The filing:
Beth Brewer—again showing the courage of her convictions—has just filed a civil affidavit seeking Mike Nifong’s removal from office. “Recent revelations,” she noted, “show further, much more serious misconduct including statements made by Mr. Nifong in Court in knowing contradiction of the truth. There can be no faith in our justice system with a district attorney who, in a very public case, conspires to withhold exculpatory evidence from the defense and repeatedly makes misrepresentations and false statements to the Court and opposing counsel about the matter.”
The former spokesperson for the Recall Nifong effort utilized NC General Statute §7A-66, in which any resident can file an affidavit 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. Brewer claimed that Nifong has violated:
- §7A-66(2) Willful misconduct in office;
- §7A-66(6) Conduct prejudicial to the administration of justice which brings the office into disrepute.
The specifics:
Brewer lays out five areas of misconduct by Nifong:
1.) Nifong conspired to withhold exculpatory evidence from the defense and repeatedly misrepresented and made false statements to the Court about the matter.
2.) Nifong instructed Durham Police investigators to conduct a photographic identification session that violated their own procedures as well as the recommendations of the North Carolina Actual Innocence Commission.
3.) Nifong failed to pursue and secure exculpatory evidence.
4.) Nifong’s conduct violated the North Carolina State Bar Revised Rules of Professional Conduct and has been generally unprofessional.
5.) Nifong brought his office into disrepute and raised public concern about the whole of
The procedure:
The affidavit goes to Orlando Hudson. Within 30 days, he must: dismiss the charges; act upon them by suspending or removing Nifong from office; or refer them to another judge. If he takes the third option, the referring judge gets another 30 days to review the case, at which point the judge can suspend or remove Nifong.
If either Hudson or the referring judge entertains Brewer’s affidavit, Nifong would be entitled to a hearing between 10 and 30 days later. The hearing would be open to the public. All testimony shall be recorded. The judge would hear all evidence and make all findings of fact and conclusions of law.
Maybe in the course of his proceedings,
[Update, 6.17pm: Nifong declined comment on the filing, but did say to WRAL, ""I'm looking forward to having the [ethics] case heard and having the opportunity to have my side told publicly." Of course, the way in which he told his side publicly is one of the allegations against him from the bar.]
78 comments:
If he is removed some office, does he still receive his full pension through the amount of time he's been in office?
I believe the answer is yes. It was discussed what would happen if he is disbarred.
Either way he will not get the three years that he needs for his full pension.
You go, Beth!
How does this square with the NC Bar's actions? Are those proceedings a prerequisite, or does Beth's affidavit/motion start a parallel effort to remove Nifong?
--Lumpy Gravy
Removal
It's a very public and timeline driven process. The old boys in Durham can not help him. The judges can stall but in the end they must publicly respond.
There is enough documented evidence for a hearing. At that point all procedures are recorded and open to the public. Nifong would have to answer questions that could be used to indict him with lying to the court. It could also be used by the bar, possible the Feds and in civil lawsuits.
Nifong would be crazy to say anything. His best course would be to keep quite and resign.
Thank you, Beth, from a Duke alum across the continent in another city with a corrupt legal system. It's sad that a citizen has to volunteer to do what the professionals of the State Bar should have taken up months ago.
Doesn't this throw a wrench into NC Bar investigation....as far as seeming to pressure them for action? Will they come back with disbar, i.e., while this case is still in public debate? Or will failure of judge to remove influence NC Bar action? Just wondering. I'm only a civilian.
Can not find it mentioned on any news sites. Does the MSM know? ANyone tell AP?
4:07 -
And while the 88, Brodhead and other enablers make the excuse they were misled by a rogue DA, a standup citizen takes action. Hilarious, and sad.
This is not about a pension.
Beth is doing what so many in positions of authority refused to do. Gov. Easley sat silent for 9 months. Judge after judge looked the other way as Nifong lied to them. The Bar waited and waited until they would have looked like ignorant fools and then let Nifong delay. The AG scheduled four months to review a file. Didn't it occur to any of them that the longer they waited, the more embolden Nifong became and the more justice suffered?
This motion took courage, passion, time and energy. Beth is one of the people who are restoring the rights to we the citizens. Way to go Beth!!
