Friday, February 09, 2007

§7A-66 Affidavit Filed

Durham resident, Beth Brewer, has filed a civil affidavit with Archie Smith, Clerk of Superior Court in Durham County, charging Durham County District Attorney, Mike Nifong, with willful misconduct and conduct prejudicial to the administration of justice that brings the office into disrepute. Mrs. Brewer’s affidavit, filed in accordance with the provisions set forth in NC General Statute §7A-66, requests that the Court remove Mr. Nifong from office.
The following press release announced Mrs. Brewer's action:
Durham resident files affidavit asking the Court to remove District Attorney Mike Nifong from office
Contact: Beth Brewer -
Durham, NC (February 9, 2007) — On Friday*, Durham County NC resident, Elizabeth Brewer, filed a sworn affidavit with the Clerk of Superior Court in Durham County requesting the Court remove District Attorney Mike Nifong from office.
Under the provisions set forth in NC General Statute §7A-66, Removal of district attorneys, Ms. Brewer’s affidavit charges Mr. Nifong with §7A-66(2) Willful misconduct in office and §7A-66(6) Conduct prejudicial to the administration of justice which brings the office into disrepute. Either of the charges, if found to be true, are grounds for removal under the statute. In her affidavit Ms. Brewer cites many of the same charges recently brought against Mr. Nifong by the NC State Bar.
Ms. Brewer has been a resident of Durham County for 23 years and has no connection to Duke University or the defendants in the Duke lacrosse case. She was the Chair of the political action committee Recall Nifong – Vote Cheek, a group that sought to defeat Mr. Nifong in last November’s election because she realized Durham could not move forward with Mr. Nifong as District Attorney. Ms. Brewer believes, “Recent revelations show further, much more serious misconduct including statements made by Mr. Nifong in Court in knowing contradiction of the truth. There can be no faith in our justice system with a district attorney who, in a very public case, conspires to withhold exculpatory evidence from the defense and repeatedly makes misrepresentations and false statements to the Court and opposing counsel about the matter.”
According NCGS §7A-66, once an affidavit is filed, the clerk of superior court will immediately bring the matter to the attention of the senior resident superior court judge for Durham County, Orlando Hudson. Within 30 days, Judge Hudson should either take action on the charges or refer them for review and action to another Durham County superior court judge.
If the Court finds probable cause, believing the charges are true, Mr. Nifong could be suspended, with pay, pending a final decision in the case. If the Court finds that the charges do not constitute grounds for suspension or finds that no probable cause exists the charges could be dismissed. If the Court finds that grounds for removal exist, the Court would issue an order permanently removing Mr. Nifong from office and terminating his salary.
“My overriding concern is that Durham County have a new district attorney as soon as possible and, not to add to the burdens of Mr. Nifong,” said Brewer.
The Affidavit



Now comes the undersigned, ELIZABETH M. BREWER, being first duly sworn, and deposes and says:

1. I am a resident of Durham County, North Carolina. I have no connection to Duke University or to the Defendants in the cases State v. Reade William Seligmann, 06 CR 4335-36, State v. Collin Finnerty, 06 CR 4332-33, and State v. Evans, 06 CR 5582-83 (hereinafter referred to as ‘the lacrosse case’ or ‘the/this case’). I allege the facts below, all public knowledge, on information and belief, except as to Paragraph 39, as to which I have personal knowledge.

2. Under the provisions set forth in N.C.G.S. § 7A-66, Removal of District Attorneys, I am requesting the removal of Michael B. Nifong from the office of Durham County District Attorney on the grounds stated and shown herein below.

3. District Attorney Nifong has committed willful misconduct in office, which is grounds for removal from office under N.C.G.S. § 7A-66(2).

4. District Attorney Nifong has engaged in conduct prejudicial to the administration of justice which brings the office into disrepute, which is grounds for removal from office under N.C.G.S. § 7A-66(6).

5. Specifically, DA Nifong has engaged in the following conduct, which clearly constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the office into disrepute.

DA Nifong conspired to withhold exculpatory evidence from the defense and repeatedly misrepresented and made false statements to the Court about the matter.

