Twice over the last few weeks, I have been asked to teach public officials about North Carolina’s courts. In my day-to-day work, I spend a lot of time thinking about what our court officials do in particular cases and the law that governs those choices. I less often consider the structure in which they carry out that work. In preparing to talk about that broader topic, I gathered a few thoughts and, more importantly, links to important resources that I thought readers might find of interest.
Tag Archives: district attorney
Advocates of criminal justice reform have called for numerous policy changes in recent years, including raising the age of juvenile jurisdiction, eliminating or reducing reliance on money bail, decreasing monetary penalties for poor defendants, ending license revocations as a sanction for failing to appear for court or pay monies owed, and abandoning mandatory minimum sentencing. Many have also advocated for a re-examination of the role of the prosecutor, suggesting that prosecutors could better channel their power and discretion to lessen racial disparities, reduce recidivism, rehabilitate offenders, and cut rates of incarceration. Two reports published last December focus on this re-envisioned prosecutorial function. The first, 21 Principles for the 21st Century Prosecutor, suggests practical steps that prosecutors can take to reduce incarceration and increase fairness. The second, Prosecutorial Attitudes, Perspectives, and Priorities: Insights from the Inside, explores what prosecutors in four prosecutorial districts think about definitions of success, office priorities, community engagement, and racial disparities.
Jonathan wrote last month about reform-minded sheriffs in North Carolina and the actions they can and cannot take with respect to enforcement of federal immigration laws. Reform-minded prosecutors also have been in the news of late. Prosecutors in St. Louis and Kansas City announced last year their plans not to prosecute marijuana possession cases, subject to certain exceptions. Boston’s newly elected district attorney, Rachel Rollins, campaigned on a promise to decline to prosecute fifteen enumerated charges, including shoplifting, larceny under $250, trespassing, and stand-alone resisting arrest charges, absent exceptional circumstances. Closer to home, new Durham district attorney Satana Deberry has said that she does not want her office to prosecute misdemeanors or low-level felonies that originate in schools. The national discussion about these and other suggested reforms has included debate about the extent of district attorneys’ discretion to determine which cases will be prosecuted in their districts. Just what are the duties of a district attorney in North Carolina? And how much discretion may a district attorney exercise in carrying out those duties?
2019 won’t be the only new number you’ll need to adjust to come January 1. On that date, most of North Carolina’s prosecutorial districts also will have new numbers. Several of them will also have newly elected district attorneys.
North Carolina is divided into 44 prosecutorial districts. Each is headed by an elected district attorney or, the case of a mid-term vacancy, a district attorney appointed by the governor. District attorneys are constitutionally and statutorily charged with prosecuting criminal actions in their districts. Each district attorney employs a number of assistant district attorneys who assist in carrying out this work. A district attorney may even, as Jonathan discussed in this earlier post, employ a private attorney to assist with prosecution.
When a district attorney identifies a conflict of interest associated with his or her prosecution of a case, the district attorney may seek assistance with the prosecution from another prosecutorial district, the Attorney General’s Special Prosecution Division, the Administrative Office of the Courts, or the Conference of District Attorneys.
Sometimes, however, the district attorney decides to proceed with prosecuting a case notwithstanding a defendant’s insistence that a conflict of interest exists. When that occurs, the defendant may ask the court to remove the prosecutor from the case. May the court do so? If so, what standard governs the court’s determination of whether the prosecutor is disqualified from the case?
Two elected district attorneys resigned mid-term yesterday: Colon Willoughby in Wake County (to move into private practice), and Jerry Wilson in Watauga and four other mountain counties (citing medical reasons).
When an elected DA resigns, the governor is empowered to appoint an interim DA until the next election. N.C. Const. art. IV, § 19. Sometimes there is enough time to have an interim DA selected and sworn in so that there is no gap between the resignation of the elected DA and the appointment of the interim DA. But sometimes there isn’t time, and there is a gap. In such instances, the question arises: do assistant DAs have the authority to prosecute criminal cases in the absence of an elected DA?
Although there’s no case on point in North Carolina, the answer is likely yes. The state constitution contains several “hold over” provisions that allow public officials to continue in office until a successor is properly qualified and sworn in. See N.C. Const. art. IV, § 19 (judicial officials); N.C. Const. art. VI, § 10 (“all officers”). Assistant DAs take the same oath as the elected DA and have the duties assigned by the elected DA. G.S. 7A-63. Thus, they are public officers subject to those hold over provisions. The hold over provisions were written for the situation where an official’s term ends but there is a problem that prevents the official’s successor from taking office. That’s not exactly what’s happening with the assistant DAs, since they don’t really have terms and they’re not waiting for a successor. But the purpose behind the hold over provisions is “a sound public policy which is against vacancies in public offices and require[s] that there should always be some one in position to rightfully perform these important official duties for the benefit of the public.” Markham v. Simpson, 175 N.C. 135 (1918). Reading the hold over provisions broadly in keeping with that public policy, assistant DAs likely retain their authority to act while awaiting an interim DA.
This conclusion is consistent with the result reached in several Texas cases raising this very issue. See Bolding v. State, 493 S.W.2d 181 (Tex. Ct. Crim. App. 1973) (holding that the resignation of the elected district attorney during the defendant’s trial did not deprive the assistant district attorneys prosecuting the defendant of the power to do so); LaSalle v. State, 923 S.W.2d 819 (Tex. Ct. App. Amarillo 1996) (citing Bolding and the Texas Constitution’s hold over provision and stating that “in the event of the resignation or death of an occupant of an office, the officer’s previously qualified assistants or employees may continue the operation of the office pending selection of a successor”); Lewis v. Johnson, 2001 WL 169730 (N.D. Tex. Jan. 16, 2001) (unpublished) (citing LaSalle and rejecting defendant’s claim that “due to the death of the criminal district attorney . . . no district attorney was empowered to act on behalf of the State of Texas at the time petitioner was tried”). If there are cases in other states on point, I couldn’t quickly find them.
Having said all that, the time between the resignation of an elected DA and the appointment of an interim DA probably isn’t a good time to make the biggest decisions a DA’s office makes, like whether to proceed capitally against a defendant. But there’s no reason to put the day-to-day business of the courts on hold just because there is a momentary vacancy at the head of the DA’s office.