What is truly amazing is that a §76A-66 affidavit was not filed earlier. This mechanism was fully vetted on this blog some months ago. I think that it was called the "nuclear option".
Since any Durham citizen may file a §76A-66, why has it taken so long?
Mike in Nevada
This is exciting. The ball is in Hudson's court now.
Did anyone catch that the affidavit cited a Fifth Circuit opinion that used Nifong as an example of a prosecutor running amok? Corruption - Misconduct - thy name is Nifong!! Congratulations Mike, you jerk.
So should Hudson refer this motion to another judge?
Or, will he hold it for 30 days, then pass it along, hoping the whole mess will fade away?
Hudson will stall and then pass it to another judge who will stall and then give Nifong time to respond and then work with the case management system to schedule an aministrative setting and then hear motions on discovery, but not respond to them. By that time, the judge will rotate and a new judge will come in and have to review the file and probably reschedule the case. Then public outcry will reach a point so that the Heral Sun will run an article about Nifong and talk about his 28 years. The AG will schedule the actual case for some time in June so the Bar will have to move their hearing until after the case or cases as the AG calls them. Since the judge on this motion won't want to interfere, he will stay the motion until after the cases are concluded and the Bar has finished. Well, by that time, the civil suits will have begun and the judge will rotate and the whole cycle will begin again. This is Durham, NC afterall.
"Since any Durham citizen may file a §76A-66, why has it taken so long?"
If it was filed before the bar initiated the second complaint it would be dismissed by any (NC) judge without real debate. If that happened they would be less likely to judge future petitions on their merits because if Nifong and Durham voters believed that he had been 'vindicated' once he would claim that any finding against him in a second 'case' would be the result of prejudice on the part of the judge. The voters would buy it - they honestly don't keep up with the chronology of this case.
Nifong is now a target because the bar is after him, all the other DAs in the state are against him (or not supporting him), the Governor is on record as Nifong being his 'worst appointment' ever, and he withheld evidence. The manner in which he withheld it means that it wasn't accidental but a conspiracy.
Anyway the political climate is right for this. The judges are elected and do take the political climate into account particularly if you are using a petition that is never used and isn't directly related to a criminal case.
I think that the timing was a bit off because if the SPs decide to charge then a judge would not want to look at the petition in a favorable way, ie, not favorable to Nifong as it might 'prejudice' a jury pool more than it already has. (pressure to do so...they have a history of going after cases that everyone else realizes to be a joke). In case you haven't picked up on that it isn't my belief they should take such a route but that they likely would given the reality in NC.
Yes I live in NC and yes Nifong is a disgrace. If you wonder WHY the governor reaffirmed in NC what he said in NYC about Nifong it is because he is held in such low regard by the governor and the state DAs. That is, Nifong really annoyed the DAs by making NC's legal system look like a joke (and probably prompting further legal reform which is needed, ie, something after the recent discovery changes). The governor dislikes him because he has probably damaged the state's image, ie, outside of how others view NC's legal system to NC itself and he is ultrasensitive to misconduct charges (he was once a DA who fought against the open discovery laws - in court as well as in public and in private).
Way to go, Beth!! But I'm not happy that it landed in front of Hudson. This whole case has left me so skeptical about the judicial process!
duke2009mom
4:46, you describe "Bleak House."
CGM will be a grandmother before this case ends.
Note: 'Directly related' to a criminal case was meant to mean that a person not party to Nifong prosecution (persecution) filed the complaint. I would consider it directly related if it was something the defence chose to do.
Directly connected to is a better word choice but it's been a long day..
The Nifong story is front page on the N&Os website (newsobserver.com).
There's a note at the bottom of the story to 'check back' as it is updated throughout the afternoon.
Note: The N&O DOES NOT DETAIL WHAT THE PETITION SAYS NIFONG DID.
Nothing about the fact that he conspired to withhold evidence, etc. Zip. Just that the filer is a POITICAL FOE OF NIFONG. Total joke. You might even believe she ran against him in the early version of the story - it isn't made clear enough that she managed a campaign because the N&O doesn't say whose campaign she managed.
So POLITICAL FOE or CAMPAIGN WORKER ITERESTED IN JUSTICE.