6. In an April 10, 2006 meeting, DA Nifong conspired with the Director of DNA Security, Inc., Dr. Brian Meehan, and Durham Police Officers, Mark Gottlieb and Benjamin Himan, to withhold exculpatory evidence from the defendants in the lacrosse case.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 33 - 41)

7. In the April 10, 2006 meeting, DA Nifong and the Durham Police Officers were informed that testing performed by Dr. Meehan’s laboratory revealed the presence of DNA from multiple male sources on the rectal swabs and panties from the rape kit; none of the referenced DNA matched any of the lacrosse players, including the defendants.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 33 - 41)

8. DA Nifong willfully determined in concert with Dr. Meehan that Dr. Meehan should produce a report that excluded the referenced exculpatory DNA evidence.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 62 - 71)

9. Knowing that the data contained exculpatory evidence, DA Nifong nevertheless argued in Court on September 22, 2006 to withhold the underlying DNA test data from the defendants -- data which subsequently led to the discovery of the referenced exculpatory evidence. The Court disagreed and ordered that the underlying DNA test data be produced by October 20, 2006.

(Attachment 5 – Motion to Compel Discovery: Expert D.N.A. Analysis, Page 65, Paragraph 45 and Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Paragraphs 245 – 251)

10. Over eighteen hundred pages of underlying DNA test data were provided to the defense at a court hearing on October 27, 2006. Defendants had to review these hundreds of pages of technical data to discover the exculpatory DNA evidence that had been intentionally withheld from DNA Security Inc.’s final (and only) report provided previously in discovery.

(Attachment 1 – December 15, 2006 Court transcript excerpt, Paragraphs 66 - 67)

11. The State’s evidence provided previously in discovery did not include notes or a report on this topic from either of the Durham Police officers who were present when DNA evidence was discussed at the April 10, 2006 meeting with DNA Security, Inc.

12. At a May 18, 2006 court hearing, in response to a question from Judge Stephens regarding his compliance with discovery, DA Nifong told the Court “I’ve turned over everything I have.” This statement was made by DA Nifong with the knowledge that exculpatory DNA evidence detected by DNA Security, Inc in early April, and reported to DA Nifong on April 10, 2006, was not included in discovery.

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Paragraphs 234 - 235)

13. Included in discovery materials turned over the defense on May 18, 2006, DA Nifong provided the following response, “The State is not aware of any additional material or information that may be exculpatory in nature with respect to the Defendant.” At the time he provided these responses, DA Nifong was aware of exculpatory DNA evidence that had not been provided to the defendants.

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Paragraphs 230 - 231)

14. DA Nifong told the Court on December 15, 2006, “The first I heard of this particular situation was when I was served with these reports – this motion on Wednesday of this week.” This statement, by Nifong, was made in response to a defense attorney’s summary of the Motion to Compel Discovery: Expert D.N.A. Analysis (DNA Motion) filed with the Court on Wednesday December 13, 2006.

(Attachment 1 – December 15, 2006 Court transcript excerpt – Paragraph 5)

15. The main focus of the DNA Motion was the content of a report turned over by the State in discovery. The report, produced by DNA Security, Inc., a private laboratory hired by the State, did not fully disclose the results of DNA testing performed by their laboratory. Specifically, the report did not disclose the presence of DNA from multiple males, found on and in the accuser, that definitively excluded each of the defendants and all other members of the Duke lacrosse team.

(Attachment 1 – December 15, 2006 Court transcript excerpt – Paragraph 5)

16. According to testimony of State’s witness, Dr. Brian Meehan, DA Nifong was made aware of this exculpatory DNA in a meeting on April 10, 2006. DA Nifong has, therefore, known “of this particular situation” since early April, 2006.

(Attachment 1 – December 15, 2006 Court transcript excerpt – Paragraphs 33 - 41)

DA Nifong instructed Durham Police investigators to conduct a photographic identification session that violated their own procedures as well as the recommendations of the North Carolina Actual Innocence Commission.

