Is North Carolina the Only State in Which the Prosecutor Controls the Calendar?

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I was on a panel about criminal case calendaring yesterday at the Courts Commission. While talking to people in preparation for the event, I kept hearing one thing: that North Carolina is the only state in which the prosecutor controls the calendar. After conducting some research, I don’t think that’s quite right.

The prosecutor doesn’t have complete control of the calendar in North Carolina. It’s actually a hybrid system in which the court and the prosecutor share responsibility, with some local variation regarding the degree of control allocated to each actor.

The starting point is G.S. 7A-61, which provides that “[t]he district attorney shall prepare the trial dockets.” At one time, that statute and others were interpreted to give the prosecutor nearly complete control over the calendar, subject only to constitutional guarantees such as the right to a speedy trial. That system was challenged in 1992 when two defendants in Durham County brought a civil suit against the district attorney. One claimed that the district attorney “delayed [his] case for the tactical purposes of keeping him in jail . . . and pressuring him into entering a guilty plea.” The other alleged that his case was calendared for trial many times but was never tried, causing defense counsel to “prepare for trial repeatedly” and resulting in inconvenience and expense. Simeon v. Hardin, 339 N.C. 358 (1994).

The case eventually reached the state supreme court, which rejected the defendants’ claims that the statutory allocation of calendaring responsibility to the district attorney was facially unconstitutional. The court observed that then-existing G.S. 7A-49.3 recognized “the authority of the court in the call of cases for trial,” and concluded that “the ultimate authority over managing the trial calendar is retained in the court,” even though the initial responsibility for preparing the calendar was vested in the prosecutor.

However, the defendants also claimed that the system was “applied in an unconstitutional manner,” in part because the prosecutor placed “a large number of cases on the printed calendar,” knowing that most would not be reached, “thereby providing defendants virtually no notice of which cases are actually going to be called for trial.” The supreme court ruled that the defendants had made a sufficient showing in this regard to require remand for further consideration.

Subsequently, in response to the types of concerns that had animated Simeon, the General Assembly enacted S.L. 1999-428. That bill added G.S. 7A-49.4, which addresses superior court criminal case calendaring. It provides that “[c]riminal cases in superior court shall be calendared by the district attorney . . . according to a criminal case docketing plan developed by the district attorney” after consultation with the bench and bar. Each docketing plan must include certain minimum components. Each plan must provide for administrative settings following indictment, and the district attorney must “announce a proposed trial date” at the final administrative setting, which the judge may veto after hearing from the parties. If “a case has not otherwise been scheduled for trial within 120 days of indictment,” a judge may set a trial date. Each plan must also provide for the publication of the trial calendar at least two weeks in advance of a trial session, with the cases listed in the order in which they are to be tried.

Summing up, we know from Simeon that the “ultimate” control of the calendar rests with the court, and we know from G.S. 7A-49.4 that although the district attorney has substantial responsibility for calendaring, the court also has a role to play. For this reason, I don’t think it’s completely accurate to say that the prosecutor controls the calendar in North Carolina, though clearly the prosecutor plays a major role.

It is also worth noting that some docketing plans give additional control to the court. For example, Mecklenburg County’s provides that the court will assign trial dates after consulting with the Trial Court Administrator, and Cumberland County’s states that “[t]he Presiding Judge shall establish trial dates in conference with both counsel.”

Prosecutors have some influence on the calendar in other jurisdictions. I have not conducted a 50-state survey of calendaring practices, but even a quick look shows that prosecutors retain a role in calendaring in some other states:

  • In South Carolina, the state supreme court ruled complete prosecutor control unconstitutional in State v. Lankford, 735 S.E.2d 471 (S.C. 2012), then issued an administrative order providing that most cases “shall remain under the control of the Solicitor,” subject to certain provisions. Essentially, the prosecutor determines when a case is ready for trial. Once the prosecutor so determines, he or she notifies the court, which then “assumes the responsibility for setting a trial date.”
  • In Georgia, there has also been litigation about the extent to which prosecutors control calendaring, but some prosecutor control remains. In Mulvey v. State, 551 S.E.2d 761 (Ga. Ct. App. 2001), a defendant challenged the “method used for preparing the trial calendar.” The reviewing court noted the history of litigation over prosecutorial control of the calendar and found no problem with a system under which the district attorney “prepare[d] criminal trial calendars” but did so subject to a requirement that they be “reflective of and consistent with the then-pending criminal docket.” This system appears to remain in effect today, as section IV of this standing order

 

So, just as it is not completely accurate to say that in North Carolina the prosecutor controls the calendar, it is not completely accurate to say that prosecutors in other states have no control over the calendar.