How exactly can she be a real 'foe' of his if the entire point was to have the governor appoint someone else, ie, it isn't a classic political foe situation. She just didn't like him much.
Anyway email the N&O so they don't totally mess the story up in the print edition tomorrow. They will regardless but try to get them to detail it and REMOVE THE DECIDEDLY NEGATIVE POLITICAL FOE CHARACTERIZATION.
More like citizen interested in justice with the group Citizens against incompetent and corrupt DAs.
Thought about my earlier thoughts on rewording the N&Os take on 'who she is' and this sounds more appropriate.
Beg to differ. The entire filing with 17 pages of all the horrid details is available on front page of N & O
JLS says...
Given Hudson's recent comments should he recuse himself from this and pass it along?
Would this not be something if it was just this easy?
Charges brought by an "ordinary" citizen, something the Gov., AG and the DOJ were afraid to do. The NC Bar probably would have just given him a slap on the wrist or a few years of purgatory until this whole thing dies down, allowing him to collect his pension. But now Beth has just fired a shot at the NC justice system right between the eyes - lets see if the cowardly pols and crooked judges blink. I too have no faith in the NC justice system, the Governor or the likes of Hudson. But the bottom line is that Beth's affidavit now forces the issue and puts it on a fast track that no pol or crooked judge can avoid. This is a now a no win situation for NC pols. How will they try to deny these straight forward cogent charges by Beth Q. Citizen. No more delaying tactics or beating around the bush - Nifong will have to answer to the most damning of charges and the Justice system and media can't run and hide. This my friends is bloggers paradise.
Orange Lazarus
You go Beth. We are all on your side.
JLS says....
The more I think about this the more I think what a great move. Think about all the people/groups this puts on the spot? Either:
1. The Durham paper
2. The NC NAACP
3. Various Duke Law Professor.
4. Various of the rump 88 gangsters.
support this motion or the next time the a prosecutor is caught doing such things, they have no moral ground to argue to remove such a prosecutor.
A bit off topic, but Amanda Marcotte doesn't seem to be going away.
Edwards Blogger Flap
Discomforts Religious Left
I think we already know which side Hudson is on, he will definitely either dismiss or give to another judge.
The big question is will the case still be under 'reinvestigation' by the staties or will they have dropped all charges and how would that play into things?
I think it definitely ups the ante for the Bar. My Bar Buddy is out of town, will ask him Tuesday. I wish she had filed it on a better news day, Tuesday or Wednesday. Does anyone remember when Mikey's response to the Bar complaint is due? That is an important date. I think it is before the 30 days of this petition. Is the 30 days working or just days?
What Mikey says to the Bar could be used in this petition.
I think we are near the end game.
Mikey resigns within 30 days, should we start a pool. Case dismissed by AG soon there after. It's all Mikey's fault, just like Brodhead said.
Kemp
Inquiring minds need legal advice.
Kemp
I don't think Mike will resign until or unless he believes he will lose the bar case.
Remember, he's a nutty guy, and appears to have thought he could run a bluff on the best lawyers in NC and keep his crimes hidden until either he seated the most racist jury since the Scottsboro case, or found a sympathetic reason for dropping it himself.
Mike Nifong is going to go down fighting.
My vote goes 1) AG drops case 2) bar hearing response filed+gets informal or formal reaction of whether it is believable 3) resigns for "the good of Durham, he doesn't want to be a distraction"
The end.
Hoax Part II: The Civil Suits
Playing everywhere but Durham
Nifong looking forward to ethics hearing
JLS says,
Nifong's resignation is a bargaining chip in the Bar hearing. Thus this is a move is move to take away that bargaining chip.
Nifong will only resign in a global settlement of bar charges. I would guess he will cop a plea to the publicity charges, give up his office and license to have the hiding evidence and other charges not heard and NC not prosecute him.
Nifong is a plea bargain kind of guy. And a plea bargain is his only exit strategy.
The bar can not enter into a bargain on criminal charges. They are not the state.
What an ass he is. He hopes people will withhold judgement until he gets to tell his side of the story????
Funny, how you don't care about the presumption of innocence until it's your own life on the line.
Nifong is a plea bargain kind of guy. And a plea bargain is his only exit strategy.
