There’s legal theory, and then there’s legal practice. The two are not the same.
Not too long ago I sat through two classes on criminal procedure – your standard 4th, 5th and 6th amendment class on rights against illegal searches and to an attorney before trial and a class affectionately known as “Bail to Jail” on rights once arrest has been made and trial procedure. I learned about all the rights one gets as a criminal defendant. Heady stuff.
In a previous life, I worked for two think tanks at George Mason where the lessons of New Institutional Economics (NIE) were thick in the air.
Now I practice criminal law in North Carolina’s courts. It turns out that the lessons of NIE – that the rules of the game shape the outcomes – are much more helpful to understanding how criminal procedure actually works than the story about constitutional rights one learns in a law school class on the subject.
Let’s take one example of a rule that affects outcomes in criminal law: who controls the court’s calendar.
In nearly all states, the court’s calendar is set under the auspices of the judiciary, either by the judges themselves, or by clerks who, after consultation with the parties, help arrange settings when motions can be heard, and cases can be tried. Calendar setting is determined by a ostensibly neutral party.
Not so in North Carolina. North Carolina is one of the few states where the prosecutorA District Attorney is the represented of the State, usually elected by the people of a judicial district, to prosecute crimes on behalf of the State. The Wake County District Attorney is Colon Willoughby, Jr.
A District Attorney usually has a staff, including assistant district attorneys who are the actual prosecutors who handle most of the day-to-day caseload. controls the calendar. In practice, the defense can move to continue, especially upon a reason better than “we just aren’t ready,” and particularly if the prosecutorA District Attorney is the represented of the State, usually elected by the people of a judicial district, to prosecute crimes on behalf of the State. The Wake County District Attorney is Colon Willoughby, Jr.
A District Attorney usually has a staff, including assistant district attorneys who are the actual prosecutors who handle most of the day-to-day caseload. hasn’t complied with the state’s open-file discoveryDiscovery is the process of exchanging information between the prosecution or defense in a case. Discovery is also a term used to describe all of the information - police reports, videos, physical evidence, photographs, etc. - that has been given to the Defense in a criminal case. statute.
But of course granting a motion to continueA motion to continue is a request by either party to a judge that a new date be set in the matter. Most criminal matters will have several continuances before both parties are ready to proceed. If the case is marked "Last," the the case must be resolved on the next court setting. is at the judge’s discretion, and the prosecutorA District Attorney is the represented of the State, usually elected by the people of a judicial district, to prosecute crimes on behalf of the State. The Wake County District Attorney is Colon Willoughby, Jr.
A District Attorney usually has a staff, including assistant district attorneys who are the actual prosecutors who handle most of the day-to-day caseload. in North Carolina decides when to set the case for its next setting.
The effect is two fold. First, particularly in felony cases, the prosecutorA District Attorney is the represented of the State, usually elected by the people of a judicial district, to prosecute crimes on behalf of the State. The Wake County District Attorney is Colon Willoughby, Jr.
A District Attorney usually has a staff, including assistant district attorneys who are the actual prosecutors who handle most of the day-to-day caseload. gets to pick not only the time of the next court setting, but the judge who will hear the case.
Second, except when the defendant gets a hearing of right, the defense attorney must work through the prosecutorA District Attorney is the represented of the State, usually elected by the people of a judicial district, to prosecute crimes on behalf of the State. The Wake County District Attorney is Colon Willoughby, Jr.
A District Attorney usually has a staff, including assistant district attorneys who are the actual prosecutors who handle most of the day-to-day caseload. in order to secure a hearing before a judge on, for instance, bond. For people in pre-trial custodyCustody is a general term used describe a condition where an individual does not feel free to leave, as the result of a show of police authority. A person in custody must be read his Miranda rights before being questioned by police. Custody includes arrest, but may be broader than arrest., this can mean weeks in jail before a Superior CourtSuperior Court is the higher of the two levels of trial court in North Carolina. Felonies may be resolved in Superior Court by pleaA plea agreementA plea agreement is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges.
An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt. is usually a negotiated agreement between the defendant (through his lawyer) and the prosecution where the defendant agrees to plead guilty in exchange for some benefit, including, but not limited to, a reduced sentence or a reduction of charges.
An Alford Plea is a guilty plea with all of the benefits and consequences of a guilty plea, but where the defendant does not admit personal guilt., or trial. Misdemeanor convictions may be appealed to Superior Court for juryA jury may be either a grand jury or a petit jury. A grand jury is a jury that determines whether there is probable cause to believe the defendant committed a crime. The result is an indictmentAn indictment is a finding by a grand jury that there is probable cause to believe the defendant committed a crime. An indictment is not a finding of guilt. An indictment, rather, is a method by which a prosecutor moves a case into Superior Court for resolution by plea or trial by jury. that sends the case into Superior Court, perhaps for a jury trial.
A petit jury or simply a jury is the jury of 12 people who have been selected to hear and render a verdict in a case. trial. judge will review a District CourtDistrict Court is the lower of two levels of trial court in North Carolina. Misdemeanors begin (and can be resolved) in District Court. Most felonies also begin in District Court, but only Class H and Class I felonies may be resolved in District Court. judge’s bond determination made at First Appearance.
In addition to these two problems for the defense, the state has no speedy trial statute, which means that there are currently criminal defendants who’ve been waiting two years – some of them in custodyCustody is a general term used describe a condition where an individual does not feel free to leave, as the result of a show of police authority. A person in custody must be read his Miranda rights before being questioned by police. Custody includes arrest, but may be broader than arrest. – for a final disposition of their case.
The result is a favorable playing field for the prosecution. What’s more, it’s not as if North Carolina hasn’t considered designating an independent party to set court calendars. Civil cases in North Carolina’s Superior Courts are not calendared by the Plaintiff. Rather, an independent trial administrator helps coordinate schedules so that neither party has an unfair advantage.
For an academic paper on this topic, see this academic paper from Andrew M. Siegel on South Carolina’s calendaring practice.
Raleigh criminal lawyer Damon Chetson helps individuals charged with crimes - misdemeanors, felonies, and DWI and traffic charges - in Raleigh, Cary, Apex and other communities in Wake County and the Research Triangle of North Carolina. Durham DWI lawyer Damon Chetson also represents people throughout the Research Triangle. We are available day or night, weekdays or weekends. Call (919) 352-9411 day or night.
