Easley’s Comments Questioned

Recently, the News & Observer reported on comments made by NC Governor Mike Easley at New York University Law School. In those comments, the governor was critical of Durham County District Attorney Mike Nifong, referring to him as his “worst appointment” and adding that DA Nifong had broken his promise that he would not run for office after being appointed on an interim basis only.

"Gov. Mike Easley said last month that picking Mike Nifong to be Durham's district attorney was the worst appointment of his career, and he said Nifong broke his promise not to run for the office.

"Easley told law students in New York that Nifong's decision to seek office in last fall's election almost prompted him to consider yanking Nifong from office.

"I almost un-appointed him when he decided to run," Easley said. "I rate that as probably the poorest appointment that I've," the governor trailed off before adding "I've made some good ones."

"Easley, a former prosecutor, was speaking at New York University on Jan. 22 about public service. After the speech, someone in the audience asked him to rate Nifong's performance in the controversial sexual assault investigation against three former Duke University lacrosse players.

"The governor said Nifong had done a poor job.

"You don't need me to tell you that," he said.

The N&O report confirmed details of Easley’s speech that were first noted on January 22 by a commentator at KC Johnson’s Durham in Wonderland blog.

“Governor Easley spoke at NYU Law School today and criticized the conduct of Mike Nifong in the Duke case and said it was a bad appointment and that he appointed Nifong in part as a replacement because he said he would not run again.

“He said he did not know what the evidence would demonstrate in the case but as a former prosecutor he could say that Nifong's public comments about the accused were wrong.

“He did mention the racist remarks made that night by some lacrosse players. I am not sure how that relates to the accused as none of them were accused of making these remarks but I believe he wanted to criticize Nifong but not go as far as to say that this was a miscarriage of justice. This could be for political reasons.

“This is interesting as it is the first time that I am aware of, the governor openly criticizing Nifong's conduct.”

Easley’s comments have been met in recent days by criticism and skepticism by Nifong apologists and critics alike. Nifong’s supporters wonder why Nifong, unlike other Easley appointees, would have been made to promise not to seek to keep his office. The apologists have also expressed doubts about the explanation issued by the governor’s spokesperson, Renee Hoffman, who claims the vow was asked for in order to not influence the subsequent election.

The Herald Sun reveals Hoffman’s clarification:

“Gov. Mike Easley did not want an "heir apparent" in the Durham district attorney's chair, and that is why he extracted a promise from Mike Nifong not to run for the office when he was appointed to it in 2005, a state spokeswoman said Monday.

“In appointing Nifong to succeed former District Attorney Jim Hardin Jr. -- who became a judge -- Easley merely wanted a "placeholder or non-candidate" to fill the job until last year's election, said Easley spokeswoman Renee Hoffman.

“That way, those who wanted to compete at the ballot box "would be able to start from a level playing field," Hoffman added.

“She said Nifong was "explicit" with the governor's legal counsel, Reuben Young, that "he had no intention of running for the office. The governor would have looked at the acting appointment very differently if he had known Nifong planned to run."

“But Nifong broke his promise and ran anyway, winning a May 2006 Democratic primary and then gaining a four-year term in November's general election, Easley told students at New York University last month.” HeraldSun

Duke University Law Professor, Robinson Everett, who endorsed Nifong in both the primary and general elections, wrote the News & Observer to air his reservations about Easley's claims and motives.

“I was surprised by your Feb. 3 front-age headline "Easley: Nifong broke his word" and the accompanying article. The summary line with that article asserted that Gov. Mike Easley said "Nifong promised not to run for a full term." Referring to recent remarks by Easley to an audience at New York University, the article stated that in appointing Nifong the governor had relied on recommendation by two former Durham district attorneys and "was also comfortable with the appointment because Nifong said he would not run for office."

“If Easley believed he was appointing a competent district attorney, I cannot understand why he wanted a promise from Nifong that he would not run for this position in the next election.

“Indeed, it would seem that if Nifong lived up to the high recommendation he had received, Easley would have wanted him to run for a regular term as district attorney at the next election and continue to render good public service. “Of course, I understand why Easley now wants to distance himself from Nifong; but I cannot understand why he would have requested or welcomed a promise by Nifong that he would not run in 2006 for election as Durham district attorney.”

The Herald Sun offered similar sentiments from local defense attorneys Mark “He really believes in the case and that's the bottom line for me" Edwards, who appeared in a campaign ad for Nifong, and John “DNA evidence would give more credence to the prosecution’s theory that something happened” Fitzpatrick, a Nifong campaign contributor.

“Some were not satisfied with Easley's explanation when informed of it Monday evening.

“They said they weren't aware of the governor extracting promises from other appointees not to run for office, including Orange-Chatham District Attorney Jim Woodall.