A spectrum. Rather than trying to fit every state into one of two boxes – prosecutor control or state control – it may make sense to conceptualize control over calendaring as a spectrum ranging from complete prosecutor control on one end to complete court control at the other. North Carolina appears to be closer to the prosecutor control end of that spectrum than most other states, though local docketing plans vary so much that different parts of the state may be at different points on the spectrum. The national trend over time has been towards greater court control. See Andrew M. Siegel, When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot, 32 Am. J. Crim. L. 325 (2005) (tracing the history of prosecutor control, noting the trend towards court control, particularly in the middle of the 20th century, and arguing that the pre-Lankford system in South Carolina was “the only state in the union that formally reserves to its prosecutors the exclusive authority to set the criminal docket”).

The School of Government takes no position on the important question of how criminal cases should be calendared, i.e., whether North Carolina, or any specific prosecutorial district, is at the right point on the spectrum. (Of course, individual faculty members may have opinions on this issue.) This post merely seeks to provide some context for how criminal cases are calendared, compared to other jurisdictions. Many readers will be familiar with the basic arguments for court control (neutral administration of the calendar reduces the risk of prosecutors using the calendar for tactical purposes) and for prosecutor control (prosecutors are more familiar with the cases than judges are, and judges lack the resources to manage the criminal dockets). There’s much more that could be said on the normative question, but I’ll leave that to others.

18 comments on “Is North Carolina the Only State in Which the Prosecutor Controls the Calendar?

  1. With all due respect, this is the difference between academics and reality. Anyone who has ever sat in any courtroom in Mecklenburg County has no illusions that even with a court calendaring plan and trial court administrators, it is the district attorneys who who really calls the shots with respect to what cases are called for trial and when.

    I don’t know what goes on in other judicial districts, but in the great State of Mecklenburg any powers that supposedly lie with the court are illusory. On rare occassion the court will order a peremptory setting, but that is after our clients have sat in jail for a couple of years. I know of relief being granted only two or three times. For the average case, you are basically playing roulette with respect to it actually being set on for trial, and when it will be called during the week it is actually set. If anyone cares to listen there are several lawyers who would be happy to share their stories.

    • Thanks. Obviously there may be a difference between the law in the books and the practice on the ground. That may be true in other states as well. For example, I saw a case from Mississippi in which the court noted that despite the court theoretically being in control of the calendar, in practice in a particular county, the prosecutor was.

  2. I do agree with Dean that the way the trial calendars operate, the reality of the situation is that the prosecutor is in near complete control. While it is true that the judges have the ability to deny a continuance for a case placed on the trial order, most cases that are continued never see a formal hearing on the State’s motion to continue, or a hearing of any kind. They are just reset by the DA on a future date if they are not reached in the present trial order. Therefore, a judge rarely has the opportunity to even weigh in on the continuance. (This is based on my experience in Mecklenburg.)

    Any discussion on this topic should include a discussion of relative lack of the right to a speedy trial in NC. There is no statutory right to a speedy trial, and the constitutional protection of that right is fairly anemic as interpreted by case law. The combined effect of prosecutorial docket control and lack of speedy trial pressure creates an environment where weaker cases languish on the trial dockets (among other negative results).

  3. I think that we are talking about two different aspects to “calendar control.” The first aspect is actually setting the particular cases on the calendar. There is little room in chapter 7A for anyone other than the district attorney to control which cases are placed on a particular calendar. There is generally no impartial “trial court administrator” in criminal cases in most districts in North Carolina who is responsible for creating calendars in the way that this is done in civil court. I have not seen and am not aware of any situation where a judge has invoked the authority to set a case for trial sua sponte. Indeed, with our superior court judge rotations, no judge is likely to be in a given district long enough to effectively utilize this provision. In that sense, district attorney’s do have almost unfettered control of calendars. Once the calendars are set and are called or placed on a docket, then the provisions of 7A-49.4 may be invoked by a trial judge. While this too rarely happens, it is much more likely that a judge would take notice of a particular case on a calendar over which they are presiding than cases that do not appear on their docket.
    The real unfairness of this system lies in the dual problem of district attorney calendar control and the lack of a meaningful speedy trial act in this state. DA’s can simply choose not to calendar problematic cases unless or until the problematic issues are resolved, and the defendant has little to no meaningful recourse.

