Thursday, January 04, 2007

Our Collective Voice - Note from a Retired DA

Recently, we received the following email from a retired elected North Carolina District Attorney.
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.

LS Comments:

§ 7A‑66. Removal of district attorneys.

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.


Anonymous said...

I love this. I had thought the citizens of Durham should take steps to initiate impeachment proceedings, as, I believe, is provided for in the NC Constitution for elected public officials who abuse the public trust. But this procedure seems much easier. Perhaps someone from Duke would be willing to file the affidavit. If not, I believe a number of Durham residents would be game.


Anonymous said...

Who can file such an affidavit? Is the affiant required to be a NC citizen, a resident of the DA's district? Must the affiant have personal knowledge of the DA's conduct set forth in the affidavit? Can we recruit some qualified person in NC to file one of these affidavits ASAP???

Anonymous said...

Somebody should e-mail a copy of the statute to the defense attorneys. Maybe Wade Smith or Joe Cheshire would be willing to file the petition. Nifong needs to be removed from office, and it needs to happen sooner rather than later. Surely somebody in Durham cares about justice.

Anonymous said...

the defense attorneys should NOT be the ones to file this. it should be average citizens of Durham.

Anonymous said...


This is absurd. Let the defense lawyers handle this matter. If they ever conclude removal is best for their clients, they can find someone to file the affidavit. The defense lawyers might not want the delay this kind of procedure could cause. Have the defense lawyers even asked the Judge to remove Nifong from the case?

The experts seem to be doing their jobs rather well. No one should try to do those jobs for them.

Anonymous said...

The judges at any level in NC seem to be as gutless as the NC AG and I don't see them doing anything with this.

On the other hand if citizens from Durham are outraged over their DA's behavior then they should have the right to file a complaint, regardless of the defense attorneys' fine work. After this is over, the people of Durham will have to live with this DA for nearly 4 years.

Anonymous said...

I agree 100%. I'm sure the defense is well aware of NCGS 7A-66 and has researched every possible way to remove Nifong. When the time is right, they can certainly find a durham citizen to file if they feel it is in their clients best interest. Making suggestions, writing letters, blogging, etc. is great but leave the "lawyering" to the lawyers.

Anonymous said...

And how do you live for 4 more years with a DA who has lost his credibility, who has been shown to subvert the rules and has appeared to indict three innocent young men as a campaign ploy?

How do you continue to allow a man like this to have the power of his office?

Everything this man has done in the past..every case...needs to be looked at! But going forward, what jury can have confidence in his integrity, his judgment, his methods? Nifong will carry the stench of this Hoax into the courtroom with him every time!

Anonymous said...

To 8:57,
I believe the common understanding is that at least one motion from a defense attorney for the removal of Mr. Nifong from this case has been pending for some time--months, in fact.
The defense strategy is not likely to be in conflict with the just actions of Durham citizens to remove Mr. Nifong from the office to which they elected him and which he has publicly abused. And, as the previous comments point out, Durham has more at stake here than just this case. It would do something to rectify Durham's reputation were its citizens actively to seek Mr. Nifong's removal.


kbp said...

Somebody file it now.

I'll be a witness, it's him without the mustache!

Seriously, I can't imagine why the defense would be upset if someone filed the complaint.

While what the defendants have faced is terrible, Nifong is a problem to others also. The process would not start before Smith has to address dumping Mikey, and when he does, that will not do any more than take him off this case.

Anonymous said...

This is quite a civics lession. Unless someone can field a $1 million dollar defense team the likelihood of exposing misdeeds at the level of DA Liefong's is rather remote. In order for the rest of us humble citizenry to have a restored sense of fairness in the justice system an example must be established with this case. If for no other reason but that to this day Liefong has never met with the falsely accused's attorneys to hear their exculpatory evidence I advocate the nuclear option be deployed. Since Liefong will be fighting for his professional life in the NCGS 7A-66 hearing, he may very well implicate the other miscreants in the DA's office and the DPD that are worthy of a rebuke.

Anonymous said...

NCGS 7A-66 hearing is a powerful and serious tool. I am not sure a Defense attorney in an active case would want to file one. It belongs outside of their actions.

