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Criminal Calendaring in North Carolina

Calendaring is the process by which a case is set for a hearing or trial.  Calendaring is crucial to the overall outcome of the case because if one party controls the calendar, that party may be able to speed up or slow down the case to that party’s advantage.  In civil cases in North Carolina, calendaring is done either by agreement of both parties or through an impartial Trial Administrator who determines the dates for hearings, motions, or trial in a matter.

And in nearly every other state in the country, criminal calendars are handled the same way.  An impartial clerk acting under the auspices of the trial judge or the chief judge of the district determines when the case will come to trial.  If one party – for instance, the Defendant – wants to request a hearing either on a motion or for bond reduction, that party makes a request to the clerk.  In other words, neither the prosecutor nor the defendant controls the setting of the calendar.

But in North Carolina, the state assembly since the 1940s has placed control of the criminal calendar in the hands of each country District Attorney.  That means that each District Attorney, by and through his assistants, has the power to determine when the matter will come to court, or when the defendant will have a hearing.  While the defendant may have certain hearings as a matter of right – bond can be heard at the person’s First Appearance or at his Probable Cause hearing as a matter of right – the defendant has no ability to simply request a new hearing on a motion or a bond request at other times without the consent of the District Attorney.

In addition, because the District Attorney is solely in control of the calendar, the District Attorney has the power to determine which judges may sit on a superior court trial.  That’s because the District Attorney may not only set the time for a trial, but the order and courtrooms in which those trials may be heard.  As such, the District Attorney can therefore set trials for particular judges.

This power is of questionable constitutionality.  The United States Supreme Court has repeatedly ruled that unfairness in selection of judges is one of three rights that are fundamental to a fair criminal trial. Where there has been evidence that the judge has been selected through an impartial process, that tainting of the trial process is so severe that it can never been ruled as “harmless error.”

In the early 1990s, litigants did sue in the state courts over the unfairness of this system in a cases called Simeon.  The case was never finally resolved in the courts: rather, the District Attorneys “voluntarily” agreed to draw up and abide by docketing plans.  But in only a few counties – Durham being one of them – has the docketing plan been followed.

In most other counties, the District Attorney retains nearly unfettered power to set the calendar to the detriment (or not) of criminal defendants.



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