17. On March 31, 2006, DA Nifong, who had taken over the supervision of the investigation on March 24, 2006, met with Durham Police Officers and directed a new photographic identification procedure to be used in this case.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Page 71)

18. DA Nifong ordered this photo identification session despite the fact that the accuser had been unable to identify any of her alleged attackers in two previous photo identification sessions. The two prior photo arrays shown to the accuser included approximately 36 of the lacrosse team members, including two of the defendants.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Page 71)

19. The new procedure, specified by DA Nifong, not only violated the Defendants’ constitutional rights, but also violated General Order 4077 of the Durham Police Department concerning photographic identifications and was contrary to the recommendations made by the North Carolina Actual Innocence Commission. In the new procedure, DA Nifong directed that photographs of all white players who attended the March 13, 2006 party be shown. No other photographs were included despite the fact that investigators knew at least two of the people present at the party were not lacrosse players. No ‘filler’ photographs were included. Prior to showing the accuser the photographs, she was informed that she would only be shown photographs of people who attended the party.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Pages 71 - 72)

DA Nifong failed to pursue and secure exculpatory evidence.

20. On March 24, 2006, Durham Police investigators in the lacrosse case were instructed to report to DA Nifong placing DA Nifong in a position of authority over the investigation.

(Attachment 6 – December 14, 2006 Motion to Suppress Alleged “Identification” of the Defendants by the Accuser – Page 71)

21. In a motion filed April 28, 2006, attorneys for defendant Reade Seligmann requested, “all law enforcement officers, employees, agents, and attorneys involved in the investigation of the [case] to preserve and retain any and all …tape recordings. made during the investigation of this matter, which reflect or contain communications with or investigative reports of potential witnesses … regardless of whether or not those notes, tapes, or compilations have been incorporated into official recordings or memoranda …”

(Attachment 2 – April 28, 2006 Motion for Preservation of Notes and Tapes)

22. On May 18, 2006, DA Nifong did not object to the request and the Court ordered the preservation of the requested notes and tapes

(Reference - Joint Omnibus Motion to Compel Discovery filed August 31, 2006)

23. At a September 22, 2006 hearing DA Nifong informed the Court that tapes containing the Durham Police Department radio transmissions from the evening of the alleged attack had been destroyed. DA Nifong told the Court that the destruction of this data was in compliance with Durham Police Department tape use policy that provides for non-evidentiary tapes to be destroyed after 60 days.

(Reference - Joint Omnibus Motion to Compel Discovery filed August 31, 2006)

24. DA Nifong, with leadership authority over the investigation, had a general duty to preserve and produce all evidence in this case, and had received the defendant’s specific request concerning these tapes on April 28, 2006 and the court order on May 18, 2006. Nonetheless he allowed the transmission evidence to be destroyed.

25. DA Nifong failed to interview, or have investigators interview, the accuser for over eight months to follow up on her own conflicting statements or multiple other conflicting witness’ statements.

(Attachment 7 – January 11, 2007 Supplement to Motion to Suppress the Alleged “Identification” - Page 74)

26. Discovery turned over by the State and defense evidence indicates significant contradictions to the accuser’s April 4, 2006 photo identification statements and April 6, 2006 written statement. The accuser was not re-interviewed by any investigator concerning these contradictions prior to indictments being sought in this case. In fact, the accuser was not re-interviewed by any investigator until December 21, 2006. Notably, the December 21, 2006 interview was the first conducted by anyone in DA Nifong’s office and the interview was conducted only after the exculpatory DNA evidence was discovered by the defense, as described above in paragraphs 6 – 13.

(Attachment 7 – January 11, 2007 Supplement to Motion to Suppress the Alleged “Identification” - Page 74)

27. DA Nifong refused to meet with defense attorneys to discuss exculpatory evidence in violation of the North Carolina State Bar Revised Rules of Professional Conduct.

(Rule 3.8 – Special Responsibilities of a Prosecutor, Comment [2])

28. Several instances of DA Nifong’s refusal to meet with defense attorneys:

"After Mr. Nifong made all his statements and we heard there were going to be indictments, we called over and tried to talk to him, and he refused to talk to us. He's refused to look at the exculpatory evidence, and when there is someone who will simply not act professionally and discuss things with you in a professional way, how else do you do things?’ Cheshire said.”

(Raleigh News and Observer - May 16, 2006)

“On April 13, Nifong met with three defense lawyers, Bill Thomas, Butch Williams and Wade Smith. According to Williams, when the lawyers got into exculpatory evidence, like the photos, Nifong essentially cut them off, saying that he knew much more about the case than they would ever know, and that he intended to indict two players.