Attorneys of Durhams, time for some of you to show some balls! You lived in this ridiculous Case Management System for too long and have become too jaded to see how much stink surrounds the practice of law in Durham.

Do the right thing!

Anonymous said...

I believe this is called the Nuclear option!!

My son is a registered voter in Durham and would be glad to file such a complaint, BUT I agree, the defense attorneys are the quarterbacks in this game, let them decide what to do.

There is plenty of time to have Nifungu fitted for his prison outfit and meet his husband at Butner. Chill, it's Mikey who is not sleeping at night, not the boys.

Anonymous said...

9:47 makes a good point: If the good people of Durham fear that they can't get fair legal treatment unless they can come up with a load of cash, then they certainly should file the charges. As for the defense attorneys, I don't see this as interfering with their work...

This is a right given to the citizens of Durham. Just like voting, if you don't exercise your right, you can't complain about the outcome.

Perhaps a citizen of Durham can do what the Governor, NC AG, and the feds can't seem to do--bring fair justice to the state of NC!!!

This action was recommended by a former DA who is disgusted with Nifong...I can't imagine him recommending something that would hamper the defense attorneys' case.

J.B. said...

This isn't about good lawyering or anything other than addressing the situation at hand.

For all those people who have consistently insisted that the Governor or Attorney General of North Carolina *COULD NOT ACT* on this outrage, this is conclusive proof otherwise, or so it seems to me.

All that was and is required is the political courage to do so. An attempt by the chief executive of the state to have this man removed, or by the chief legal officer of the state, would be powerfully persuasive.

Anonymous said...


Using 'political courage' in the same paragraph with the Gov and AG is a paradox!

Anonymous said...

Would that be an oxymoron or just two morons?

Anonymous said...

After reviewing the procedure for removing Nifong from office I note that a hearing could be held and an appeal taken from an adverse decision against Nifong. What happens to the case against the 3 defendants in the meantime? I would think that a motion to remove Nifong from the case would be a better step. In any event, the impressive and knowledgeable NC lawyers for the defendants certainly know the approp, action to take at this time on that issue.

Anonymous said...

The defense attorney's don't want to file this complaint. They just want Nifong removed from the case or the charges dismissed or dropped. Once that happens, the redident of Durham, NC will have to withstand the wrath of Nifong for 4 more years. Maybe when he starts setting up the residents of Durham, NC that are indicted, by this rogue, they will finally speak up. Nifong has the full support of the AA community, but will that support continue, when he starts indicting them.

Anonymous said...

Kirk Osborn (Reade Seligmann's atty)filed a MOTION FOR RECUSAL OF DISTRICT ATTORNEY on May 1, 2006. If the defense lawyers wanted Nifong off of this case at this time, they would ask for a hearing on that motion.

Nifong is hanging himself and this case, for heaven's sake. Keep giving him rope.

Victim in Massachusetts said...

Crystal gave birth yesterday by C section. here is the link

The baby was not due until next month, so something must have been wrong with the baby.

Anonymous said...

"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"

Great line !! -- That says it all

Anonymous said...

Maybe the baby will file kidnapping know, Crystal tried to hold the baby against its will for an extra month...the DA can get a two for one deal on mommy and economic.

Gag, she probably had to have a C-section because of the shloo of STDs she vile.

Welp, another out of wedlock living on wellfare child in the Mangum household. She better get to doing multiple dance shifts or she just won't have the money to entertain the Black Panthers or Jesse Jackson at her Black History Month party next month.

GPrestonian said...

11:10am Anon:

If the defense lawyers wanted Nifong off of this case at this time, they would ask for a hearing on that motion.

Was it Judge Smith who made the comments to the effect that he has motions that have not been asked to be heard, as well as motions that he said the defense had specifically asked NOT to be heard at this time (~12/15, iirc)?

Whoever it was didn't deliniate which motions, however.

Anonymous said...

Based on the alcohol and illicit drugs the AV has ingested, my guess is the baby is a real mess.

GPrestonian said...

Per Liestoppers:

"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."

Irony, indeed!

Is this true? That Hudson is the only Superior Court Judge in Durham / JD 14?

