Last year, I blogged about calendaring practices and whether it is appropriate for an ADA to unilaterally reset a matter in superior court after the court has approved a date for trial. In writing and teaching on calendaring authority, I am surprised how few practitioners are familiar with the landmark case of Simeon v. Hardin, 339 N.C. 358 (1994), which turned 30 years old last year. The case was the culmination of longstanding debates about what constitutes proper exercise of the district attorney’s calendaring authority, and how the court’s “ultimate authority” over the trial calendar interacts with the state’s authority. Id. at 376. See State v. Mitchell, 298 N.C. 549, 554 (1979) (referring to the matter as a “continuing controversy” fifteen years before Simeon). The case still has much to offer in 2025, as the questions it raises about pretrial delay, “orderly” administration of the trial calendar, fair play and notice, and judge shopping remain highly relevant. This series of posts revisits Simeon v. Hardin and considers how it informs the calendaring dilemmas of today.
The Simeon case was animated by complaints of a litany of calendaring authority abuses by the Durham County District Attorney. Rather than challenging these alleged abuses in the context of individual criminal cases, the various defendants chose to organize their concerns into one large class-action case. Thus, the procedural posture of Simeon is unusual in that the case was civil in nature rather than criminal. The criminal defendants turned plaintiffs sought to certify a class whereby a few criminal defendants would represent the interests of all individuals prosecuted by the Durham County District Attorney at the time of filing and into the future. Id. at 370. The plaintiffs asked the court to strike down the statutes governing calendaring as unconstitutional on their face, or in the alternative, rule that the way the Durham DA was applying the statutes in practice was unconstitutional.
The litigation was sprawling in scope, with two named lead plaintiffs and thirty-five exhibits submitted in support, “including affidavits from retired judges, former prosecutors, defense attorneys and other defendants… highlight[ing] these individuals’ negative experiences” with calendaring practices both within Durham County and “in other parts of the state.” Id. at 365. Though the complaint focused on particular problems in Durham County, it was a wholesale broadside against the way criminal cases were calendared throughout the state (for more historical context, see these contemporaneous articles in “Popular Government” here and here). The import of the case is evident from the fact that amicus briefs were submitted to the North Carolina Supreme Court on behalf of the North Carolina Academy of Trial Lawyers, the North Carolina Association of Public Defenders, the National Association of Criminal Defense Lawyers, the North Carolina Bar Association, the North Carolina Conference of District Attorneys, and the ACLU of North Carolina.
On appeal, the Supreme Court declined to hold that the statutes in effect at the time were unconstitutional on their face. However, the Court concluded that there was a genuine issue of material fact as to whether the DA’s office was exercising its calendaring power in an unconstitutional manner. Thus, the as-applied challenge was allowed to proceed. Five years later, the legislature enacted a new calendaring statute, G.S. 7A-49.4, addressing some of the concerns raised in Simeon.
The issues. Though the Simeon complaint addressed a wide array of concerns, the main issues fell into three categories: 1) the DA repeatedly delayed trials for tactical purposes, 2) the DA called cases for trial out of order and without notice to the defense, giving the state an unfair advantage, and 3) the DA engaged in judge shopping.
Repeated delays for tactical advantage. The first major concern of the Simeon plaintiffs was the DA’s practice of repeatedly calendaring matters for trial without actually calling the cases for trial, or alternatively, refusing to arraign cases date after date, leading to lengthy delays. The plaintiffs alleged that the DA intentionally did this for tactical advantage.
In some cases, such as that of named plaintiff David Simeon, the numerous settings and delays led to lengthy pretrial incarceration, creating pressure to accept a guilty plea. Simeon complained that the discovery in his case could have been turned over at a much earlier stage and that the state had no excuse in repeatedly delaying arraignment. Id. at 364. For an out-of-custody plaintiff such as Peter Zegler (the second named class representative), the repeated delays led to inconvenience and expense. On at least one occasion, Zegler paid to fly in and house a key trial witness, but the state declined to call his case for trial after setting the matter on the trial calendar multiple times over a 19-month period. Id.
In considering the plaintiffs’ allegations, the Supreme Court stressed that due process “dictates that there be no punishment of a defendant prior to an adjudication of guilt” and that unreasonable delay in the scheduling of an incarcerated defendant’s trial could amount to punishment in violation of the Fourteenth Amendment. Id. at 377 (citing Bell v. Wolfish, 441 U.S. 520 (1979); City of Billings v. Layzell, 789 P.2d 221 (Mont. 1990)).
