Filing Additional 7A-66 Affidavits

While many were disappointed when Durham County Superior Court Judge Orlando Hudson decided to not act on Beth Brewer’s 7A-66 affidavit according to the specific statutory directives delineated by the North Carolina General Assembly in the language of the law, there is one great advantage to Judge Hudson’s creative interpretation of waiting to act as acting. The additional time provided by Judge Hudson’s stall will allow for additional 7A-66 affidavits to be filed by equally concerned citizens. In the week that has passed since Ms. Brewer’s filing, we have had inquiries from Durham County residents and others about the propriety of using Ms. Brewer’s filing as a template for their own affidavits.

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We greatly appreciate the willingness of those who intend to stand alongside Ms. Brewer in her effort to restore ethics, trust, and good repute to the criminal justice system in Durham County, by calling for the removal of District Attorney Mike Nifong. We welcome and encourage all who will file 7A-66 affidavits in the coming weeks to expand on the items presented by Ms. Brewer, by citing additional examples, personal or publicized, of DA Nifong's willful misconduct in office, and his conduct prejudicial to the administration of justice that has brought the Durham County District Attorney’s office into disrepute. From the inception of this site, we have asked you to add your voice to ours and many of you have done so time and again by participating in the LS forum, submitting items for publication here, and supporting the RN-VC effort. With hope and trust that you will not leave Ms. Brewer to be a lone voice standing against Mr. Nifong‘s in Durham, we again say, "Thank you."

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Unlike Durham County Public Defender Bob Brown, who resigned when faced with a similar affidavit filed against him, District Attorney Nifong shows no indication he will resign from the office he has shamed and sullied. We don’t expect his stance to change. Instead, we strongly suspect he will follow the lead of his attorney’s former client, ex-judge James Ethridge, and refuse to step down, even in the event he is similarly disbarred and rendered legally unable to function in his elected position. With this in mind, and unless the “Ethridge” bill proposed by State Senators Tony Rand and Eddie Goodall becomes law, it is imperative that the avenue of redress clearly provided by the legislature to the citizens of North Carolina be pursued. This may offer the only, or at least the clearest, path to Durham County ridding itself of the Nifong problem and returning public trust to its justice system.

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It is important to recognize that when Jerry Spivey was removed as District Attorney for New Hanover and Pender Counties under the same 7A-66 statute, it was not one, but several affidavits that were filed, as others followed the lead of Robert Kendrick, a New Hanover County resident. While it is uncertain what effect the additional filings had on Resident Superior Court Judge Ernest Fullwood’s decision to act on the filings within 10 days of Kendrick’s affidavit, referring the matter to another judge to avoid the appearance of a conflict of interest, it certainly seems that the additional affidavits may have influenced Judge Allsbrook’s ultimate findings.

“In his order removing Spivey from office, Judge Allsbrook found that ‘this incident has resulted in the loss of confidence, trust, and respect for this high office by a significant number of residents of the Fifth Prosecutorial District.’ " IN RE: JERRY L. SPIVEY

A further review of the Supreme Court’s ruling on the Spivey decision reveals perhaps the most important reason for filing additional 7A-66 affidavits. Unlike the State Bar which may choose, upon finding Nifong guilty of any or all of the charges they have brought against him, a punishment ranging from a written warning to disbarment, Judge Hudson will not have the same discretion. His only recourse, as noted by the Supreme Court, will be to remove Nifong from office.

“By another assignment of error, Spivey contends that his conduct on the night in question was not so improper as to support his removal from office. Relying on several cases involving this Court's censure or removal of judges under N.C.G.S. § 7A-376, Spivey argues that a district attorney cannot be removed from office for directing racially abusive epithets against a member of the public while not acting in his official capacity. We do not agree.

