State Prosecutor Seeking Order for Arrest for Failure to Appear When Defendant is Detained by ICE [2013 Formal Ethics Opinion 6]

View formal ethics opinion in full here

This opinion rules that when a defendant in a criminal case misses court due to being in the custody of the United States Immigration and Customs Enforcement (ICE), it is not an ethics violation for the prosecutor in the case to seek an order for arrest even though the defendant’s failure to appear was not willful.

At issue is Rule 3.8 of the North Carolina Rules of Professional Conduct pertaining to the special responsibilities of a prosecutor.  Among other things, the rule prohibits prosecutors from prosecuting charges that are clearly lacking in probable cause.  Comment 1 to Rule 3.8 emphasizes that “the prosecutor’s duty is to seek justice.”

The reasoning for the opinion is based on two grounds: (1) “the legal requirements for requesting an order of arrest were satisfied”; and (2) “there was a procedural reason for seeking the order of arrest.”

Firstly, an order for arrest is legally permitted pursuant to N.C. Gen. Stat. § 15A-305(b)(2) when “[a] defendant who has been arrested and released from custody pursuant to Article 26 … fails to appear as required.”  Based on the facts given in Inquiry 1 of the opinion, these requirements were satisfied.  The defendant posted bond prior to being taken into custody by ICE.  Later, the defendant failed to appear as required.

Secondly, the opinion notes the procedural reasons for seeking such an order from the court.  In the event that the defendant is later released from ICE custody, then ICE will release the defendant directly to the custody of the State if there is an outstanding order for the defendant’s arrest.  This procedural aspect assists the prosecutor in fulfilling his/her duty to seek justice.

If you wish to respond or otherwise offer a guest contribution discussing this formal ethics opinion, please contact the ethics editor at 

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