Facially Unconstitutional? Prosecutorial Control of North Carolina’s Criminal Calendars

One of the curious facts about North Carolina’s criminal system is that prosecutors have exclusive control of the docket. This means that, in order to appear before a judge on nearly all kinds of significant motions, a defense attorney or the defendant must first get the prosecutor to agree to place the case on a docket.

This is almost unique in the United States. In nearly all other states, a neutral party or the judges themselves – a trial administrator or clerk – makes the decision, after receiving a request from either party, about whether to bring the matter before a judge.

In addition, because North Carolina’s Superior Court judges rotate through counties and through courtrooms, the prosecutor has the ability – often unstated – to decide which courtroom – and which judge – to bring a matter before. This is called forum shopping. Forum shopping in the criminal context is unconstitutional. The landmark case Arizona v. Fulminante established various principles of harmless error – when an error made at trial is not fatal to the result.

The case established, however, that three errors are so grave that they can never be harmless. One of those errors is where the prosecutor has selected the judge.

And yet, because of the way both judges are transitioned through counties and courtrooms in North Carolina, and the power of the prosecutor to call cases when the prosecutor decides to prosecute, it is not too conspiratorial to think that prosecutors select judges to their liking in North Carolina.

The question is whether this combination of structural features makes North Carolina’s criminal justice system in this respect facially unconstitutional.