"[4] The statutory procedures for removal of district attorneys are entirely different from those providing for censure or removal of judges. Under N.C.G.S. § 7A-66, if the
superior court judge finds that one of the enumerated grounds for removal of a district attorney exists, "he shall enter an order permanently removing the district attorney from office, and terminating his salary." N.C.G.S. § 7A-66 (emphasis added). Removal is the only sanction available and is mandatory.” IN RE: JERRY L. SPIVEY

For those looking to expand upon Ms. Brewer’s affidavit, the removal of Jerry Spivey offers additional assistance. Mr. Spivey was removed from office for conduct prejudicial to the administration of justice that brought the office into disrepute - namely, a drunken instance of hatefully hurling vile racial slurs at a fellow bar patron. It is worth noting: (i) Mr. Nifong is charged with both willful misconduct and conduct prejudicial to the administration of justice that brought the office into disrepute; (ii) that it has often been held that willful misconduct is, in and of itself, conduct prejudicial to the administration of justice, the Spivey case and the Supreme Court ruling on its appeal, as noted above, shows clearly that conduct prejudicial to the administration of justice may occur absent willful misconduct; and (iii) as demonstrated by the Spivey case, conduct outside the bounds of the duties of a District Attorney may be cause for removal.

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In her affidavit, Ms. Brewer offers, as examples of Nifong's conduct prejudicial to the administration of justice, both published and personal encounters with the district attorney. Some have inquired whether their affidavits should include their own personal experiences with Nifong. Clearly, the answer would be "Yes".

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As evidence of the depth of disrepute that has befallen the Durham County District Attorney’s office as a result of Nifong's conduct, Ms. Brewer noted in her affidavit that Mr. Nifong’s name is now being used as a noun and a verb. While Ms. Brewer cites three examples of such, several additional citations have come to our attention. A compilation of which can be found here: LS Forum: "Nifong, the noun and the verb, go mainstream".

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Some of the more noteworthy that are recommended for inclusion in subsequent affidavits include:

• From the Washington Times article, “Wronged and Nifonged”:

"This newspaper reported that a new verb has been coined, to "nifong." It is a synonym for "to frame." Others have coined the definition, "We can 'Nifong' someone when we trump up criminal charges based on flimsy evidence allegedly for political purposes."

"…Thus, the Naval Academy rape case from its start resembles the Duke Lacrosse rape case, where three innocent team members were publicly "nifonged" by the Durham District Attorney.”

• Kathleen Parker of the syndicated Washington Post writer’s group wrote:

"Lacrosse players 'Nifonged': New verb describes trumping up charges on flimsy evidence"

"Given recent events in Durham concerning the alleged Duke University lacrosse "rape" case, it is now possible to declare parody dead. How does one parody a parody?

"All is not lost, however. We can celebrate the addition of a new verb to our American lexicon -- "Nifong." When the moment calls for activities that need no elaboration, we already "Bobbitt," "Bork" and "Lewinsky." Now we can "Nifong" someone when we want to trump up criminal charges based on flimsy evidence allegedly for political purposes. In short, when we want to screw up someone's life."

• A recent google search for the word “nifonged” yielded 14,000 results, while a yahoo search for the same word found over 25,000 hits.

• In a recent interview , Peter Sokolowski, Merriam-Webster associate editor noted the rarity of the rapid acceptance of any new word, let alone a proper name, while noting that "nifonged" has potential for inclusion in the dictionary..

“It's rare for a word to quickly make its way into the dictionary, although it happens. And it's even more unusual for a proper name to take on new meaning, said Peter Sokolowski, Merriam-Webster associate editor. "Nifonged," has made it into print without quotations a few times. That gives it a chance. "In a sense, it's just a hair below our radar," Sokolowski said. "It is starting to get used. And that's how it happens that a word ends up in the dictionary."

In addition to the dishonor of having his name commonly used as derogatory nouns and verbs, DA Nifong has now also become the yardstick by which disrepute, misconduct, corruption, poor judgement, and unethical behavior are measured. Notable examples of this phenomena that would be recommended for insertion in future affidavits include:

• To support his dissenting opinion in Slagle v. Bagley, US Court of Appeals Circuit Judge, Boyce F. Martin Jr. employed the State Bar charges brought against DA Nifong as a footnote reference.

"Lawyers must uphold their pledge to report violations, (1) and prosecutors who abuse our system of justice by disregarding ethical rules for their own self-interest must be sanctioned appropriately."