On April 18, when the two players were arrested and charged with rape and kidnapping and more vaguely defined sexual offenses, Seligmann's lawyer, Kirk Osborn, went to Nifong's office to try to speak to him. ‘I thought, surely he'll talk to me,’ said Osborn, who has known Nifong for 25 years. But after Osborn had waited for 20 minutes, Nifong's assistant emerged with a message, according to Osborn: ‘Mr. Nifong says that he saw you on TV declaring your client totally innocent, so what is there to talk about?’ "

(Newsweek Magazine – May 1, 2006 issue)

DA Nifong’s conduct violated the North Carolina State Bar Revised Rules of Professional Conduct and has been generally unprofessional.

29. The North Carolina State Bar Grievance Committee found that “Nifong made extrajudicial statements he knew or reasonably should have known would be disseminated by means of public communication and would have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter in violation of Rule 3.6(a); made extrajudicial statements that had a substantial likelihood of heightening public condemnation of the accused in violation of Rule 3.8(f); and engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Revised Rules of Professional Conduct.”

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Page 39(a))

30. A few of DA Nifong’s extrajudicial statements to support the above paragraph include:

“I’m making a statement to the Durham community and, as a citizen of Durham, I am making a statement for the Durham community. This is not the kind of activity we condone, and it must be dealt with quickly and harshly.”

(NBC 17 News – March 27, 2006)

"This is not a case of people drinking and it getting out of hand from that. This is something much, much beyond that."

(NBC 17 News – March 28, 2006)

"The circumstances of the rape indicated a deep racial motivation for some of the things that were done," District Attorney Mike Nifong said. "It makes a crime that is by its nature one of the most offensive and invasive even more so."

(NBC 17 News – March 29, 2006)

“I am convinced there was a rape, yes, sir.”

(MSNBC – March 29, 2006)

“There’s no doubt a sexual assault took place.”

(CBS News – March 30, 2006)

“There was a feeling that Duke students' daddies could buy them expensive lawyers and that they knew the right people. It's discouraging when people feel that way, and we try not to make that the case.”

(USA Today – March 30, 2006)

“I would like to think that somebody [not involved in the attack] has the human decency to call up and say, “What am I doing covering up for a bunch of hooligans?”

(N&O – April 10, 2006)

"The reason that I took this case is because this case says something about Durham that I’m not going to let be said," said Nifong. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham."

(WRAL – April 13, 2006, quote from a forum the previous Wednesday)

31. The North Carolina State Bar Grievance Committee found that, “By making statements to representatives of the news media …Nifong engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of Rule 8.4(c) of the Revised Rules of Professional Conduct.”

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Page 40(b))

32. DA Nifong told media representatives (WRAL) on March 29, 2006, “My reading of the report of the emergency room nurse would indicate that some type of sexual assault did in fact take place."

33. The accuser “told the S.A.N.E nurse in training that she was not choked; that no condoms, fingers or foreign objects were used during the alleged sexual assault.”

(Attachment 4 – June 8, 2006 Amendment to Motion to Suppress Non-Testimonial Photographs/Affidavit of Counsel – Page 50 – 51 (2))

34. Subsequent to DA Nifong’s March 29, 2006 statement (referenced in paragraph 32), DA Nifong made the following statements to media representatives:

"I would not be surprised if condoms were used," Nifong said in an interview last month. "Probably an exotic dancer would not be your first choice for unprotected sex."

(Charlotte Observer – April 11, 2006)

“If a condom were used, then we might expect that there would not be any DNA evidence recovered from say a vaginal swab.”

(MSNBC – March 31, 2006)

35. Nifong’s ongoing media commentary on the case raised racial tensions in the community and heightened public condemnation of the accused. He further raised tensions by directing an appeal to the public for information already known and with his comments about evidence he knew did not exist. The North Carolina State Bar Grievance Committee sums up this pattern of misconduct as “constitut[ing] a systematic abuse of prosecutorial discretion in the underlying criminal cases, Nifong engaged in conduct prejudicial to the administration of justice . . .”

(Attachment 3 – January 24, 2007 Amended North Carolina State Bar Complaint – Page 42, Paragraph (i))

36. DA Nifong threatened to discontinue his office’s representation on the Animal Control board because other board members signed a petition in support of adding Lewis Cheek to the ballot as a candidate for district attorney in the upcoming election.

