Hello. I am very proud to be here today, as a continuing legal education presenter in such great company, and especially proud to be asked to do so by the NC Institute for Constitutional Law. I have never been prouder in my life than I am to come to you today as Beth Brewer’s lawyer.
I must initially disclaim any specialty in this area - I am a one person outfit with a home office and do primarily wills and elder law planning. My litigation experience is primarily in administrative law - land use and environmental issues, representing do-gooder plaintiffs. I have sued both WalMart and the Department of Transportation, though, so I guess you could deduce that I don’t like bullies..As Judge Orr, the founder of the NCICL, would testify, in the month of March I don’t typically think about much of anything except college basketball. So while I was aware that there were rape charges against the lacrosse team, it was on Sportscenter that I first saw Mr. Nifong. Surrounded by cameras, he was saying, “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.” I said “What in the world is going on?” I didn’t have to know a single thing about the facts of the case to know that something was terribly wrong in Durham..Along about that time, LSU beat Duke, so only having the Duke Women to follow, I began to read about the case. I had only two connections to the case - I am a graduate of Duke Law School and a member of the North Carolina State Bar. What I read horrified me so that after three or four days I began to feel as if what was happening was SO bad that those two things obligated me to do something..My reading took me to the Court TV message board about the case. I read for a couple of months, and on Memorial Day weekend registered as “Buncombe” and began trying to share what knowledge I had on NC law, in hopes of putting down misinformation. One area of confusion concerned the Attorney General's ability to remove Mr. Nifong from the case and assign it to the special prosecutions division of his office. NCGS 114-11.6 established this division, but the NC Supreme Court, in State v. Comacho, ruled that special prosecutors could be established only if the District Attorney specifically asked AND the Attorney General agreed. Since Mr. Nifong did not ask, truly Mr. Cooper's hands were tied..I met Beth Brewer on the Court TV boards. She posted as “jmoo.” It was obvious from the start that she was not going to be content merely voicing her outrage on a message board. She wanted to know how to get copies of the motions being filed in the case. I took her through the process, told her how nice the clerks of court were, and she went and did it. She also went to the hearings and transcribed her notes for the rest of us in cyberspace. Beth is an accountant, a mother, wife and a citizen committed to justice. She had never been involved in politics, and she is a Kentucky fan..When you talk about removing District Attorneys from office, of course the primary method is the ballot box. That seemed to us to be by far the best way to remove Mr. Nifong – to show the world that Durham did not approve of their DA's behavior. The May Democratic primary had, in my opinion, three questionable candidates, and Mr. Nifong came out ahead. In June, folks in Durham were desperate not to let Nifong run unopposed for DA in November. Two candidates launched petition drives to get their names on the ballot. In a truly heroic effort, supporters of Durham County Commissioner Lewis Cheek managed to garner over 10,000 signatures in two weeks’ time, to get his name on the November ballot as an unaffiliated candidate. Steve Monks managed only about 5000 names on his petition, so his name was not on the ballot. Beth gathered signatures on petitions for both candidates..During July, both Beth and I managed to hook up with some incredibly talented folks who were also not content merely to complain to each other about the case. In late July, we decided to start a blog on the internet, to post our research on the case, our opinions, and our humor. Just as we were doing this, Lewis Cheek held a press conference announcing that due to professional commitments to his law practice, he had determined that he could not serve as district attorney, and that if he were elected in November (which he would have been, I bet), he would not serve, but would ask the governor to appoint his replacement. He pointed out that his name would still be on the ballot, that he would not campaign but that folks could vote for him, and that he would vote for himself..I will never forget that day. We were devastated. We had been so ready to support Lewis..I said - “So I guess it’s the Anybody But Nifong campaign now.” Beth responded, “yep,” others chimed in, and slowly the group’s spirits raised. That night we sent out “Anybody’s” press release, announcing his candidacy, and sent it to all the media we could think of. We were so tickled when Mr. Nifong in his own press conference the next day said he understood folks were referring to it as the “Anybody But Nifong” campaign that we had Anybody put out another press release and launched LieStoppers that same day..Steve Monks put a nix on using ABN as a campaign slogan, by his entry in the race as a write-in candidate. Well, Lewis wasn’t going to campaign, so Anybody needed a PAC. It couldn't be an internet PAC, either, but had to be a real group of local people. Luckily, I had worked with a municipal PAC in Buncombe, and was able to help Beth get one started pretty quickly. She recruited a fellow accountant to act as Treasurer, called it Recall Nifong - Vote Cheek, and worked tirelessly through the fall to remove Mr. Nifong from office in that manner. As we all know, Mr. Nifong won that three-way election in November, although he was denied a majority by the hard work of Beth and many other local volunteers..After the election there seemed only one other thing to do. We began exploring 7A-66, the North Carolina statute setting forth the procedure for the removal of District Attorneys through the judicial process. 7A-66 is a straightforward statute. It begins by laying out the grounds for removal of District Attorneys, followed by the procedure..Points about statute:
- Does not say who can file affidavit.