“Like Nifong, Woodall was appointed chief prosecutor for his jurisdiction after his predecessor became a judge. Woodall then ran unopposed in last year's election.

"Is there something special about Mike [Nifong]?" veteran lawyer Mark Edwards wondered aloud Monday. "Is there something special about Durham?

"I think this raises more questions than it answers," Edwards said of the governor's explanation. "Out of all the appointments the governor makes, why was this one different?"

“John Fitzpatrick, president of the Durham Criminal Defense Lawyers Association, also was scratching his head over the governor's statement.

"An answer like that is more confusing than it is clarifying," he said. "It's an answer without substance. It begs the question of consistency. Does this same standard apply just to Mike Nifong or to other appointees as well? That's what people are asking. The public clearly voiced their position that they wanted Mike Nifong to be DA. He just answered the call of the people."

News 14's Kenneth Moton reported that Governor Easley offered the following expansion of spokesperson Hoffman's clarification while also explaining, quite oddly, why he didn't follow through with his thought of un-appointing Nifong.

"Easley says Nifong told his legal counsel he would not seek office in 2006 but he broke his promise.

“When you're appointing somebody who's going to run, you look at them totally differently because you want to know what their skills are dealing with the press and running the office long-term,” said Governor Easley.

"He also says he thought about un-appointing Nifong.

“Once the election occurred and after the primary was uncontested, we didn't want to do anything that would upset the office,” the governor continued."

It should be noted that, despite the Governor's assertion, neither the primary nor the general election saw Nifong run uncontested. It's difficult, as well, to believe that either explanation will sit well with supporters of Nifong, the "worst appointment," who Easley once hailed as follows:

“For over 26 years, Mike Nifong has worked in the Office of the District Attorney in Durham. His service as an Assistant District Attorney and currently as Chief Assistant District Attorney has prepared him take over the day-to-day operations of the office,” Easley said. “I am certain that his commitment to the office and the people of Durham will continue in his role as Interim District Attorney.”

Commentators unwilling to accept, rationalize, and/or apologize for Nifong’s misconduct have also questioned the governor’s comments, citing the timing (well after they could have been relevant) and venue (far outside earshot of local media) of Easley’s remarks.

John Hood, President and Chairman of the John Locke Foundation:

“But this is why the disclosure of Easley’s comments are so damaging. As far as we know, the governor didn’t attempt to rein Nifong in. A former prosecutor himself, Easley seems never to have intervened to encourage the Durham office to do its job properly. When the case took a turn for the outrageous, he didn’t ask for Nifong’s resignation.

“What’s worse, when Nifong filed to run for DA last year and drew a strong challenge from Freda Black, Easley didn’t bother to mention that Nifong had lied to him about his political intentions. Democratic primary voters might well have valued that piece of information. By the fall, when Nifong’s malfeasance was clearly evident, Easley made no move to set the record straight. He did nothing.

“In the past, the governor has avoided political traps by staying put. In this case, however, inaction was indefensible. And then, rather than explaining all this to North Carolinians through, say, a press interview or statement, Easley journeyed to New York, weighed in way too late on one of the most potent controversies his state has seen in years, and then refused invitations to comment when North Carolina journalists eventually got their hands on a recording.

“Not Easley’s finest moment. Not by a long shot. The citizens of Durham and the state as a whole deserve a full explanation – and, frankly, an apology.”

Brooklyn University Professor KC Johnson, whose Durham in Wonderland is the Hoax blog of record:

“Doesn't it seem odd that, in making an important critique about the highest-profile case in years in his state, the governor delivers his remarks in New York?”

Defendant Nifong and his defense attorney, David Freedman, have both declined to refute the charges made by Governor Easley. Nifong’s silence and willingness to take the public admonishment given him by Easley is understandable, considering the tentative grasp he has on both his license to practice law and the office he sold his soul to keep. Defendant Nifong’s refusal to defend himself against the Easley's accusations appears to mirror his recent decision to hire Assistant Attorney General Brian Wilks for a key managerial position in his office. Both decisions give the impression that Nifong knows his days as Durham County District Attorney are coming to a close.

While there has been no indication from any credible source that AGA Wilks is being brought into the Durham District Attorney’s office as an “heir apparent,” speculation has been rampant both on the internet, and locally, that Wilks has been tapped as the “District Attorney in waiting.”

Brian Wilks - Durham County's next DA?

In part, it would appear that this speculation is feuled by Mr. Wilks' reputation for ethics and integrity, a sorely needed commodity at the helm of the DA’s office, and also by the ambition demonstrated by Wilks’ failed bid to win a seat on the Durham County District Court.

If nothing else, the latter certainly seems consistent with a pattern demonstrated by recent Easley appointments, as noted by a recent Charlotte Observer article.

“What's the easiest way to become a judge in North Carolina? Lose an election. Also, register as a Democrat.