"(1) See Ohio Code of Prof. Resp., EC 1-4 (providing that lawyers should bring to the attention of officials all unprivileged knowledge of conduct of lawyers that is clearly in violation of the Disciplinary Rules). See also David Barstow & Duff Wilson, Prosecutor in Duke Sexual Assault Case Faces Ethics Complaint From State Bar, N.Y. TIMES, Dec. 15, 2006 at A22 (reporting that the North Carolina State Bar filed a formal ethics complaint against Durham prosecutor Michael B. Nifong for reasons including improper commentary about the defendants and evidence).

• Scott Jaschik of Inside Higher Ed used Nifong as his reference in making the point of how egregious another prosecutor's rush to judgement was in his article, "The Right to Remain Silent":

"Several other experts said that they were concerned that O’Toole was ever facing legal charges. Victims of crimes “have the right not to report,” and college officials should not be prosecuted for respecting a victim’s request of confidentiality, said Sheldon E. Steinbach, a lawyer in the higher education practice at the Washington firm Dow Lohnes. “These students chose not to go forward,” he said, adding that a prosecutor indicting a dean of students in such a case was “akin to Mike Nifong” in not checking out all the circumstances before drawing a conclusion."

• A recent letter to the Charlotte Observer by Gary Klipp read:

“Voters blew opportunity to say no to corruption.

“In response to "1 charge only begins to tell Black's story" (Feb. 14):

"When Tommy “Tomlinson says Jim Black "never would have won had voters known the whole truth," he gives too much credit to the more than 5,000 voters who re-elected Black in November.

“These voters had more than enough information to know Black was corrupt -- just as voters in Durham did to know District Attorney Mike Nifong lacked integrity.”

• The Daily Astorian, in an article highlighting public corruption, "Public service often leads to crisis," quoted Josh Marquis, vice president of the National District Attorneys Association, offering Nifong as the example to cite, while also noting only one similar villain.

“Power is called the ultimate aphrodisiac. It is also an intoxicant. That is one way to explain what happened in the recent case of Durham County District Attorney Michael Nifong. It is alleged that Nifong withheld DNA evidence in the Duke University lacrosse players case.

"What Nifong has done is catastrophic," said Marquis. "The closest example is what Julie Leonhardt did." Leonhardt was Marquis' predecessor, and she obtained indictments against Astoria police without sufficient evidence. Leonhardt was disbarred, convicted and incarcerated.

“Speaking to ABC News, Marquis said: "As prosecutors, we do not try our cases in the media. We do not file charges frivolously. ... Some of his actions have brought great disrepute on the profession of prosecution."

As a final citation of how far into disrepute DA Nifong has brought his office, consideration could be given to the recent SNL skit and Dennis Miller’s appearance on the Tonight Show this week. If you missed Miller’s bit, you can view it here or read below:

“This DA is a bad guy Jay, you've got a local duffus ehhh wearing his belt buckle he's in haggar slacks he's got his belt buckle up around his waist ban he he thought his life was going to make him a John Grisham character it didn't pan out that way, you know, so he just wanted to get the horse into the pension barn they had this Tom Wolfe scenario dropped into his lap like any good southern boy with a Christ complex he decides to be Atticus Finch but in this case the only three mocking birds that got crooked (croaked) are the duke kids because they didn't do anything this woman is this womans's trouble man, she's like the Louvre of DNA you know so this is like ah this is like Barry Sheck's idea of a Six Flags Amusement Park or something. I hope Nifong goes to jail and I hope as part of his work release program he has to go strip at sorority parties or something.” Dennis Miller with Jay Leno on the Tonight Show

To those considering filing additional 7A-66 affidavits alongside Beth Brewer, keep in mind that there is no fee attached to the filing and, although local residents are encouraged to participate, one does not need to be a Durham County resident to file. For additional information or clarification on preparing or filing your affidavit, please feel free to use the email links in the drop down menu at the top of this page.

Thank you for once again adding your voice to ours.

Where to File: 3rd floor of the Durham County Judicial Building - 201 East Main St - Durham, NC