37. In a July 28 e-mail message to his fellow board members, Nifong wrote that he "was truly dismayed at the number of my fellow board members who signed the Lewis Cheek [petition].

"Since it is apparent that many of you do not have confidence in me, I intend to reassess the position of my office with respect to representation on the board and to inform you of my decision about whether we will continue to participate within the next two weeks," Nifong wrote.
"Animal control is a very important issue in Durham, and it is crucial that the [committee] be comprised of people who can work together in an atmosphere of mutual respect and trust," Nifong wrote.”

(Raleigh News and Observer – August 1, 2006)

38. “AN EYE ON HIS ENEMIES: As for the hard-fought campaign, Durham’s district attorney told an interviewer he had learned some things. “I don’t know if I’ve learned who my friends are, but I have learned who my friends aren’t,” Nifong said. “Which in some ways is more valuable.”

(Raleigh News and Observer – November 11, 2006)

39. At the September 22, 2006 hearing I approached Mr. Nifong in the hallway of the courthouse to ask a question unrelated to the lacrosse case. I began by introducing myself, since we had not had occasion to meet previously, and was interrupted by Mr. Nifong who stated, “I know who you are.” When I read the article referenced in paragraph 38 above, I personally felt this as a veiled threat – particularly since I had put myself in a position of publicly opposing Mr. Nifong in the November election.

DA Nifong does not “demonstrate respect for the legal system and those who serve it.” (NC Bar Rules of Professional Conduct Preamble: A Lawyer’s Responsibilities – Paragraph 5).

40. DA Nifong’s comments to and treatment of other attorneys that he has faced in this and other cases is unprofessional, disrespectful and, at times, vulgar and would not be tolerated in most business settings.

41. After lawyer Kirk Osborn asked a judge to remove Nifong from the case, Nifong said, "If I were him, I wouldn't want to be trying the case against me either”… Nifong said he was having trouble absorbing all that was filed: “I just don’t have as much time for reading fiction right now.”

(Raleigh News and Observer – May 2, 2006)

42. “The best comment I ever heard about Kirk was he was the best-dressed public defender in North Carolina."

(Raleigh News and Observer – October 1, 2006)

43. At one court hearing, Nifong suggested that attorneys for unindicted team members had put their careers ahead of their clients:

[Nifong said] “It looked sometimes over the course of the last few months that some of these attorneys were almost disappointed that their clients didn't get indicted so they could be a part of this spectacle. . . .

The tensions between Nifong and the defense boiled over May 15, a Monday, the day Evans was indicted.

Late on the previous Friday -- after Nifong had left town for the weekend -- defense attorneys called a news conference to denounce a second batch of DNA tests that the prosecutor had ordered [and had just been provided to the defense]. The lawyers said Nifong was persecuting innocents on the word of a liar.

That Monday, Nifong stormed out of his office, blowing past the reporters in the hallway. He marched to the judges' chambers, where he bumped into one of Evans' attorneys. He lit into the lawyer [Kerry Sutton], his voice carrying across the sixth floor. He made liberal use of profanity, including the word ‘mother[expletive].’"

(Raleigh News and Observer – October 1, 2006)

44. At a July 17, 2006 hearing, Nifong unprofessionally and preposterously stated in court, “It looked sometimes over the course of the last few months that some of these attorneys were almost disappointed that their clients didn’t get indicted so they could be a part of this spectacle.” (HeraldSun – July 18, 2006)

45. DA Nifong told the Court in a September 22, 2006 hearing that, contrary to what was being reported, he had checked his calendar and had given only 15-20 media interviews related to this case. (Raleigh News and Observer – September 23, 2006)

46. This statement contradicted not only media archives but also DA Nifong’s own words as reported in the Raleigh News and Observer on June 15, 2006, “After an escort service dancer said three men raped her at a lacrosse party, Nifong talked frequently with national and local reporters - 50 to 70 interviews consuming 40 hours of his time, Nifong estimated.”

DA Nifong brought his office into disrepute and raised public concern about the whole of North Carolina’s justice system.

47. DA Nifong’s actions have caused State Representatives to discuss changes to North Carolina law and the authority of the State Attorney General to prevent prosecutorial abuse.

