Motion to Suspend Nifong Filed

A ten page motion has been filed today with the Durham County Superior Court requesting the Court act as directed by NCGS §7A-66, suspend Durham County District Attorney Mike Nifong pending further proceedings, and to proceed with his removal from office as directed by NCGS §7A-66. In support of the motion, petitioner Beth Brewer reiterates her charges that DA Nifong "has committed willful misconduct in office, and that he has engaged in conduct prejudicial to the administration of justice which brings the office into disrepute, both of which are grounds for removal from office under NCGS §7A-66."

As filed with the Court, the motion reads, in part, as follows:

MOTION TO SUSPEND DISTRICT ATTORNEY NIFONG PENDING FURTHER PROCEEDINGS AND TO REMOVE HIM FROM OFFICE

COMES NOW PETITIONER ELIZABETH M. BREWER, by and through the undersigned attorney, and prays the Court to act as directed by NCGS §7A-66, Removal of District Attorneys, to suspend District Attorney Michael B. Nifong, pending further proceedings, and to proceed under the provisions NCGS §7A-66 to remove him from office, and in support of this motion shows the Court the following:

1. On February 9, 2007, Petitioner filed an affidavit in this matter under the provisions set forth in NCGS §7A-66, Removal of district attorneys, requesting the removal of District Attorney Mike Nifong on the grounds that District Attorney Nifong has committed willful misconduct in office, and that he has engaged in conduct prejudicial to the administration of justice which brings the office into disrepute, both of which are grounds for removal from office under NCGS §7A-66.

2, NCGS §7A-66 states in part: "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."

3. On February 12, 2007, this Court issued an Order that "all further proceedings in this case are hereby held in abeyance pending the trial before the North Carolina State Bar."

4. More than sixty days have passed since the filing of the Petition in this matter.

5. As part of the February 12 Order, the Court made "preliminary findings of fact," including notice of District Attorney Nifong's pending disciplinary proceedings before the North Carolina State Bar, scheduled to begin on June 12, 2007.

6. On April 13, 2007, the panel of the North Carolina Disciplinary Hearing Commission assigned to Mr. Nifong's case denied Mr. Nifong's Motion to Dismiss some of the charges before the panel. Attachment 1

7. The Court can take notice of the fact that the Grievance Committee of the North Carolina State Bar conducted a nine-month examination of Mr. Nifong's conduct in this case prior to finding probable cause of his violations of ethics rules and filing its complaint and amended complaint (filed with Petitioner's Affidavit) with the Disciplinary Hearing Commission of the North Carolina State Bar.

8. The Court correctly did not find that a complete evidentiary record is required prior to a probable cause determination, which is what the statute by its plain language requires to be made within 30 days of the filing of the petition.

9. On April 11, 2007, the Attorney General of the State of North Carolina, Mr. Roy Cooper, announced the results of the extensive investigation made by the special prosecutors, Jim Coman and Mary Winstead, into the cases cited in Petitioner's Affidavit. Attachment 2

10. In that statement he announced the dismissal of the charges in the cases. He stated unequivocally that the defendants were innocent. He stated that there was no evidence to support the charges, and said they were "the tragic result of a rush to accuse and a failure to verify serious allegations." Attachment 2

11. Attorney General Cooper further stated:

"The eyewitness identification procedures were faulty and unreliable. No DNA confirms the accuser's story. No other witness confirms her story. Other evidence contradicts her story. She contradicts herself. Next week, we'll be providing a written summary of the important factual findings and some of the specific contradictions that have led us to the conclusion that no attack occurred.

In this case, with the weight of the state behind him, the Durham District Attorney pushed forward unchecked. There were many points in the case where caution would have served justice better than bravado. And in the rush to condemn, a community and a state lost the ability to see clearly. Regardless of the reasons this case was pushed forward, the result was wrong. Today, we need to learn from this and keep it from happening again to anybody.

We have good District Attorneys in North Carolina who are both fair and tough. And we need these forceful, independent prosecutors to put criminals away and protect the public. But we also need checks and balances to protect the innocent. This case shows the enormous consequences of overreaching by a prosecutor. What has been learned is that the internal checks on criminal charges – sworn statements, reasonable grounds, proper suspect photo lineups, accurate and fair discovery – all are critically important." Attachment 2

12. In a further interview Mr. Cooper stated: "When you have a prosecutor who takes advantage of his enormous power and overreaches like this, then yes, it's offensive." Attachment 3

13. These remarks by the Attorney General, made after a three month investigation, coupled with the finding of probable cause by the Grievance Committee of the North Carolina State Bar for multiple violations of ethic rules, and Mr. Nifong's response to the Bar's Complaints, clearly constitute grounds for a finding of probable cause by this court that Mr. Nifong has acted in a manner giving grounds for removal under NCGS §7A-66, an existing mechanism for protecting the public and restoring trust and honor in the criminal justice system of NC Judicial District 14A, Durham County, North Carolina.

14. Mr. Nifong has to this date ignored numerous requests that he resign from office, and has stated through his attorney his intention to serve out his term. Attachment 4

15. By his own misconduct, Mr. Nifong's continuing in office as District Attorney is an absolute impediment to the existence of a trustworthy criminal justice system in Durham County.

16. Every day that the justice system permits Mr. Nifong to remain in his position of great power is an additional reason for the citizens to doubt that real justice exists in Durham County.

17. Mr. Nifong's willful misconduct and conduct prejudicial to the administration of justice which brings the office into disrepute is so evident and transparent at this point that his prompt removal from office can be based on matters in public record. The report Mr. Cooper stated would be released this week will constitute a sufficiently full evidentiary record to go forward with a removal hearing.

18. Mr. Nifong should be suspended immediately. This will permit him to concentrate on his own defense, while permitting the citizens of Durham County to have restored faith in their criminal justice system.

19. The State Bar proceedings concern whether Mr. Nifong committed breaches of the ethics code of the Bar. They may result in various sanctions, ranging from a reprimand to the revocation of his license to practice law. They may be delayed at any time by the filing of additional charges. They have a different purpose than judging whether Mr. Nifong should be removed from office.

20. The concurrent statutory authority of the Bar and the inherent authority of the Courts over the conduct of attorneys is well-established. Here, there is not only inherent authority but a legislative directive to the Court to conduct its own inquiry.

21. NCGS §7A-66 is explicit in its time requirements. The clerk shall "immediately" bring the affidavit to the resident Superior Court judge, who "shall within 30 days" either refer them to another judge or act on them, by dismissal, or by finding that the charges if true constitute grounds for removal, and finding probable cause for believing the charges are true.

22. The inherent power of the courts to do all things necessary and proper for the administration of justice does not include the power to ignore specific statutory directives which require prompt action to protect the citizenry.

23. Mr. Nifong's due process rights would not be impacted in any way by suspension from office.

24. Mr. Nifong's due process rights do not include the right to remain in his position of power and the authority of the state while bringing shame and ridicule on the justice system of Durham County.

Wherefore, the Petitioner prays that this Court suspend District Attorney Michael B. Nifong immediately; that this Court proceed with a hearing to remove him from office, that the Court permit an opportunity to be heard on these issues, and that this Court order such further relief as it deems just and appropriate.