    • We did have a Speedy Trial Act in NC. I remember it well. The prosecutorial whizbangs in NC lobbied it into oblivion. And that’s after it got gamed all to hell by prosecutors and their pals on the bench.

  4. I was a District Court Judge in District 22–now 22A–for 14 years. I was a Superior Court Judge in the 6th Division for 10 years. I retired in 2009 and began practicing law. I do represent individuals in district and superior criminal court now. I can PROMISE you that the District Attorneys office in our district control the calendar. I have seen defendants sit in jail awaiting “screening” of a case for up to a year. This is someone “charged” with a felony and unable to make bond. A district attorney is supposed to be “screening” the case to decide if it stays in district court or is indicted. We make motions to modify the bond. We make speedy trial motions. Sometimes our judges will understand that just because someone is charged they are not necessarily guilty and have a right to a HEARING rather than sitting in custody with no due process.

    This needs to be changed!! I haven’t seen a lot of difference in any county I visit now as an attorney or presided in while on the bench–Iredell, Alexander, Davie, Davidson, Rowan, Cabarrus, Stanly, Union, Anson, Richmond, Catawba, Caldwell, Mecklenburg. Superior Court Judges can’t do much of anything until a case is calendared. If it isn’t calendared it isn’t heard!!

    • Ah. So refreshing to hear from an emeritus Superior Court Judge who commiserates with the defendants and their lawyers who have been beaten in the head with the DA’s calendar.

      I am convinced that the 28th District (Buncombe) DA, Moe Ron Moore, received his recent defeat for, among several other abuses, playing shenanigans with the calendar and sometimes gaming the calendar with skulduggery.

  5. Let’s be clear:

    First, in District Court the D.A. calls the calendar and as such has complete control of what cases are called and when.

    In Superior Court the State also “controls” the calendar. In our county if you want to set a motion or some other matter on our Administrative Calendar you have to sign up for time slots at the D.A. Office (I have had mine “erased” by the D.A.). They also decide what cases get put on the “actual” trial calendar; this despite that fact that maybe 2-3 months ago, in open court at Admin. Calendar call they may stand there and give a trial date of “X” for 30 different defendants and the judge normally says something to the affect of “…that matter shall be tentatively set for trial the week of “X”. Then 2 weeks before that date they sit in a meeting and comprise a list of 12-15 case for trial week “X” out of the 30 announced in open court previously – doesn’t the judge “setting” the trial date constitute a court order? When the DA office meets to put together the trial calendar for week “X” they also decide the order of cases to be called; yes, there is a case management plan that I have found is not always followed in setting the order. Next, we normally have 2 judges for each trial calendar and the DA decides what case will be heard in front of which judge as T1.
    About 6 years ago our now retired Senior Resident Judge decided that not enough motions were being heard prior to trial and set up another Admin. Calendar week each month with the hopes that motions could be hear in order to not waste allot of time when the case is called for trial. The DA refuses to “permit” the matter to be heard unless it is dispositive (client plead when he loses). This year they went back to the old method since the DA office was not “permitting” motions to be heard and was wasting the admin. week with short admin. calendars.
    Does that sound like anyone other than the DA has control of the calendar? Yes, if the Defendant files a motion to continue it will be heard; however, 9 out of 10 times it gets heard the Monday morning when the trial calendar is called and the State argues that they have all of their witnesses present and ready.

    David

  6. I just checked the membership of the Court Commission’s Criminal Case Calendaring Panel. There are no defense attorneys on the panel. How can the panel fairly consider this issue without the participation of at least one defense attorney who could inform the panel about the defense perspective on calendaring?

    • I suspect that it would have been a richer conversation if some defense attorneys had been on the panel. There is at least one on the Commission itself. I don’t know how the panel was assembled or what efforts were, or were not, made to include defense attorneys. Representative Stevens, who chairs the Commission, is an attorney, and it sounded as though she had done at least some amount of traffic/criminal defense work in the past. I suspect that she would welcome additional comments on calendaring from any perspective.