---------------------------
He's also arrogant, egotistical and doesn't trouble himself too much with boring facts.
I think he will eventually plead to something as well because I don't think a defense of 'I thought they had the DNA results all along' is going to work, EVEN in North Carolina.
I am not sure he will give up his license though.
You might see a formal sanction from the bar, Nifong resign as DA and everyone hopes it ends there.
It's hard to say though, so many people in power have now come out against him, it is possible they will make an example of him, and he will be found guilty by the bar at least for the DNA fraud and they will at least suspect his law license for a couple of years.
Of course, Nifong is going down fighting. I don't like the guy or his ethics, but it's important not to go belly up in life.
He lied in court. His license will be gone for at least 5 years.
He may not even be able to defend himself against the lying in court charges. Any thing he saids could be used by the judge in the case to charge him with comtempt. There will also be civil lawsuits and possible criminal charges down the road.
His best advice would be not to respond to those charges. He already has conflicting public ststements about why he did not turn over the DNA.
Mike Nifong: "innocent people do not hire a lawyer".
I don't see criminal charges happening, not because he didn't break the law but because it is in no vested interest..police, DAs, Durham, AG, governor, bar...that he be criminally tried.
Not a lawyer so can't say about civil trial but my guess is the boys wil sue the City of Durham and name Nifong in the suit but not sue him personally in civil court.
Well, Mr. Nifong has dug himself a hole. There are laws (sort of) to protect the public from his, well, Nifonging. We'll see if they're enforced.
--Lumpy Gravy
Obviously the person who filed this affidavit is someone who tried unsuccessfully to defeat me in the political process," Nifong said. "Now that the voters have chosen someone other than who she wanted, she's trying to remove me from office in this manner."
---------------------
This guy is a real piece of work, he goes on to tout a 21% decrease in caseload...so his problems aren't affecting the efficiency of the office.
He needs to end up in the gutter. He is worse that the accuser, at least she keeps her mouth shut and isn't spouting off all over the media about how great she is.
I know there is time and effort involved on Beth's part...Is there any out of pocket cost??
Trinity60
'"This was filed by a woman who tried to defeat me through the political process," Nifong told WRAL after he had a chance to review the complaint. "Since that wasn't successful, she obviously tried to pursue this through this particular remedy."
'Resident Superior Court Judge Orlando Hudson, who received the complaint, has 30 days to review and act on the request or refer it to another judge.'
Nifong is cocky because he still has confidence the good 'ol boy network, where unfairness and abuse by police/prosecutor/judge is treated as no worse than breaking the speed limit in your car.
Now that sunlight might enlighten the dark corners of Durham, Orlando might not play ball with Nifong. I bet he does and drops the complaint.
Hello Pandora.
Bill A..Just read the article by Paula Zohn - terrible. Although, many lawyers are not successful or even working as lawyers, she obviously is and part of an elite structure. What is this about?
i just sent the link to liestoppers on this story to
http://drudgereport.com/
He hasn't picked up on the story yet?
I'm just starting to understand the Nifong situation better. I don't need to be angry at him. (anger can be like a hot coal, it hurts most the one who is holding it.) I don't need to hate him, because now the wheels of justice are starting to move. I think he should be disbarred, end up in jail for what he did and all his assets go in civil cases.
I'm not a lawyer but i wonder if he can go to jail for abusing power after taking on the role of chief investigator?
i feel compassion for him, imagine living inside his smuck self. To be Nifong is a woeful punishment unto itself.
liberal durham democrat
Name calling vs lying to the court
"I think it can legitimately be a threat to his tenure," said Peg Dorer, the director of the North Carolina Conference of District Attorneys.
Dorer said she believed the statute was last used to remove a sitting district attorney in 1995. In that case, a resident of New Hanover County filed a complaint against District Attorney Jerry Spivey, accusing him of using a racial slur during a dispute at a bar in Wrightsville Beach.
When this affair is over, Beth will have a place of honor. I do hope to be able to meet her!
Great, Nifong may be removed. May it happen soon. But Kemp's description on LS of Brodhead's latest meet-and-greet is sickening; it seems the more focus there is on this dirtbag DA, the more delighted Brodhead is to blame Nifong for his own disgusting actions. He even uses this excuse for the indefensible 88. The line is basically "Hey, Nifong lied to all of us, gosh, what else could we think?" ...and for this, Brodhead apparently got strong applause.