“LAROQUE: What I'm proposing is that we allow the state's attorney general, who is elected by all eight million people in North Carolina, to be able to investigate and, if necessary, criminally prosecute DAs that behave in this type manner.” Fox News - December 27, 2006.

48. DA Nifong’s actions in this case have resulted in letters and calls requesting an investigation by the United States Department of Justice.

“GOP Rep. Walter Jones wants the U.S. Department of Justice to investigate whether the district attorney prosecuting three Duke lacrosse players charged with rape has violated their civil rights.” Fox News - December 12, 2006.

49. DA Nifong’s actions in this case have resulted in hundreds of letters asking the Governor and NC Attorney General to intervene.

“Outrage and frustration about how the Duke Lacrosse case is coming forward in droves from ordinary citizens, who for months have been writing the state's top prosecutor urging that District Attorney Mike Nifong be removed from the case and reprimanded.

We have collected nearly 400 angry letters and emails that have been sent to Attorney General Roy Cooper. Some come from parents of duke lacrosse players, others from lawyers around the country. More still, from everyday people here in the triangle and all around the world.”

(ABC 11 News – December 27, 2006)

50. DA Nifong’s actions in this case have caused The North Carolina Conference of District Attorneys to formally request Nifong “immediately withdraw and recuse himself from the prosecution of these cases.”

(Raleigh News and Observer – December 29, 2006)

51. DA Nifong’s actions in this case have caused his name to be used as both a noun and a verb:

“Ask local prosecutors about an upcoming case and there's a good chance you'll hear a similar refrain. ’I don't want to be a Nifong.’ . . .

The phenomenon raises the question: Is Nifong's legacy going to be his name as euphemism? Nifong, n. a prosecutor who says too much to the press. . . .

On the Internet, where new phrases spread rapidly, it's already happening. "Nifonged" has come to mean "railroaded," at least according to Urban Sure that site's collection of slang definitions are user-submitted. But punch "Nifonged" into an Internet search engine. More than 40,000 hits come back.”

(Greensboro – January 31, 2007)

“It appears that Ben Hill, the former town manager of Fairmont, has been “Nifonged” - the verb we have coined for when someone's character is sacrificed to contrived claims.”

(The Robesonian – February 8, 2007)

52. The United States Court of Appeals for the Fifth Circuit cited DA Nifong’s behavior in a recent Court Opinion, “This is a case of a prosecution run amok. Mike Nifong, another prosecutor apparently familiar with the “win at any cost” mantra, most surely would approve. The government set out to “get” [Cuellar] for something, and why not?”

(United States of America v. Humberto Ridel Regalado Cuellar, No.05-10065)

53. Media outlets across the United States have decried DA Nifong’s actions in this case [emphasis added]:

Fox News Online September 19, 2006

Do the principles of justice still operate in American courtrooms?

The Duke Lacrosse case, in which three white male students are accused of raping a black woman last March, is also a case about race, class conflict and political ambition. For me, the case has become a litmus test for the American justice system.

In this case, I believe the legal system is the enemy of justice...and nakedly so.

The assumption that a defendant is 'innocent until proven guilty' has been reversed.

The stakes are high for society as well. How did a legal system based on the presumption of innocence come to this juncture?

The Preamble to the Bill of Rights is often omitted from renditions of that document. It reads, "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added [the Bill of Rights]: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."

In its original intent, therefore, due process was not meant to protect an accused …from his accuser so much as to protect him from tyrannical and abusive officials. I believe both adjectives apply to Nifong from whom [the defendant] deserves constitutional protection.

Instead, a trial is likely to occur. If it does, the trial will undermine what the Preamble to the Bill of Rights declares to be the specific purpose of that document: to extend "the ground of public confidence in the Government."

As long as Nifong is the face of government, I find no reason for public confidence.

The Kinston (NC) Freepress December 26, 2006

“I’m going to ask that Mike Nifong resign his position as district attorney, not just for the good of Durham County, but for the good of all North Carolina,” LaRoque said. “This has become a universal issue and has put North Carolina in a bad light.” Stephen LaRoque – State Representative for the 10th district


News 14 Carolina January 8, 2007

“It has certainly raised concerns with respect to how we do business here in North Carolina,” said Rep. Nelson Dollar (R-Wake).