  7. Jeff,

    I have been in the courts of a number of different states. I served on the Board of Directors of the National Association of Criminal Defense Attorneys, a nationwide organization with thousands of members in all 50 states, for more than 10 years . I also served on the Criminal Justice Section of the ABA for a number of years. In these capacities, I have spoken with countless attorneys from other states about the calendaring issue in NC, as it is a problem I have experienced personally many times. I have never heard any lawyer from any other state say that they have a similar system in their state. They are uniformly shocked by the system we have in NC.

    I sincerely hope that you have not made up your mind on this issue, although I must admit that your comments to Dean and Ben seem protective of the status quo. The system as it exists is not fair, and is routinely utilized by a number of prosecutors to keep defendants in jail (or taking time off from work to attend court, if they are out), in order to coerce pleas. All of us who practice regularly in the criminal courts know this, and can provide many examples. To fail to have a single active criminal defense lawyer on the panel is inexcusable. If by “richer” you mean “fully informed about the situation that exists,” with that I agree.

    David

    • David, thanks for your comments regarding your conversations with attorneys from other states. As to your suggestion that I have “made up [my] mind” to “protect[] the status quo,” I thought that I was perfectly clear in the original post that I wasn’t taking a position on how case calendaring should work. I do think that any discussion of calendaring should be grounded in as accurate an understanding as possible of both the law (the subject of my post) and the practice (the subject of many helpful comments).

  8. Any inaccuracies aside, the legislature should begin with repealing those statutes and then get busy writing some actual criminal procedure statutes that encompass basic fairness. Regardless of the 100% extent or not of the prosecution’s control of the docket in NC, the idea itself is groundless and results in countless injustices across the state every year. The DA represents the state in a lawsuit against the individual. They are by nature an interested party. There is no modern rhyme or reason that they should have any more say in when a case is put on calendar than the “other” interested party –the presumed innocent defendant. Time for a change!

  9. “In the Little Rascals case, prosecutors used their trial-scheduling authority to let defendants wait for years before proceeding with their cases. They have held the power of the calendar over [Bob] Kelly for a decade without having to account to any other government authority.”

    – From “Little Rascals Day Care case still not over”
    in the Raleigh News & Observer (Jan. 4, 1999)

  10. In practice the state has total control of the calendar in some rural counties I have visited, in which they move cases around at their whim and may not give notice to the defense of the court date. I have visited counties where the same is true and in addition the clerk’s office will not add anything to any calendar by request of the defense.

  11. If the state fails to bring a jailed defendant to trial within ,say 90 or 120 days if not less , their bond should convert to ” unsecured ” and the defendant released pending trial unless the state can prove to a judge that there is a real risk of flight or a danger to the community . Prosecutors never presume innocence despite the growing number of exonerations taking place nationwide . Wanting to pressure someone to plead guilty just to get out of jail or settle the matter is fundamentally wrong . If the state grades their efforts to achieve justice only by the number of convictions they can amass , then we need a whole new system .

  12. I won’t reiterate all of the good comments here challenging these posts. The basic problem is the structure that is created when the prosecutor controls the calendar. Every trial lawyer in the criminal courts – whether prosecutor or defense – knows that prosecutors use the general control of the calendar to judge shop. While judge shopping is not per se unconstitutional if both parties have the opportunity to judge shop, it is unconstitutional if only one side can judge shop. Effectively, one party judge shops in criminal cases in Superior Court.

    The secondary problem is that North Carolina has no speedy trial statute. Prosecutorial control of the calendar (about which there is absolutely no dispute) alone is a problem, but not as devastating problem for the defense (generally conceived) as prosecutorial control coupled with a lack of practical speedy trial rights.

    While there is much to loathe about the federal criminal justice system, I will say it is a breath of fresh air when I appear in federal court knowing that the Government hasn’t picked the judge.

  13. This happens in South Carolina, too. Their Supreme Court a few yeaers ago, when this was brought to their attention via a case, declared it to be a conflict of interest and unconstitutional. But nothing has changed.

    Locak newspapers ran articles about this. One man who couldn’t make bail sat in jail for three years, refusing to plead, insisting on a trial. He was acquitted.

    Bail plus prosecutors’ control of calendars = more wrongful convictions and increases incarcerations, and increases the cost for bigger jails and prisons. Those who get out on probation still have to deal with collateral consequences including attorney’s fees and employnment problems.

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