Okay: if that's all they ask of their President, then that's all they deserve.
Well Bill A, I want to meet you too. Particularly at the book signing - I am in Vegas so make sure this is on your PR stops. Bring the boys and your wife, its a great town and much to do. The weather is fabulous and lots to do.
JLS asks....
Can the Judge's stay of the removal motion be appealed? I thought the law required him to act on it within 30 days?
Beth,
You are a great role model for young women. I have forwarded this article to my daughter. I admire everything you have accomplished during the last 10-11 months. Thanks for your dedication - a true hero!
Beth Brewer is asking the court to do what the Governor, the Conference of DAs and the NC Bar Assoc. should have done. It should have been possible to apply enough pressure on Nifong to cause him to resign from office until his hearing before the Bar. Just to think three innocent young men have lost a year of school, suspended pending the outcome of this outrageous case. The predator Nifong is still being paid by the NC taxpayers. There seems to be no justice in this case. Congratulations to Beth Brewer, a courageous woman and outstanding citizen.
7:06 Anonymous said...
Mike Nifong: "innocent people do not hire a lawyer".
I suggest that you re-think that position.
I learned early on from my father that every complex decision I make or every complex situation I am dealing with in life should be placed in front of my attorney/counselor for comment before I make a decision.
You can't afford not to have a good attorney if staying innocent is important to you.
Kemp,
The AP article in the N&O today said that Nifong had to respond to the NC Bar by Feb. 23rd.
Re: Reade, Collin and Dave,
I am not familiar with North Carolina or Durham politics and I am having difficulty understanding how the N.C.G.S. 7A-66 (Removal of the District Attorney) has anything to do with Reade, Collin and Dave and why we should be pleased that this affidavit has been tossed into the legal sausage machine in North Carolina.
After reading the affidavit three times, it seems to me that if you remove the grievance over withholding of exculpatory evidence piece which has nothing to do with the Lacrosse team members, and then forgive the fact that Mr. Nifong suffer from logorrhea, I don't see much that is left to think about except the photograph evidence piece.
What am I missing?
Perhaps I should go back to Friends of Duke Confronts the Group of 88 where I understand more of the issues and can be of more assistance to Reade, Collin and Dave.
Judge issued a STAY ref today's complaint. WTF does this mean?
The AP has picked up the Removal Story and it is running now in the on-line version of our daily newspaper here in Houston, Texas - The Houston Chronicle.
It will run tomorrow morning in the paper I pick up in the rain by the front door ...replete with picture of Nifong.
The tone of the story is looser files complaint against winner.
Google will take you to the story.
Gary Packwood,
This filing is a very important step by Durham Citizen Beth Brewer to reclaim for the voters some of the process of removing Mr. Nifong from office. He has flagrantly abused the public trust, and the most appropriate people to push for his removal are the very people who put him in office, the voters. It is yet another bad development for Mr. Nifong, and while this likely will not change the course of events for Reade, David, and Colin, it is a significant step in restoring some sense of self respect for Durhamites and redeeming Durham (if that can be done) in the eyes of the world.
Observer
Ain't going to happen.
http://www.wral.com/news/local/story/1198676/
10:04pm Gary Packwood:
The Chronicle article - Aaron Beard AP - Opponent wants Duke DA out of office
Should be noted that the paper adds the headline.
Observer 10:22 PM
GPrestonian 10:39 PM
Thank You.
I will read more now.
Thanks for the link GPrestonian. That was helpful.
I don't know how to do that.
WRAL: "Judge Will Stay Latest Complaint Against Nifong"
Hudson just took the nuclear option off the table, taking good care of his own.
One poster suggested Mikey will only get a 5 year bar suspension. I'll take the bet he is permanently disbarred. Sorry Mikey no second chance. The Bar response is due the 23th of Feb. I think we'll have a real feel for the end run then, a Friday again.
I also think Orlando Hudson will recluse himself. It is a no win deal for him. Someone check the donations to his last campaign, see if Mikey gave him money. My bet yes. A Black Judge is not going to throw Mikey out, but if he dismisses the case he becomes the laughing stock of the state, which probably won't bother him.
