Tuesday, June 19, 2007

Hudson Does The Right Thing, Finally

After reconsidering the implications of allowing disgraced Durham County District Attorney Mike Nifong to delay his long overdue resignation until next month, Durham County Senior Resident Superior Court Judge Orlando Hudson has decided to suspend Mr. Nifong immediately pending a hearing on Durham resident Beth Brewer’s 7A-66 petition to remove the rogue prosecutor from office.
The county's top judge plans to suspend Durham District Attorney Mike Nifong from office Tuesday and appoint a special prosecutor to push ahead with a case against Nifong, who is soon to be stripped of his license. N&O

Durham Superior Court Judge Orlando Hudson said Monday night that he had signed an order removing District Attorney Mike Nifong from office, effective Tuesday morning, and named a Wake County attorney to handle a case against Nifong. WRAL
Early media reports yesterday indicated that Judge Hudson, oddly citing “paperwork” concerns, indicated that he would not move forward with any action on the petition he had, contrary to North Carolina law which required him to act within thirty days of the February filing, held in abeyance for several months.
“Superior Court Judge Orlando Hudson in Durham has a petition pending before him asking that he remove Nifong from office. Hudson said today that he does not plan to act on the petition. He said Nifong would be gone from office before he had all the necessary paperwork to remove him.” N&O
Later, Judge Hudson appeared to modify his reasoning and was quoted by The Herald-Sun as "being taken out of it" by Nifong's strategic resignation date.
Hudson said Nifong's disbarment will become effective 30 days after being served with a written disbarment order, which probably won't be until late this week.

Since the disbarment date will fall after Nifong's final work day of July 13, Hudson said there no longer is a need for him to hold a removal hearing.

"This takes me out of it," Hudson said. "I'm not seeing a need for a hearing unless he doesn't resign when he said he will." H/S
Finally, Judge Hudson wisely decided to comply with State law and issued an order to suspend the DA effective today, asked Durham County Sheriff Worth Hill to ensure that Nifong comply with his order, and appointed a special prosecutor to present the case for removal of Mr. Nifong from office at a hearing which must take place within ten to thirty days.
Hudson, who has been overseeing a case demanding Nifong's removal from office, said he would file a notice with Durham County Sheriff Worth Hill to enforce his suspension order.

Hudson also said he will appoint Wake County attorney Robert Zaytoun as a special prosecutor for the Nifong removal case.

While Hudson said he and the sheriff cannot keep Nifong from entering the DA's office, the sheriff has the power to limit Nifong's access by -- for example -- banning Nifong from his parking space near the Durham County courthouse and suspending the key card he would need to enter that building during non-office hours. H/S

"I have thought about the situation, and this is the way I wish to proceed," said Hudson, who initially agreed to allow Nifong to work until next month.

As part of the suspension, Hudson said he would order the sheriff on Tuesday to prevent Nifong from carrying out any duties of the district attorney.

A hearing on the removal request must then be held within 30 days. AP

Hudson defended his power to suspend Nifong as clearly justified by Nifong's disbarment Saturday by the State Bar.

"All you need to suspend him is probable cause," Hudson said. "You have much more than probable cause with a clear and cogent finding by the State Bar."

Hudson explained his appointment of a special prosecutor by noting that he, Hudson, has the power to suspend Nifong temporarily without a court hearing, but can make the suspension permanent only with a hearing, in which Zaytoun would be needed. H/S

Hudson’s amended decision followed widespread uproar from elected officials and the public in response to Mr. Nifong’s decision to delay his promised resignation.
Nifong surprised many today when his resignation letter to Easley stated that Nifong would stay in office until July 13.

Durham City Councilman Eugene Brown said Nifong cannot stay in office.

"Our former district attorney needs to go quickly and quietly in to the night," Brown said. N&O

"What is he trying to prove?" Durham City Councilman Eugene Brown said. "This is like rubbing salt into the community's wound. He has resigned and been disbarred. Does he not get it?"

Brown said Gov. Mike Easley and other officials have to press Nifong to leave office "in a couple of days."

