Criminal Calendaring Authority in North Carolina: A Balance between Prosecutors, Defense Counsel, and the Court

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By: Maren Hardin, Guest Contributor

Editor’s Note: The Campbell Law Observer has partnered with Judge Paul C. Ridgeway, Resident Superior Court Judge of the 10th Judicial District, to provide students from his Law and Public Policy seminar the opportunity to have their research papers published with the CLO.  The following article is one of many guest contributions from Campbell Law students to be published over the summer.

As every lawyer is given the task of being a “zealous advocate,” so, too, is the prosecutor.  A prosecutor’s duties differ in that he or she is “the representative not of an ordinary party to a controversy, but of a sovereignty.”  As such, the aim “in a criminal prosecution is not that it [the sovereignty, via the prosecutor] shall win a case, but that justice shall be done.”  When opining about the duties and ethics of prosecutors, it is necessary to keep in mind that at the core of the prosecutorial function is the duty not only to “refrain from improper methods calculated to produce a wrongful conviction,” but to “use every legitimate means to bring about a just one.”

Using all legitimate, ethical, and legal means to bring about justice includes the discretion of the prosecutor to decide what charges to bring forward, whether to offer and negotiate a plea bargain, and in North Carolina, the power of the District Attorney to exercise control over the criminal calendar.  Cases in the state are initially scheduled in an arbitrary manner by a magistrate or law enforcement officer based on a published schedule of court dates set for the charging officer.  At this initial hearing, and at successive hearings, the District Attorney and Defense Attorney have an equal opportunity to affect the scheduling of later court appearances in the case.

By the mid-200s every state had vested in the judiciary the ultimate authority to manage criminal court calendars, but in reality prosecutors maintained enormous power to set the calendar.

The history of the criminal calendaring authority is difficult to diagram.  As far back as the mid-1700s, the colonies’ court calendaring processes were divided between judges and prosecutors.  Some “public prosecutors” were given the power to call cases, while the majority of the colonies relied on judges to do so.  By the 1800s control over the court calendar had shifted to prosecutors. As court procedures became more formal and caseloads increased dramatically, the prosecutor rather than the court became the “readily available and appropriately qualified” choice to maintain order and organization of the docket. Additionally, as the number of defendants detained pretrial grew, the prosecutor de facto became the entity that could most easily keep track of the defendants to be “produced from custody” for appearances in court.  Finally, the practice of “circuit riding” by judges who were likely to be “over-worked and over-tired outsiders who rode into town a few times a year for short sittings” resulted in a distinct “advantage […] to having an official with knowledge of the local scene ready with a list of cases when a judge arrived.”

A shift from prosecutorial control of the calendar back to judge-controlled calendaring occurred in the early to mid-1900s. The political, social, and scientific reforms of the Progressive Era combined with the “growth of government bureaucracies… to make it more feasible for the judiciary to manage its own caseload.”  The prosecutor was “transform[ed] from [a] neutral judicial functionary to an executive branch advocate, thereby increasing the incongruity of prosecutorial calendar control.”  In addition, the increase in the number of judges and the end of circuit riding increased the viability of judge-controlled criminal case calendaring.

By the 1970s, all the relevant national organizations except the National District Attorneys’ Association (“NDAA”) agreed that criminal calendar control should be in the court’s hands rather than in the hands of the prosecutor.  Instead, the NDAA took the position that the calendaring authority “should be jointly vested in the prosecutor and the court’ and that ‘the prosecutor should determine the order in which cases are to be tried.”  By the mid-200s every state had vested in the judiciary the ultimate authority to manage criminal court calendars, but in reality prosecutors maintained enormous power to set the calendar.

Though these statutes gave the court a role in controlling the calendar, North Carolina’s practices concerning criminal court calendaring have been the subject of intense criticism.

Article IV, § 18 of the North Carolina Constitution sets out broad obligations for the state’s prosecutors and provides that the District Attorney “shall advise the officers of justice in his district, be responsible for the prosecution on behalf of the State of all criminal actions in the Superior Courts of his district, perform such duties related to appeals therefrom as the Attorney General may require, and perform such other duties as the General Assembly may prescribe.”  Accordingly, the District Attorney is given these three specific enumerated powers, and all other duties conferred on the position by statute promulgated by the General Assembly.

Prior to 1999, N.C. Gen. Stat. §§ 7A-49.3 and 7A-61 vested authority with the District Attorney to control the criminal case calendar.[14]  These two statutes gave the District Attorney wide latitude in scheduling cases for trial, calling the calendar and preparing the trial dockets, while the court maintained its power to ultimately manage the schedule.  Although some restrictions existed, such as requiring the prosecutor to file the calendar one week prior to the criminal court session, the District Attorney could unilaterally add a case to the calendar even after the first version had been submitted to the Clerk of Superior Court.

Though these statutes gave the court a role in controlling the calendar, North Carolina’s practices concerning criminal court calendaring have been the subject of intense criticism.  Some of these criticisms included allegations that this calendaring structure forced defense counsel to proceed to trial early and unprepared, that it violated defendants’ speedy trial rights, that it allowed for excessive notice/lack of notice to defendants for sessions, that prosecutorial misconduct was committed due to “judge-shopping” concerns, and that there were separation of powers violations because of the apparent amalgam of judicial and executive branch functions.