UNLESS the long Knives are out!! I think they are. Mikey's got to be sacrificed so all can go on. Dem party will be plotting the damage the next 30 days and trying to limit it.
GOOD LUCK MIKEY. Next up, the Feds!
Kemp
I don't think Hudson can stay this complaint.
If so, can Beth appeal the stay?
Kemp
"Durham — A judge said early Friday evening he will issue an order on Monday to stay any action on a Durham resident's attempt to remove former Duke lacrosse prosecutor Mike Nifong from office.
"Senior Resident Superior Court Judge Orlando Hudson said the civil complaint filed Friday by Elizabeth Brewer basically mirrors ethics charges the North Carolina State Bar filed against the Durham County district attorney within the past two months."
Since Orlando Hudson has been in on this scam from the beginning, it does not surprise me to see him trying to cover Nifong's backside. This is a shameful episode, and apparently some powers that be in North Carolina want to continue the shame.
I can only hope Kemp is right on Mikey's fate. Whatever happens, remember that Nifong has been trying to put these young men into prison for 60 years for something that he knows never happened. The only real justice would be for him to go to prison for the rest of his life.
8:24PM,
You got a link to Kemp's latest on Liestoppers?
This is 4:46
I just knew it.
I think Kemp is correct.
If NC does not do justice in this case (clean out the Durham DAs, the poilice, the Judges etc.) the Feds will step in.
No doubt the Feds have started a file, snice one or two Congress critters have asked that the Feds look into this.
JLS says....
re: Kemp
That is what I asked earlier. Can the Judge really stay this and can she appeal?
I thought the state law says the judge must act on this. I would say the law would want a bad DA removed sooner than the Bar could act. I would think that this motion mirrors the NC Bar complaint somewhat is unsurprising. They are legally separate issues that lead to separate results.
If so the Judge or some other Judge does not get to punt this. One of these Judges must either remove Nifong or staund up for the idea of leaving a DA in office who has broken the law.
11:11PM,
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Duke Fever
9:40 Perhaps you should.
I read the removal statute when it was discussed here once before, and I don't recall anything in it that said that a judge had the power to stay a removal petition if there was a Bar action (or any other type of action) pending against the district attorney in question. Seems to me that Orlando is acting outside the law by issuing a stay. If I were Beth, I would appeal Orlando's action to the NC Court of Appeals. If Orlando believes he has some legal authority for issuing the stay, then he should be willing to say where that authority comes from, and let the Court of Appeals decide if he's right or not.
BEST Nifong quote ever, in this morning's N&O.
In reponse to the petition, Nifong claims he looks forward to having his side told publicly (yeah, the State Bar trial against you will be the happiest day of your life -- I bet). Then he says:
"I would really hope that everybody would be willing to WITHHOLD JUDGMENT until that procedure which is already in place had been given an opportunity to work."
Ah, so now Mikey is suddenly in favor of everybody withholding judgment. This, from the punk who told the world there was "no doubt" about the lacrosse rape. LOL!
Yes, Nifong is a hypocrite, among his many other well-documented failings.
The removal statute says that the judge "shall" dismiss the petition, or act on the petition within 30 days, or refer it to another judge within 30 days. There doesn't seem to be any wiggle room that allows granting a stay. Any NC lawyers out there who know why the judge thinks he is authorized to grant a stay?
Orlando is saying that a non state entity (the Bar) should be given prefrence over the state law?
The law is clear he must rule within 30 days or pass it to another Judge. The fact that he referenced the bar would indicate that the petition has merit.
He will have to rule or pass the buck. He can not sit on it more than 30 days.
I do not think this one "good ole boy" trick will take.
I'm sure other judges (the AG, Gov) in the state will pass this message on to him. If the law has no wiggle room he must act on it.
If Mikey has criminal charges filed, then that would put any civil action off until they were completed! Probably a year or two in NC. He would just take the Fifth with any civil matter citing the criminal case as basis.
From WRAL.COM
"[Judge]Hudson told WRAL that his decision to delay action on the complaint constitutes acting on it."
Since when is "delaying" something considered "acting on it"? I thought delaying was puting off action. Sounds like he may have taken a few classes from Prof. Lubiano types.
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