In Part I of this three-part series revisiting Simeon v. Hardin, 339 N.C. 358 (1994), I explored the district attorney’s calendaring practices that were challenged in the landmark case, and I discussed the first of three major issues: pretrial delays for tactical advantage. In this second part, I will explore the second major issue: trial orders that lack “order.”
Calling cases out of order. The second major concern raised in the Simeon complaint was the lack of predictability and order in the calling of cases for trial. The plaintiffs asserted that the DA’s unbridled authority over when cases were called left the defense in a position where it was impossible to prepare effectively. Not only did the state have the element of surprise, but the state also had an unfair advantage in that the state could choose to call or not call a case after determining whether the state was prepared and whether the state’s witnesses were available, whereas the defense had no such power.
The statute in place at the time Simeon was decided, G.S. 7A-49.3 (repealed in 1999), required the district attorney to file a calendar of cases for a given session with the clerk at least one week in advance. It also provided that the DA should “fix a day for the trial of each case.” G.S. 7A-49.3 (1992). However, the statute also allowed the DA to announce the order of the cases after calling the calendar. Thus, it was conceivably permissible under the statute for the DA to place a large number of cases on the calendar for a given Monday and refrain from announcing the trial order until that same Monday. See Simeon v. Hardin, 339 N.C.at 378. This course of action left defenders complaining they had “virtually no notice” of when their cases would be heard, especially where trial calendars contained dozens and dozens of cases and individual defenders represented several clients on any given calendar. Id.
Further, the plaintiffs in Simeon alleged that the DA placed cases on the trial calendar that they had no intention of trying and that state’s witnesses were not subpoenaed for several matters placed on the calendar. The lengthy pretrial delays discussed in Part I meant that defendants had to show up for court time and time again, at great inconvenience and cost, missing work repeatedly. As defenders would not know whether a given case was actually going to be called for trial until the Monday of the trial session, they would have to scramble to subpoena the necessary defense witnesses on short notice. See Plaintiff-Appellants’ New Brief in Simeon, No. 267PA93.
Changes under G.S. 7A-49.4. In the aftermath of Simeon, with the enactment of G.S. 7A-49.4 in 1999, defenders received some protection from these practices. Under the new statute which is still in place today, the district attorney is required to publish a trial calendar at least 10 working days in advance, and the printed trial calendar must schedule the cases in the order in which the DA “anticipates they will be called.” G.S. 7A-49.4(e). Furthermore, the DA’s office is instructed not to include cases they do not reasonably expect to reach. Id.
Then, after calling the calendar, the DA announces the order of intended trials. As any practitioner will attest, the cases actually called for trial are often not the ones listed first, second, and third on the published order, as some cases are resolved through eleventh-hour pleas and others are continued or dismissed for various reasons. However, the statute does require the DA to publish a trial order, not just a calendar listing cases, approximately two weeks (10 working days) in advance of a session, and deviations from the announced order require approval by the judge if a defendant whose case is called for trial objects. See G.S. 7A-49.4(f). (This language allowing the defense to object to deviations from the announced order was present in the previous statute as well, but the previous statute did not require the DA to formulate an order, published or announced, until the first day of the trial session, so the language did not do much to ensure fair notice.)
Under the new statute, it is still conceivable that a case listed low on a published trial order could be called for trial, as it is possible for cases to be continued, pled, or dismissed for a variety of reasons (a defendant lacks grounds for objection if all cases above his “have been disposed of or delayed with the approval of the presiding judge or by consent,” see G.S. 7A-49.4(f)). However, the statute enacted after Simeon clearly provides for more “order” in the calendaring of cases for trial and provides greater notice to the defense. Where the state jumps over several matters on a published trial order to call a particular case, the defender whose case is called can object and ask that the prosecutor give reasons justifying the deviation. Likewise, where a defendant’s case is skipped over on the trial order and the defendant is eager to have his day in court, the defendant can ask to be heard and request that the prosecutor explain the deviation. Though the statute does not explicitly authorize the defendant whose case is skipped over to object to the deviation, it would seem reasonable for the defendant to do so, and in the alternative, the defendant may assert his speedy trial rights at the appropriate opportunity and emphasize the state’s deviation from the trial order.