At the time Simeon was decided, North Carolina’s former speedy trial statutes, G.S. 15A-701 through -710 had been repealed five years earlier. But the constitutional right to a speedy trial existed as it does today under the Sixth Amendment to the United States Constitution (“the accused shall enjoy the right to a speedy and public trial”), and Article I, Section 18 of the North Carolina Constitution (“right and justice shall be administered without favor, denial, or delay”). The court in Simeon cited to State v. Johnson, 275 N.C. 264, 273 (1969), in stating that the speedy trial clause of the state constitution prohibits “purposeful or oppressive delays and those which the prosecution could have avoided with reasonable effort.” Simeon, 339 N.C. at 378.
Reviewing the notebook of exhibits the plaintiffs provided, as well as the district attorney’s exhibits designed to disprove the allegations, the Court held there was a genuine issue of material fact as to whether the district attorney was exercising its calendaring authority in such a way as to exact pretrial punishment and pressure criminal defendants into pleading guilty. Id. at 378-79. Although the Court did not weigh in on the ultimate merits of the claim (the case came up on review of the trial court’s order of dismissal, which the NCSC treated as a grant of summary judgment given that matters outside the pleadings were considered, Id. at 372), the Court remanded for further proceedings.
Response to concerns of pretrial delay in Simeon. G.S. 7A-49.4, the statute passed by the legislature in 1999 in the aftermath of the Simeon litigation, did not reinstitute a statutory speedy trial provision. However, it addressed the concern of pretrial delay in several ways. The new statute provided for administrative settings and established that the trial court was authorized to set deadlines and supervise the delivery of discovery, filing of motions, and arraignment. In addition, the statute provided for the creation of a local criminal case docketing plan for each judicial district. Perhaps most importantly, the statute set forth a process for the court to set a tentative trial date, as well as a definite trial date where a case has not been scheduled for trial within 120 days of indictment or service of notice of indictment (this process is discussed further here).
Challenging pretrial delay today. Today, defenders can cite to the statute enacted after Simeon to request a discovery deadline and definite trial date in an attempt to move a case along. However, whereas many states have statutes setting explicit time limits for cases to be tried, North Carolina’s statute does not.
The main mechanism for a defendant to challenge delay in the calendaring of a case is invocation of the speedy trial right under the state and federal constitutions. Barker v. Wingo, 407 U.S. 514 (1972), sets forth four factors to be analyzed under a totality of the circumstances test: 1) length of the pretrial delay, 2) reason for the delay, 3) prejudice to the defendant, and 4) defendant’s assertion of the right.
In three decades of speedy trial caselaw since Simeon, successful challenges on speedy trial grounds are rare, but they do exist. Whereas in Simeon, the plaintiffs alleged willful delay on the part of the state, evidence of negligence or mishandling of a case is more common. See, e.g., State v. Washington, 192 N.C. App. 277 (2008) (speedy trial violation found where state negligently failed to submit physical evidence to SBI lab, resulting in prejudicial delay); see also State v. Pippin, 72 N.C. App. 387 (1985) (speedy trial violation found where fourteen-month delay occurred because of mishandling of process of obtaining indictment). (Additional summaries can be found in the Defender Manual, pp. 7-25 to 7-28.)
The defendant is more likely to succeed where the right is asserted early and often. See State v. Sheppard, 225 N.C. App. 655 (2013) (unpublished) (speedy trial violation found where the defendant asserted the right more than ten times and where case was dismissed and refiled in district court due to lack of availability of analyst in a DWI case). In recent cases addressing speedy trial, our appellate courts regularly engage in lengthy and fact-intensive analysis to assign relative weight to the four Barker factors. See, e.g., State v. Farook, 297 N.C. App. 412 (2024); State v. Crisp, 297 N.C. App. 400 (2024). A common theme is that the defendant’s late assertion of the right weighs heavily against him. See Crisp, 297 N.C. App. at 408; State v. Farmer, 376 N.C. 407, 417 (2020). Of course, a defendant may have tactical reasons for refraining from asserting the right, as the state’s case tends to become weaker with time. The defense also may choose to focus on pursuing a negotiated plea rather than push for trial.
Another potential mechanism for defenders to challenge pretrial delay is G.S. 15-10. This is an old statute from 1868 that provides for discharge from custody in certain circumstances. I will discuss this provision in more detail in a future post.
Stay tuned for follow-up posts on Simeon v. Hardin, in which I will address the second and third major issues at the heart of the litigation: orderly calling of cases for trial and judge shopping.