may finally see the light and realize he is done (or his wife will.) Right now he seems to be getting no good advice as to anything. Nifong's own recent statements do not serve him at all. He is lashing out and baiting the press. Dumb.
The following are grounds for suspension of a district attorney or for his removal from office:
(1) Mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent;
(2) Willful misconduct in office;
(3) Willful and persistent failure to perform his duties;
(4) Habitual intemperance;
(5) Conviction of a crime involving moral turpitude;
(6) Conduct prejudicial to the administration of justice which brings the office into disrepute; or
(7) Knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal, as defined in subdivisions (1) through (6) hereof.
A proceeding to suspend or remove a district attorney is commenced by filing with the clerk of superior court of the county where the district attorney resides a sworn affidavit charging the district attorney with one or more grounds for removal. The clerk shall immediately bring the matter to the attention of the senior regular resident superior court judge for the district or set of districts as defined in G.S. 7A‑41.1(a) in which the county is located who shall within 30 days either review and act on the charges or refer them for review and action within 30 days to another superior court judge residing in or regularly holding the courts of that district or set of districts. If the superior court judge upon review finds that the charges if true constitute grounds for suspension, and finds probable cause for believing that the charges are true, he may enter an order suspending the district attorney from performing the duties of his office until a final determination of the charges on the merits. During the suspension the salary of the district attorney continues. If the superior court judge finds that the charges if true do not constitute grounds for suspension or finds that no probable cause exists for believing that the charges are true, he shall dismiss the proceeding.
If a hearing, with or without suspension, is ordered, the district attorney should receive immediate written notice of the proceedings and a true copy of the charges, and the matter shall be set for hearing not less than 10 days nor more than 30 days thereafter. The matter shall be set for hearing before the judge who originally examined the charges or before another regular superior court judge resident in or regularly holding the courts of that district or set of districts. The hearing shall be open to the public. All testimony shall be recorded. At the hearing the superior court judge shall hear evidence and make findings of fact and conclusions of law and if he finds that grounds for removal exist, he shall enter an order permanently removing the district attorney from office, and terminating his salary. If he finds that no grounds exist, he shall terminate the suspension, if any.
The district attorney may appeal from an order of removal to the Court of Appeals on the basis of error of law by the superior court judge. Pending decision of the case on appeal, the district attorney shall not perform any of the duties of his office. If, upon final determination, he is ordered reinstated either by the appellate division or by the superior court upon remand his salary shall be restored from the date of the original order of removal. (1967, c. 1049, s. 1; 1973, c. 47, s. 2; c. 148, s. 1; 1977, c. 21, ss. 1, 2; 1987 (Reg. Sess., 1988), c. 1037, s. 13.)
It would appear that the same arguments employed in the ethics charges to be heard before the State Bar Disciplinary Hearing Committee would also provide the grounds for the removal of the District Attorney. Certainly, when additional charges based on the defendants misrepresentations to the court and conspiracy to withhold exculpatory evidence are filed against Defendant Nifong, the arguments for "willful misconduct in office" and "conduct prejudicial to the administration of justice which brings the office into disrepute" will only be made stronger.
We have heard Governor Mike Easley and Attorney General Roy Cooper hide behind the claims that they were powerless to stop the rouge District Attorney. We have witnessed Congressman Walter Jones request intervention from the Department of Justice, a process that, if undertaken, is certain to require an excruciatingly long period of time. We have seen Defendant Nifong's recent defiance in the face of formal State Bar ethics charges, critical editorials from newspapers coast to coast including the Washington Post and LA Times, and a letter of condemnation from his peers in the North Carolina Conference of District Attorneys.
Defendant Nifong's defiant attitude, and pretension that he is not the problem while insisting that he intends to be part of the "healing," leaves no reason to believe that he will step down from office until he is forced to do so. It would be a measure of poetic justice on many levels if the process to end his reign as petty tyrant prosecutor were commenced by the courageous actions of one average citizen. Certainly, the filing of an affidavit charging Defendant Nifong with willful misconduct or conduct prejudicial to the administration of justice will not, in and of itself, remove Nifong from office. The matter would, however, ultimately be decided within the court system by, ironically, Judge Orlando Hudson who administered Nifong's Oath of Office on Tuesday. It would seem fair, however, if the matter of the People of Durham v. Defendant Nifong were ultimately decided in court. Afterall, Nifong and his dwindling number of apologists have told us often that anytime a victim can identify their assailant the matter should be taken to court.