Judge Smith Takes Aim At Nifong

On December 28, 2006, Durham County District Attorney Mike Nifong sent a letter to NC State Bar prosecutor Katherine Jean in response to ethics charges prompted by the December 15 disclosure of the conspiracy to withhold evidence of factual innocence from the Duke Innocents. As part of his initial defense against the charges that would serve as the basis for the Bar's amended complaint, the rogue DA suggested that Judge Osmond Smith’s failure to report his misconduct to the State Bar and unwillingness to discipline him for his misrepresentations to the Court indicated that he had not committed ethics violations.

To approach this allegation from a different angle, let us start from the presumption that this allegation is true. Then my false representation to the Court would have been made at the same hearing where evidence was received, uncontested and under oath, which revealed its falsity. Judge Smith would then have found himself, as the Court having jurisdiction over the matter in question and having direct knowledge through testimony of my alleged professional misconduct, with 1) the authority under RPC Rule 8.3 to impose discipline on me directly (see Comment [2]), or, in the alternative, 2) the responsibility to report such misconduct to the North Carolina State Bar. Assuming that Judge Smith is not the person who filed the instant grievance against me, his failure to take either of these actions would indicate that he believed either 1) that no such misrepresentation had been made, or 2) that any misrepresentation that might have been made failed to raise “a substantial question of [my] honesty, trustworthiness or fitness as a lawyer.” Either conclusion would disprove the allegation that I had violated the Rules of Professional Conduct.

Judge Smith put Nifong’s faulty logic to rest today with a “Memorandum in the Cause” which suggests that the Judge intends to reprimand the DA.

On December 15, 2006, the Court commenced the scheduled pretrial hearing to address all matters requested by the parties for hearing. Included was the commencement of a hearing upon a motion filed by the defendants on December 13, 2006 entitled "MOTION TO COMPEL DISCOVERY: EXPERT D.N.A. ANALYSIS", in which the defendants requested:

(a) Production of certain items set forth in the motion; or

(b) An order directing Dr. Brian W. Meehan of DNA Security, Inc. to submit to questioning under oath regarding matters raised in the defendants' motion; or

(c) An evidentiary hearing on matters raised in the motion; and

(d) Any other order appropriate in the interests of justice.

At the hearing, the State tendered Dr. Meehan for examination by defense counsel without any initial questions by the State. Upon completion of the testimony of Dr. Meehan, the hearing on the defendants' December 13, 2006 discovery motion was recessed, without completion or other resolution, at the defendants' request before going forward.

Significant concerns regarding discovery issues arose from the December 15, 2006 hearing. Since the hearing was recessed without completion as set forth above, these concerns were not addressed by the Court at that time, and due to subsequent developments have not yet been addressed by the Court. Certain of those concerns and the consequences or effects thereof became moot by the State's eventual dismissal of all of the charges herein. Certain other of those concerns remain as they may pertain to actions of counsel.

Further, since the hearing was recessed without completion and without addressing the concerns mentioned above, it would be incorrect to draw any conclusions as to what the Court believed or disbelieved regarding such concerns or as to any opinions of the Court regarding these or any other matters before the Court other than those opinions expressed in open court, by the Court's rulings, and/or by this memorandum.

...

Though the criminal charges in these cases have been dismissed, the Court, nevertheless, retains the jurisdiction and duty to act upon pending or potential...matters related to disciplinary actions involving attorneys before the Court...

In addition to debunking Nifong's false assertion that he approved of the rogue DA's dissembling and accepting the DA's bold challenge to uphold the duties of the Court, Judge Smith subtly implies, by signaling his intention to move against the District Attorney, that Judge Orlando Hudson errantly supported his failure to comply with the statutory directives of NCGS 7A-66 with the false assertion that it would violate Defendant Nifong's right to due process for Hudson to proceed with a parallel proceeding against the DA.

In addition to the action by the State Bar, there is a pending proceeding seeking removal of the District Attorney from office pursuant to NCGS 7A-66; such proceeding has been held in abeyance pending the trial before the Disciplinary Hearing Commission...Nothing stated herein shall be interpreted or construed in any way so as to be considered inconsistent with or in limitation of the authority of The North Carolina State Bar, or the Senior Resident Superior Court Judge of Durham County or his designee under NCGS 7A-66.

Smith's subtle message to Hudson was not lost on the Senior Resident Superior Court Judge of Durham County who announced today that he was prepared to proceed with a hearing on the illegally ignored 7A-66 filing immediately following Nifong's State Bar trial.

Earlier this year, Durham resident and Nifong political opponent Elizabeth Brewer filed two civil complaint calling for Nifong to be removed.

Senior Resident Superior Court Judge Orlando Hudson, however, delayed acting on the complaints until the ethics case is resolved, citing the complaints mirror the ethics charges.

Hudson told WRAL on Tuesday, though, that he is prepared to conduct a summary hearing right after the State Bar trial, meaning that issues decided in the State Bar trial won't need to be redecided.

The petition to remove a district attorney means the residing Superior Court judge can remove Nifong from office if there's evidence he brought the office in to disrepute, among other things. WRAL

Additional coverage of Smith's filing:

WRAL: Lacrosse Judge Could Also Discipline Nifong

N&O: Judge Eyes Nifong's Conduct in Duke Lacrosse case