Easley said he would immediately remove Nifong if he could.

"You are given a lot of power and you can destroy a reputation in moments with just a few words," said Easley, himself a former prosecutor. "This was much more than a mistake." H/S

"I think he should have left and not gone back, except to clean out the office," he [Easley] said. "I don't think he ought to be in the district attorney's office, having been disbarred. WRAL

"Given what's transpired, it probably would be cleaner for [Nifong] to be using the next few days to clean out his desk," Durham County Commissioners Chairwoman Ellen Reckhow said. "I just don't want to pile on, but preferably a shorter time would be better."

"The sooner Mike moves on with his life, personally and professionally, and the sooner the governor gets an interim appointment in there, the better for all of us," City Councilman Mike Woodard added.

City Councilman Thomas Stith also indicated he would like Nifong to leave office this week.

"It's a disservice to the community for him to continue to hold onto office," said Stith, who added that Nifong should have made his resignation effective immediately. "I don't understand why he'd want to continue to drag this out for another 30 days. It is again making us all suffer for his decisions." H/S

Jackie Brown, Nifong's former campaign manager who parted ways with him over his handling of the lacrosse case, said Monday that Nifong's decision to remain in office four more weeks made those words seem disingenuous.

"To me, he is thumbing his nose at his own statements that he made before the bar," said Brown, a Durham resident who spent the past week in Raleigh attending the bar proceedings. "He's going out on his own terms, on his own time. Last week, I believed he was sincere in what he was saying about resigning to let Durham heal, to let his family heal and just to get this all behind him. ... Then he comes out this morning and it's business at usual." N&O

"That man should not spend one more minute in office," [Beth] Brewer said Monday. N&O

Despite the early indications that Judge Hudson had initially declined to comply with the statutory directives of NCGS 7A-66 in contradiction not only to the law but also to his own statements and previous order, later media reports presented Hudson's decision as if it was not based on the pressure of the outcry but rather based on Nifong's attempt to delay his resignation and fears of the legal repercussions of that decision.
Superior Court Judge Orlando Hudson, chief resident superior court judge in Durham County, came to his decision late today after learning of Nifong's plans to remain in office until July 13. N&O

Hudson initially said he would have preferred that Nifong step down immediately. Criminal defendants and defense lawyers might challenge the district attorney's authority over the next month, creating potential problems, he said.

"There is some concern that a resignation effective at a later date could cause complications as far as legal proceedings go," Hudson said earlier Monday. WRAL

Nifong, who was disbarred Saturday for breaking more than two dozen rules of professional conduct in his handling of the case, said in a letter released Monday that he would leave office July 13. His departure date wasn't soon enough for Hudson, who decided to suspend Nifong from office. AP

“I watched the proceedings just like everybody else did,” Judge Hudson said last night. “I felt that he should resign immediately.” NYT

While Judge Hudson deserves due credit for finally acting on the filed by Beth Brewer in February, it must be noted that, were it not for the foresight, courage, and tenacity of Ms. Brewer, Hudson would not have the power to suspend the disgraced Minister of Injustice without having a 7A-66 petition before him.

Hudson has the power to suspend Nifong because in February, Beth Brewer, a Durham resident, filed a motion seeking to have the career prosecutor removed because of his actions in the Duke University lacrosse case. Brewer worked against Nifong in his November campaign for district attorney. Brewer ran a campaign for County Commissioner Lewis Cheek, who said he was running, but wouldn't accept the job. N&O

In February, Durham resident Elizabeth Brewer had filed a civil complaint asking Hudson to remove Nifong under a section of state law. She claimed Nifong had exhibited willful misconduct and conduct prejudicial to the administration of justice that brings the office into disrepute.