LieStoppers said...

GP: Hudson is the senior regular resident superior judge for the district. It appears that he gets the first look but does have the option of handing it off to another judge. As such my conclusion is not entirely accurate. Thanks for pointing it out and apologies for any confusion this may have created.

"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."

Anonymous said...

ooh somebody should do this/that. you're nothing short of whinning bitches that has turned red face cuz you can't have your way. quess what? no one is listening! you are not running matters in durham, so get a life and move on.

Anonymous said...

WRAL reporting the accuser gave birth yeserday.

Anonymous said...

Neither are you 12:27.

Anonymous said...

12:27 appears to be one of the few remaining Nifong-supporters...who obviously has not kept up with the news since sometime around mid-April.

GPrestonian said...

12:23pm Liestoppers:

Thanks, LS. Well, given the procedures you (re)posted, the irony remains - Hudson will have to touch it in one way or another!

Interesting situation - there's discussion here & elsewhere as to whether or not the defence wants such a procedure started, but any resident(??) of the JD can file the petition. Guess it's a win-win for the defence, but I'm sure they don't like not having control over the timing.

Thanks again!

gs said...

The judge in the case will recuse Nifong. A motion has been filed, and not yet ruled on by the judge. I wish I could say that judges are not political, but most are to some degree.

This judge on Feb 5 will have the political safety net of:

1 -Bar ethics charges against Nifong.
2 -The DNA/Meehan issue.
3 -The open letter from NC DAs.

Not much risk in removing Nifong.

gs said...

Whether Nifong is removed from office or recuse from the case, the result for the 3 dukies are the same. A new DA is assigned to the case. At that point it is reviewed by someone with ethics.

Anonymous said...

Do you think that the new assigned DA might actually interview the accuser???

Anonymous said...
So the baby is born 10 months later.
Since they found 5 different DNA samples on/in her, they may have to get DNA samples from the whole county to find the father.

Anonymous said...

Greta 5:15 pm on fox.

Nifong should resign

Anonymous said...

Being removed from this case is NOT the same as being removed from office. Ultimately Nifong needs to be removed from office and sent directly 2 jail.

Anonymous said...

Nifong is a domestic terrorist!

Anonymous said...

I am with those who say let the defense counsel run the show. If they want Nifong removed by this procedure they can arrange for someone to file.
In my view, the hammer in this case will fall on February 5 when the motion to suppress is granted and Difong no longer has any evidence. To attack Nifong at this point will delay the February 5 hearing to the detriment of the defendants. The motion can be filed after 2-5, if for some reasons the judge makes an unfavorable ruling.

Guy Fox said...

I also agree with the stance that the defense should be the ones running the show. They've shown that they clearly know what they're doing. We have no idea of the internal workings or strategy of the case, and timing is everything for both the good and the bad. However, if I were an attorney, I might be inclined to have the motion filed after February 5 regardless. If there were ever a case for the "nuclear option" to be used, this is it.

Anonymous said...

Golly, for those of you saying the defense attorneys should run the show, I don't recall seeing this statute limited to defense attorneys. It will be a sad day in America (worse than the day this frame was conceived), when the protections afforded to any common citizen who wishes to stand against tyranny and injustice are limited to LAWYERS!

I wonder, has anyone checked to see if this statute is already in play? Wouldn't it be interesting to learn that it has and that maybe the NC Bar complaint is connected to a certain petition?

gs said...
"This judge on Feb 5 will have the political safety net of:

1 -Bar ethics charges against Nifong.
2 -The DNA/Meehan issue.
3 -The open letter from NC DAs.

Not much risk in removing Nifong."

Especially when his own constituency is removed from Durham and they are likely to vote him OUT of office if he does NOT recuse and publickly cite Nifong.


Guy Fox said...

I say that this option should be filed as close to February 5 as possible. While I know exactly how puerile this will sound, I echo Wesley (The Dread Pirate Roberts) in "The Princess Bride" when I say that this legal battle should be fought to the pain. Nifong must go.

Anonymous said...

No one has been able to get these judges to rule on the motions ( except they could not have a speedy trial)- including request to remove Nifong.