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?
Trial courts have limited authority to bar prosecution by a district attorney. The North Carolina Supreme Court in State v. Camacho, 329 N.C. 589 (1991), rejected the notion that a trial court has broad authority to remove a district attorney from his or her prosecutorial role based on a perceived conflict of interest. The defendant in Camacho moved to disqualify the Mecklenburg County District Attorney and his entire staff from the prosecution of the defendant for murder and burglary because an assistant district attorney in the office had formerly worked as a public defender in the office that represented the defendant on the charges during an earlier trial that ended in a mistrial. The assistant district attorney had done some work with other attorneys concerning a motion by the defendant alleging ineffective assistance of counsel. She had not, however, seen any of the defendant’s files while working in the public defender’s office and could not recall the substance of any conversations regarding the defendant’s case. The assistant district attorney had no involvement with the prosecution of Camacho’s case by the district attorney’s office. The trial court nevertheless ordered the district attorney’s office to withdraw from the case to “avoid even the possibility or impression of any conflict of interest,” and also ordered that the district attorney’s office have “no further participation” in the case.
The state supreme court concluded that the trial court exceeded its authority in so ordering. District attorneys are, the court noted, special constitutional officers with duties prescribed by the state constitution and statutes. Accordingly, courts must “make every possible effort to avoid unnecessarily interfering with the District Attorneys in their performance of such duties.” 329 N.C. at 595. This requires that any order that tends to infringe upon the constitutional power and duties of an elected district attorney be drawn as narrowly as possible. The trial court’s order did not meet this standard. By ordering that the Mecklenburg County District Attorney have “no further participation” in the defendant’s case, the trial court unnecessarily restricted a state official from engaging in constitutionally prescribed duties.
A trial court may only disqualify a District Attorney for an actual conflict of interest. In addition to entering an order that was impermissibly broad, the state supreme court in Camacho determined that the trial court erred by ordering the district attorney and his staff to withdraw from the case solely because the prosecution “might create an appearance of a conflict of interest.” The Camacho court held that a trial court may only disqualify a prosecutor for an actual conflict of interest. A conflict of interest exists when a district attorney or member of his or her staff previously represented the defendant with regard to the charges to be prosecuted and, as a result of that former attorney-client relationship, the prosecution obtained information that may be used to the defendant’s detriment at trial. A trial court that finds an actual conflict of interest may disqualify the prosecutor having the conflict from participating in the prosecution of the defendant’s case and order the prosecutor not to reveal information that might be harmful to the defendant. But the trial court had no such authority in Camacho based on its concern that an appearance of impropriety might arise at some future date.
The supreme court subsequently applied its holding in Camacho in State v. Anthony, 354 N.C. 372, 394 (2001), where it determined that the trial court did not err by denying the defendant’s motion to recuse the district attorney’s office from prosecuting him for murder. Two of the public defenders who had initially been assigned to represent the defendant were, at the time of trial, employed by the district attorney’s office. No actual conflict of interest existed, however, as the public defenders had resigned before gaining any confidential information from the defendant and had avoided all contact with the case after changing jobs.
A more recent example. Earlier this month, the court of appeals in State v. Smith, ___ N.C. App. ___, (April 3, 2018), vacated a trial court’s order recusing the District Attorney of the 13th Judicial District and his staff from prosecuting a defendant for sweepstakes-related crimes. The trial court determined that the district attorney and his staff should be recused because business entities associated with the defendant had filed civil actions against the district attorney seeking damages resulting from a sheriff’s raid that led to the criminal charges. The court of appeals determined that the trial court exceeded its authority in entering the order.
Smith court noted that, under Camacho, a prosecutor may be disqualified only when the trial court has found an actual conflict of interest involving prior representation by the prosecutor and the obtaining of confidential information detrimental to the defendant. There was no such evidence in Smith, and the mere filing of a civil suit did not satisfy the Camacho criteria.
Moreover, even if a conflict of interest other than the type defined in Camacho could support an order compelling the disqualification of a prosecutor, the Smith court reasoned that the unilateral filing of a civil suit by a criminal defendant would not suffice.
Finally, the Smith court held that the trial courts order was not drawn as narrowly as possible. It disqualified not only the district attorney, who was named in the suit, but his entire office. The order also applied not only to the named defendant, but to five other unnamed co-defendants.