Fox News December 18, 2006

This is not the way the system is supposed to operate. Prosecutors are supposed to be out for justice, not blood; committed to the truth, at all costs, not winning, without more.

Prosecutors aren’t just morally obliged but legally required to turn over exculpatory evidence to the defense.

Prosecutors aren’t just one side in a battle.

There is a reason that the rules are such. The prosecutor represents the people. The people’s goal is winning, which doesn’t have to mean a perfect conviction rate.

The goal is supposed to be to convict the guy who did it, not frame the guy you’ve got.

Somebody should tell that to Mike Nifong. Or to the judge who is in a position to do something about who prosecutes the Duke lacrosse players charged with rape.

What is going on in the prosecutors’ office in Durham North Carolina is disturbing in ways that go beyond the ugly allegations that started this case.

The District Attorney has clearly lost sight of his mission, and with it the last remnants of any ethical compass. The case has been characterized, since the outset, by a clear failure to follow the office’s own procedures and practices.


USA Today (Associated Press) December 28, 2006

I don't see how any member of the public can have confidence in this case. I think it's making a mockery of our criminal justice system to permit this guy to keep fumbling along," said Duke University law professor James Coleman, one of Nifong's leading critics. "It's either total incompetence or it's misconduct on a scale that is extraordinary."


The American Daily/Phoenix Arizona January 5, 2007

"Mike Nifong has engaged in such incredible, almost Orwellian, misconduct in the Duke Lacrosse Rape Case that even feminists on the Left, who believe every allegation of rape is true and Democrats who will presumptively believe the word of any black witness against any white witness are quivering with quiet rage and also with fear. Not only is the integrity of the criminal justice system in jeopardy, but prosecution - that tool used increasingly to punish the politically incorrect or politically inconvenient - is also increasingly viewed as a mockery."


MSNBC – Susan Filan January 8, 2007

“It seems a shame that this case has done so much harm to so many. It is my hope that in the end, it will come to stand for something good. It will become a reminder for all those who work in the criminal justice system that we are here to serve the greater good, never ourselves, and that our oath is to administer justice in a very careful and deliberate search for the truth.
Always. No matter what. We must never ever violate the public trust.”


Mrs. Brewer was founder and chairperson of the Committee to Recall Nifong and is a member of the LieStoppers team.

*Correction: Press release originally stated, incorrectly, that the affidavit was filled on Thursday.


kbp said...

We all admire you Beth!!

Anonymous said...

You GO girl!

Anonymous said...

wow! I think I need surgery to get my jaw back up.

Incredible Beth!!


Anonymous said...

Duke's Womens Lacrosse team, Lacrosse Moms and now Beth Brewer! I would say the Women's Team are doing a little butt kicking in Durham!

Much love,


Anonymous said...

I'm with Kethra, Beth. BRAVO!!!!! You are one amazing lady.
Texas Mom

Anonymous said...

Some people will look at you and ask, "Doesn't she have anything else to worry about? Doesn't she have a life?" These folks don't understand how God made some people who just can't turn away from a wrong. I suspect you find yourself involved in many small issues and everyday events just because you don't turn a blind eye to a need, a wrong, or a bully.
You have "fight" in you. No, you're not one to worry about saying the wrong thing, coming on too strong, or risking your reputation for something you believe.
You're strong. You keep going. Even an spoiled election doesn't mean the end for you.
I respect you greatly and wish you every success with your motion.
Susan D.

Anonymous said...

Nifong said, "The reason that I took this case is because this case says something about Durham that I’m not going to let be said," said Nifong. "I'm not going to allow Durham's view in the minds of the world to be a bunch of lacrosse players at Duke raping a black girl from Durham."

Only a few stupid fools (most of whom live in Durham) believe Durham's view "to be a bunch of lacrosse players at Duke raping a black girl from Durham." The rest of us believe Durham to be a city that 1) elected a crooked DA; 2) has a crooked police department; and 3) has a contingent of students, professors and administrators at a "prestigious" university and local citizens who are more than willing to ignore the basic tenet of our judicial system -- presumption of innocence -- if the people involved fit their progressive world view -- black accuser; white accused.

Lots of cities have black girls getting raped, but after this fiasco, there's only one Durham.

Great job, Mike, of preserving your city's reputation.

joan foster said...