Hudson put off action on Brewer's motion then pending the outcome of the Bar action against Nifong, and he did the same against in April when she renewed her request. WRAL

Admittedly and in the interests of full disclosure, we are biased in our appreciation for Beth's efforts, having had the opportunity to work with her as part of the LieStoppers team while witnessing the transformation from concerned observer to active citizen working fearlessly against the power of the unethical District Attorney starting with her decision to start the Recall Nifong effort in response to Lewis Cheek's decision to not campaign, continuing with her filing of the petition to remove Nifong from office, and culminating with the persistent pursuit of action on her 7A-66 affidavit. Among the many heroes the Hoax has produced, Brewer deserves to be counted. (Now, if we can only convince her to run against Nifong supporter Diane Cattoti for a seat on the city council...)

In closing this post, there are two final notes we'd like to add.

First, a reminder that the North Carolina Institute for Constitutional Law will host a continuing legal education program on Wednesday, June 27 entitled "Prosecutorial Misconduct in Light of the Duke Lacrosse Case." Betty Tenn Lawrence, attorney for Beth Brewer in the filing of the petition to remove Mike Nifong from office, has been added to the panel of speakers alongside Nifong's attorney, David Freedman, and Duke University Professors of Law, James Coleman and Michael Tigar. Ms. Lawrence will discuss the process for removing a rogue District Attorney from office.

Lastly, it must be noted that the Bill for removal of unqualified District Attorneys and Judges received much attention yesterday due to the urgency created by Mike Nifong's attempt to extend his stay in office despite his disbarment and promise to resign. At his press conference yesterday, Governor Easley endorsed the measure and members of the NC House, where the Bill is to be voted on today after passing the Senate unanimously, indicated that the Bill would be pushed through quickly.

Governor Easley says he would remove Durham DA Mike Nifong from office immediately if he could.

Easley says he plans to sign a bill moving through the General Assembly that would give the governor power to remove a district attorney from office.

He says if the bill is signed into law before July 13th -- the day Nifong plans to leave office -- then Easley would use his new power. AP

Easley endorsed a bill in the state legislature that would allow him to replace district attorneys and judges as soon as they are disbarred. The bill is slated for a vote in the House tomorrow, but it will have to be voted on again by the Senate, where it has already passed.

Rep. Deborah Ross said the bill should not take long.

"The governor could get it by the end of the week," said Rep. Deborah Ross, a Raleigh Democrat who is shepherding the bill through the House.

Easley said if he had the power he would replace Nifong immediately.

"I'd do it today if I could," he said. N&O

While the stated motivation for the Bill, the deceptive title, and the equally misleading statements of Governor Easley give the impression that the proposed law would have allowed Easley to remove Nifong from office and protect the citizens of North Carolina from the burden of having disbarred District Attorneys and Judges from staying in office, the poorly constructed Bill does exactly the opposite.

As the Bill, in its third edition, reads now it would have served to disallow Easley from removing Nifong from office immediately, as the Governor falsely suggested, or anytime prior to Nifong's official disbarment which will not take effect until thirty days after the Disciplinary Hearing Committee submits a formal written Order of Disbarment. Officially, Nifong will not be disbarred until well after his intended date of resignation and the Bill would prevent Easley from taking action against him until that time. Further, if Nifong had not waived his right to appeal, the dangerous legislation would have prevented action to remove him likely until his term in office was completed as the Bill allows a disbarred DA (or Judge) to remain in office until all appeals are exhausted. As such, the Bill offers no protection for anyone except a disbarred judicial official contrary to the hype that accompanies its impending enactment.

If time allows this morning, please send an email to all members of the NC House asking that they vote against the Bill and send it back to committee for revision so that it accomplishes what it intends. The third reading (final vote) of the Bill is the first item on the House calendar for today.

Click here to send an email to all members of the North Carolina House of Representatives.

1 comment:

Eric said...

As written, the legislation would even appear to prevent Hudson's suspension of Nifong.

"The officer shall, notwithstanding any such order, continue to exercise the duties of the office pending the litigation, and receive the emoluments thereof."

Thus, until the removal hearing completed, Hudson would be prevented from even suspending Nifong, which certainly can't be something the governor could approve...

It would seem more obvious to do the reverse. If someone's been disbarred, the legislation prevents any removal until the process is all completed, whereas it would be better to suspend the person (not just their salary, as in 410.1) until the process is completed. Thus, the public would be protected.