- Silent re who pays attorneys.
- Ex parte until judge acts.So we read the law, and we read the two cases interpreting the statute, In re Spivey and In re Hudson, and we drafted an affidavit. Beth is an accountant, as I said, but she could easily have excelled in our profession. She actually drafted her affidavit, with me refining it..By January, it had been announced that Mr. Freedman was representing Mr. Nifong for the Bar disciplinary proceedings. I took the plunge on to Mr. Nifong's enemies list by sending Mr. Freedman a letter informing him of our plans to file a 7A-66 affidavit, and giving him an opportunity to resign before we filed. To no one's surprise, we received no answer..We filed the 7A-66 affidavit at the beginning of February, after the amended Bar complaint had issued..Well, she filed it on a Friday, and that evening Judge Hudson told the media he wouldn’t act on the petition until the conclusion of the DHC
hearing. I decided I’d better quick file a notice of appearance, and in the process argue that the statute obligated him to act within thirty days. To no avail. After the Attorney General’s report, we filed a Motion to Suspend Mr. Nifong, also to no avail..In my opinion, we could have gone to the Court of Appeals anytime after March 11, to ask for a writ of mandamus requiring Judge Hudson to act on Beth’s affidavit. We didn't because of lack of time and energy, due primarily to parental health crises (all parents currently doing okay, I am glad to say.) Unlike the right of appeal of a Judge's decision under 7A-66, which Spivey held applied only to a removed DA, the writ of mandamus ought to be available to the affiant under 7A-66..After Mr. Cooper's report of the special prosecutors and his declaration that the players were innocent and that the DA had misbehaved, we decided we could make a motion in the cause to have Mr. Nifong suspended. This was seat of the pants lawyering, a way to remind him the affidavit was still out there, but Judge Hudson wasted no time denying the motion. And that's where we were, until the DHC hearing week before last..I want to talk a little about what happened last Monday. I do not know exactly what Judge Hudson said to reporters that morning or why he said it, but I expect he was trying to deflect media attention, while he went in and got to work figuring out what to do about Mr. Nifong and his July 13 resignation. I know he was not off at some judge's conference but was working hard all day. I spoke to him around one in the afternoon, pointing out Mr. Williamson's assurance that the Bar's written findings would be available in a matter of days and not weeks, and explicitly doing the math that showed Judge Hudson could suspend Mr. Nifong immediately and then hold a hearing or not at his option, given that Mr. Nifong's resignation would take effect prior to the outer limit 30 day hearing date specified in the statute. I urged his immediate suspension, and Judge Hudson, bless him, announced late that afternoon that he would issue an order of suspension the next day..The removal hearing has been set for tomorrow at 9:30 at the Durham County Courthouse..Beth and I will be there..You can come, too.
Thursday, June 28, 2007
Liestoppers' Betty Tenn Lawrence appeared alongside Duke University Professor of Law James Coleman, NCCU Professor of Law Irving Joyner, Duke University Professor of Law Michael Tigar, and Nifong attorney David Freedman at yesterday's NC Institute for Constitutional Law CLE program entitled, "Prosecutorial Misconduct in Light of the Duke Lacrosse Case." A summary of Ms. Lawrence's presentation follows.