Beth,your courage inspires and amazes us! You are a true Hero!

Anonymous said...

I can attest to the existence of good people in Durham AND fear that pervades and inhibits.

Then there is Beth Brewer, brave and bold as well as good, doing what needs to be done in her neighborhood!


This is the best news since Kirk Osborn (Reade Seligmann's attorney)filed a motion to remove against Mr. Nifong (a motion that the two pro-Nifong judges ignores).

Time for Judge Hudson to stop making improper public statements himself and to remove Mr. Nifong from office in accordance with law and based upon compelling facts.

Michael J. Gaynor

Anonymous said...

Hudson is on the hotseat. He best do what is right or he will be walking the perp walk with Nifong

Gregory said...

Dear Beth:

I cannot imagine the courage it takes to do something like this!

You live in the middle of that mess, and you are subject to the evil that we have all seen.

Your actions are an inspiration!

I'm reminded of the Chinese students standing up to that tank.

Thanks for your backbone.

Anonymous said...

Alev said,

Very impressive job, Beth.

However, WRAL is reporting that Hudson will stay action on the complaint until the Bar deals with the case.

Anonymous said...

Any bets on how many seconds it will take Hudson to dismiss this once it hits his desk? I'm guessing less than 30.....

DDP said...


Bunny said...

Beautifully crafted and meticulously detailed affidavit, Joan! I so admire your can-do spirit. Thanks for all the hard work you've done! :)

Bunny said...

OOPS! I meant to say BETH! Beth, Beth, Beth, Beth! So sorry, dear!

Anonymous said...

ha! Judge Hudson showed you Beth Brewer! Your little affaidavit has been stayed. So much for your vendetta againist Nifong. I suppose you will appeal, though as you are like the lacrosse moms in that you are vindictive and entilted and will stop at nothing to gain your objective. The man was just doing his job, which was trying to bring those rich miscreants to justice and you and the rest of the devil worshippers( I mean that literally and figuratively as you are defending the actions of evildoers) are trying to destroy him for this because you are angry he took the complaint of a poor black woman over those rich entitled white perverts who had a history of crimes and violations unparalled by the other sports teams at Duke. Your racism is showing and so is your political ineptitude.

Beth Brewer you are being exposed for what you are: a political opponent who lost the election; that is how you are being described from coast to coast, not as a truthteller, etc but as a disgruntled political foe( you were just mentioned on ESPN sportscenter as such). Your ridiculous Cheek campaign with no candidate is also being discussed again and now you can add sore loser to your battered local reputation. You and Jackie Brown are the laughingstocks of Durham County for trying to run a campaign for a person who did not wish to serve; the mothers support march was a flop as is typical for anything you organise as you have NO LOCAL SUPPORT. Take a look at the Naacp march; that is a march with local support. I know Cooper is looking and can tell the difference. Too bad for you that he will need Durham in his bid for Governor cause you may be unpleasantly surprised as to what the AG is planning!!

Anonymous said...

I don't think she is defending the actions of the lacrosse team, 6:01 PM. I think she is criticizing the actions of the prosecutor. If he was doing his job, he wouldn't be in hot water. It's interesting you should call the three players "miscreants" instead of rapists. Are you finally seeing the light?

Anonymous said...

miscreant means evildoer; i still beleive the lax men raped and assaulted the victim; the dropping the rape charge was a technicality as rape is defined as penile penetration only in nc. in other states rape is penile or digital or another object vaginal penetration. the sexual assault charges and kidnapping charges still stand. nifong is being crucified because he took the poor black woman's complaint seriously and tried to bring these rich perverts to justice. he will pay dearly for that; maybe even with his very life before it is all over with. a white girl was raped at a duke party this weekend and the police were there in minutes of being called and they are going to arrest the suspect in the next 24 hours and he is black; that is totally different from the way the lax team was treated. they were not interviewed about a rape/sexual assault until 48 hours later despite the victim being in police custody immediately after the party and the police could have come back that night and investigated the scene but no, the victim was poor and black and they did not care about investigating. The white girl charged rape and the police were there within seconds and taking people in for questioning. In the lax case, no one was arrested for several weeks. only the captains were cooperative with the police as the rest decided they were not going to be interviewed and have not been interviewed to this day, almost a year later.