“In the past four weeks, Gov. Mike Easley has appointed to judgeships at least four people who were on the November ballot and lost. Judges are elected in North Carolina, but the governor appoints them when vacancies occur. And there have been extra vacancies lately because the legislature approved 17 new District Court judge positions to handle a growing workload.

“Republicans are griping about whether the will of the people means anything. They say Easley, a Democrat in his second term, is stacking the judiciary.

"That should cause people some concern," said Senate Republican leader Phil Berger, a lawyer from Eden, "particularly those who feel like we need a nonpartisan judiciary."

“One of the new judges, William "Tripp" Helms, was the Union County clerk of court before he lost. He's been appointed to the local District Court bench.

"The governor and I certainly never had a conversation about my election," said Helms, who hopes to be sworn in soon.

"I've had a lot of support from Republicans and Democrats, and I am really committed to the nonpartisan nature of this office."

“Among other defeated candidates, one has been appointed a Superior Court judge, one a judge on the state Court of Appeals and one a District Court judge in Johnston County -- until his appointment was revoked amid complaints from law enforcement.”

The additional appointees referenced appear to include two Easley appointments who failed to win their election, Court of Appeals Judge Linda Stephens (sister-in-law to Durham County Judge Ronald Stephens) and Superior Court Judge Ripley Rand, son of NC Senate Majority Leader, Tony Rand. Judge Rand’s latest appointment, following his November loss to Paul Ridgeway, marks his third judicial nod from Easley having been appointed to a “Special” Superior Court Judgeship four years ago and then to the District 10B bench last February. Judge Stephens is also a repeat Easley appointment, having first been appointed to the Court of Appeals by the Governor in early 2006 before losing in November to Donna Stroud and then being reappointed to the same court.

The final appointee referenced in the Charlotte Observer article, Judge Dale Stubbs, is also somewhat of a repeat Easley appointee having the dubious honor of being appointed twice within two weeks to the same post.

Dunn Daily Record:

“The Governor's Office announced Friday that former Assistant District Attorney Dale Stubbs had been appointed as District Court judge, only to send a follow-up notice instructing the press to disregard the announcement.

“The press release said Gov. Mike Easley appointed Dale Stubbs to the District Court bench in Lee, Harnett and Johnston counties, the 11th Prosecutorial District.

"Dale Stubbs brings more than two decades of trial experience to the bench," Gov. Easley said in the release. "His legal knowledge and training will be a great addition to the court."

“Later that day, Renee Hoffman of the Governor's Press Office sent an e-mail to the media.

“The e-mail said, "The press release naming Dale Stubbs as a District Court judge in Johnston, Lee and Harnett counties was sent in error. Please disregard it."

“Phone calls to Mr. Stubbs were not returned by press time this morning.

“Although it is not known if it is connected, Tammy Amaon, Johnston County Sheriff's spokesperson, said today Capt. A.C. Fish of the narcotics division had been upset about cases which had either been dismissed or pleaded down. Most of these cases, Ms. Amaon said, were handled by Mr. Stubbs during last fall's campaign.

“Mr. Stubbs was defeated for district attorney in November by Susan Doyle, who said it would be inappopriate for her to comment.

"Capt. Fish was so upset he was going to resign," Ms. Amaon said. "He discussed it with the sheriff.

"They were mainly cases handled by Mr. Stubbs during the election."

Apparently, the "error" was eventually deemed the actual error as Easley, ever the political weathervane, reappointed Stubbs district judge eleven days later.

“Dale Stubbs is scheduled to be a judge -- again.

“Gov. Mike Easley announced Tuesday that Stubbs, a longtime Johnston prosecutor, would take a district judgeship serving Johnston, Lee and Harnett counties.

“Easley made the same announcement 11 days before, only to retract it two hours later.

"Dale Stubbs brings more than two decades of trial experience to the bench," Easley said Tuesday in a statement identical to one he made Jan. 19.

"His legal knowledge and training will be a great addition to the District Court."

“Easley's office said the earlier reversal was a clerical error.”

It should be noted that, while Easley appears to have “un-appointed” Stubbs, this decision clerical error occurred before the appointee took office. Easley’s assertion that he almost un-appointed Nifong would appear to have been a consideration that could not have occurred until after Nifong took office. To date, our research does not indicate a procedure by which an un-appointment could occur after a district attorney is sworn in, and Nifong did not file for his campaign bid until several months after taking office. Further, the assertion that Easley could have un-appointed Nifong appears to conflict with the claims that the governor had no procedure by which to intervene with Nifong’s false prosecution of the Hoax.

It also appears, given Gov. Easley’s penchant for appointing failed candidates, that one of our own previous assumptions was inaccurate. Had Durham County voters ousted the disgraced prosecutor in November’s election, Nifong may very well have been reappointed by Easley…as long as he promised not to run again, that is.