In the early 1990s, plaintiffs David Simeon and Peter Zegler filed a lawsuit on behalf of themselves and all similarly situated plaintiffs, alleging that N.C. Gen. Stat. § 7A-49.3 and § 7A-61 violated the state and federal constitutions by giving the District Attorney “excessive power over administration of the criminal courts.”  Specifically, Simeon alleged that the District Attorney of the Fourteeth Judicial District had exercised his authority over the criminal calendar to “delay Simeon’s case for the tactical purposes of keeping him in jail, delaying a trial at which he was likely to be acquitted, and pressuring him into entering a guilty plea.”  Alleging similar misconduct, Zegler asserted that his “case was calendared several times […] but had yet to be called for trial by the District Attorney,” inflicting constitutional harm as the result of his defense attorney being “forced to prepare for trial repeatedly.”

In the aggregate, the suit asserted that the District Attorney used the statutes at issue to advantage the State by using “unbridled discretion to control the progress of criminal cases, including the power to select a particular judge, the power to keep a jailed defendant from being tried for an extended period of time, the power to force criminal defendants released on bail to miss work and come to court repeatedly, and the power to severely inconvenience disfavored defense attorneys.”  The North Carolina Supreme Court reviewed the plaintiffs’ assignments of error on zn appeal regarding a dismissal of the action in Superior Court.  The Court declined to find whether the statutes’ application in Durham was constitutional, but definitively determined that the challenged statutes were constitutional on their face.

The application of N.C. Gen. Stat. § 7A-49.3 and § 7A-61 in the Fourteenth Judicial District was not litigated after the Simeon decision, because District Attorneys across the state began implementing their own case scheduling plans between 1994 and 1999.  By 1999, the General Assembly had repealed N.C. Gen. Stat. § 7A-49.3 and enacted § 7A-49.4, the current criminal calendaring statute in effect.  Additionally, § 7A-61 was rewritten to include that the District Attorney shall “prosecute in a timely manner in the name of the State” all cases resolved in the Superior Courts.

While the local plans are mandatory and contain certain requirements, they can include additional deadlines and requirements for that district.

The biggest change N.C. Gen. Stat. § 7A-49.4 made to criminal court calendaring involved the requirement of each District Attorney to put in place a local plan to guide the calendaring of cases in each prosecutorial district.  The plan is created initially with the input of local judges and members of the local defense bar.  While the local plans are mandatory and contain certain requirements, they can include additional deadlines and requirements for that district.  The statute and the baseline plans are composed of three distinct parts, including “administrative settings, issuance of trial calendars, and calling of cases for trial.”

Pursuant to N.C. Gen. Stat. § 7A-49.4(b), at a minimum each local plan must include at least one administrative setting to be calendared either within sixty days of indictment or its equivalent, or at the next Superior Court session if after sixty days of indictment of its equivalent.  At these administrative settings, the court shall address issues including the defendant’s representation, the provision of discovery, pretrial motions, plea arrangements, scheduling additional administrative settings if necessary.  In any event, “[i]f the parties have not otherwise agreed upon a trial date, then upon conclusion of the final administrative setting, the District Attorney shall announce a proposed trial date.”  This proposed date will be adopted as the tentative trial date “unless, after providing the parties an opportunity to be heard, the court determines that the interests of justice require the setting of a different date.”  Notably, “the trial shall occur no sooner than 30 days after the final administrative setting, except by agreement of the State and the defendant.”  Under N.C. Gen. Stat. § 7A-49.4(c), if a trial date has not been previously set within 120 days post-indictment, then the defendant may move to ask the judge to hold a hearing in order to schedule a date.

Pursuant to N.C. Gen. Stat. § 7A-49.4(e), the District Attorney must publish the trial calendar at least 10 days prior to the date of the trial.  Also, the District Attorney will only list cases on the calendar that can reasonably be expected to be called, and listed in the order the case will be called.

Under subsection (f) of the statute, the District Attorney is still allowed to first “determin[e] cases for plea and other disposition, [and then] announce to the court the order in which the District Attorney intends to call for trial the other cases remaining on the calendar.” The District Attorney may alter the order unless defense counsel objects and the trial judge does not grant approval.  Continuances can only be made by the judge, or by consent of the State and defense counsel, for good cause.

The current calendaring convention is the result of negotiations and practical considerations developed over nearly twenty years and is viewed as an acceptable compromise between the interests of State, defense counsel, and the courts.

N.C. Gen. Stat. § 7A-49.4 is intentionally flexible, in order to accommodate the needs of North Carolina’s various judicial districts.  For example, counties like Durham, Wake, and Mecklenburg have different levels of resources than are available to small, rural counties like Chowan, Bertie, and Caswell.  Similarly, the sheer volume of cases and defendants varies from county to county, so the needs of each are appropriately varied.

An intangible category requiring flexibility of North Carolina’s calendaring statute is the inevitable contrast in individual personalities and interactions between judges, defense attorneys, and prosecutors.  Practically, some judges are comfortable managing the calendar because of previous experience as a prosecutor in North Carolina or familiarity with the process, while others are content to allow the prosecutor to proceed and take an active role if a dispute arises. Ultimately, N.C. Gen. Stat. § 7A-49.4 is a management tool designed to promote and maximize efficiency in the North Carolina judicial system, which is a constant area of criticism and concern.  The current calendaring convention is the result of negotiations and practical considerations developed over nearly twenty years and is viewed as an acceptable compromise between the interests of State, defense counsel, and the courts.

Maren Hardin is a rising 3L at Campbell Law. Maren can be reached by email at mm**********@em***.edu.