Dear Governor Easley and General Cooper:
My first request is that you both publicly call on Michael B. Nifong. the sitting Durham County District Attorney, to resign immediately from office. Governor Easley, you have publicly stated, when you were in New York recently, that selecting Mr. Nifong was "the worst appointment of [your] career." Furthermore, you also publicly stated at that time that Mr. Nifong apparently lied when he represented to you that he would not seek permanent office as District Attorney which was a condition of your interim appointment. Finally, General Cooper branded Mr. Nifong as a "rogue" and "unchecked" prosecutor because he had three innocent, young men, arrested, indicted and prosecuted for crimes that General Cooper found did not occur. Finally, and incredibly, Mr. Nifong continues in office as the chief law enforcement officer in Durham County, making life-altering decisions about who should be the subject of prosecution and handling the most sensitive and important cases. Mr. Nifong has not done the honorable thing and tendered his resignation. He may do so if you both publicly and unequivocally call for that resignation.
My second request is that, if Mr. Nifong refuses to take the honorable and responsible step of voluntarily tendering his resignation, you both join in the application for his removal pursuant to North Carolina General Statute ("NCGS") Section 7A-66, now pending in Durham County Superior Court before the Honorable Orlando Hudson. Your moral suasion and the prestige of your offices, as well as the resources that you can bring to bear, will assist the private litigant who has brought this petition and ensure the appropriate effort and resources are dedicated to this serious matter.
The third request is that a special prosecutor be appointed, either an attorney in private practice of the highest caliber and integrity, or members of General Cooper's Special Prosecution Unit who demonstrated their professionalism so well in their recent investigation, Once appointed, a special prosecutor can seek court approval for the convening of an "investigative grand jury" pursuant to NCGS Section 15-623, There is ample predicate for this. After all, General Cooper has found that Mr. Nifong and the Durham Police Department arrested and prosecuted three innocent, young men for crimes that did not occur. With the impaneling of such a grand jury, a special prosecutor can subpoena witnesses and documents and conduct an investigation under grand jury secrecy to determine whether there have violations of criminal statues including, but not limited to, possible violations of North Carolina's official "misbehavior in office" statutes (NCGS Sections 14-230 and 23 i) and false reports to law enforcement agencies ( NCGS Section 14-225). Those whose roles must be examined include Mr. Nifong, the Chief investigator for his office, Lindell Wilson, Sergeant Mark Gottlieb, Investigators Benjamin Himan and Michele Soucci, their Durham Police Department commanding officers and Brian Meehan of the DNA Security Lab who admitted, under oath, that he agreed with Mr. Nifong to withhold what Mr. Meehan knew to be exculpatory evidence and submit a false DNA report.
Let me be very clear, I do not, in any way, suggest by naming these individuals that they committed crimes or engaged in misconduct of any type. That determination, if made, would be up to a special prosecutor, a judge and jury. These individuals are entitled to the presumption of innocence and should not be prejudged. We do not do so by this request but only ask for a full and impartial inquiry.
It has been said that the institution of ethics charges against Mr. Nifong is sufficient to address the situation. This is not so. This forum only will determine if the codes governing the conduct of attorneys, generally, and district attorneys, specifically, have been broken by only Mr. Nifong. It will not, and cannot, address the conduct of the members of Mr. Nifong's office, the officers of the Durham Police Department and others such as Mr. Meehan. Others say to wait to see what the Ethics Commission determines but their action is limited and will not address the conduct of the participants in what, based on General Cooper's investigation arid public statements, can only be characterized as a "frame-up" of three young men whose parents had sent them to your state for an education. The view that the institution of a criminal investigation will somehow prejudice the Ethics Commission in its inquiry is absurd and an insult to the three members of the body hearing this matter.
My final request is that an investigation be commenced into the continued licensing of Mr. Meehan to operate a DNA laboratory in North Carolina . Once again, we do not prejudge the result of such an inquiry but there certainly exists ample predicate for such an investigation, given Mr. Meehan's statements under oath in Durham County Superior Court concerning his complicity in the withholding of DNA evidence.
We respectfully submit that it is necessary for you to put these steps into action lest it be known, or even suspected, that a person in North Carolina is immune from proper scrutiny of their actions because of their official position. The efforts of North Carolina to respond to the tragedy and injustice of the Duke Lacrosse Case have been demonstrated by the institution of the ethics inquiry of Mr. Nifong and the courageous finding of innocence of my client and his former teammates by General Cooper. The actions outlined in this letter are necessary and appropriate to continue these efforts.
My client, his family and I stand ready to assist you in any way to implement these requests.