Initial setting of trial date. As to the initial setting of a case for a particular trial calendar date, the DA is still given some limited authority in that where the parties do not agree, the DA is instructed to select a proposed trial date. See G.S. 7A-49.4(b). This makes sense in light of the DA’s obligation not to include more cases on a given session than the DA reasonably expects to reach. See G.S. 7A-49.4(e). The DA is also the moving party in a criminal prosecution with the burden of production and persuasion. However, the statute provides that the defense must be given an opportunity to be heard, and the court is the ultimate arbiter in setting this tentative trial date. See 7A-49.4(b)(the court should consider “the interests of justice” in setting the date; see the prior blog on unilateral reset for more on “tentative” and “definite” trial dates).
Timely Publication of the Trial Order- State v. Jones. What happens if the DA fails to publish the trial order ten working days before the trial date as required by statute? This was the main issue raised in State v. Jones, 265 N.C. App. 293 (2019). In Jones, the defendant moved for a continuance prior to his trial on sexual offenses against a child. The basis for the continuance was that the state violated G.S. 7A-49.4(e) by failing to timely publish the trial order. Though the state had timely published a list of cases set for the trial date, the state subsequently produced another document listing the cases in the order the state anticipated calling them for trial, and the Court of Appeals agreed with the defendant that this latter document was the “true trial calendar” and that it had not been published ten working days beforehand. Jones, 265 N.C. App. at 296.
However, the Court of Appeals held that the defendant had not demonstrated prejudice and was thus not entitled to relief. The court distinguished the language in G.S. 7A-49.4(e) from that in G.S. 15A-943, which states the defendant “may not be tried without his consent in the week in which he is arraigned.” Jones, 265 N.C. App. at 297. In State v. Shook, 93 N.C. 315, 319 (1977), the Supreme Court held that the latter language vested a right in the defendant and thus prejudice was presumed. In contrast, the language in G.S. 7A-49.4(e) did not vest such a right and thus the defendant had the burden of demonstrating prejudice. The defendant in Jones had asserted before the trial court that he lacked the opportunity to subpoena important witnesses such as the doctor who conducted a physical examination of the child victim and an investigator who conducted a forensic exam, and that these witnesses would have shown how the victim’s story changed over time. However, the defendant did not make an offer of proof as to the witnesses’ expected testimony and the Court of Appeals held that he did not establish that such testimony would have generated a reasonable possibility of a different outcome. Jones, 265 N.C. App. at 298-99.
The Court of Appeals further explained that the facts of Jones illustrated why a prejudice analysis is appropriate in reviewing alleged violations of the statute requiring publication of the trial order 10 working days prior to trial. The defendant in Jones had notice of his trial date for several months prior, notwithstanding the failure to timely publish the trial order. In contrast, a defendant who has just been arraigned often does not have such notice and must not be tried that week when he does not consent. Id. at 297.
Despite the ultimate holding in Jones that a defendant must establish prejudice from the lack of timely publication of the trial order in order to receive relief on appeal, trial courts may choose to continue trial matters where a violation of G.S. 7A-49.4(e) has occurred in the interest of fairness and to avoid the possibility of error.
Importantly, in determining that the defendant did not have a vested right to a timely published trial order, the Court of Appeals stated that language in the same statute, G.S. 7A-49.4, but a different subsection, did in fact vest rights in the defendant. These appear to be the rights codified in G.S. 7A-49.4(f) that prevent the state from deviating from the trial order without the defendant’s consent or the court’s approval and prevent the state from continuing matters from the trial calendar without the defendant’s consent or a court order for good cause shown. Jones, 265 N.C. App. at 297.
Takeaways. The controversies in Simeon regarding timely notice and the fair and orderly calling of matters for trial remain of interest today. G.S. 7A-49.4, the statute passed in the aftermath of Simeon, contains important protections and should be read carefully (in conjunction with cases interpreting the statute, such as Jones) to understand the nuances surrounding the calendaring, ordering, and calling of cases for trial.
The state must publish a trial order 10 workings days prior to the session, although violations of this statutory requirement are subject to prejudice analysis. Defenders can make objections to hold the state accountable for setting and sticking to a predictable trial order, though the state can seek approval for deviations from the court.
In Part III, I will address the third and final major issue in Simeon: concerns about how calendaring practices may enable judge shopping.
