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Prosecutorial Control of the Calendar – History

North Carolina’s prosecutors – District Attorneys – control the criminal calendar, whereas in most other states, the calendar is controlled by an independent judicially authorized administrator.

While formally each judicial district is supposed to have a docketing plan pursuant to N.C.G.S. 7A-49.4, the docketing plans aren’t always binding.

Through their control of the calendar, prosecutors can effectively decide when and in front of which judges matters are heard. Since judges are not interchangeable, the choice of judge can greatly affect the outcome of a matter.

Through their management of the calendar, prosecutors can decide which judges hear which cases. One would think this practice would be unconstitutional.

However, since prosecutors in nearly all other states don’t have such power, very little case law has been created about this issue because most lawyers in the country don’t practice in such a regime.

While prosecutorial control of the calendar is rare today – confined to a few states – it used to be more common. Eighty years ago it was the case that prosecutors in most states controlled the calendar.

As Andrew Siegel notes in his article on South Carolina’s calendaring system, many states featured prosecutorial control of the calendar in the early 20th century. As the criminal justice system evolved in the 19th century, judges would ride circuit. They would literally ride from judicial district to judicial district. In a given week, for instance, they might be in Raleigh. Or Wilson. Or Pittsboro.

Not only would judges ride circuit, but defense lawyers would ride circuit behind the judges. Consequently, the only people who permanently worked and resided in a single location were prosecutors (and sheriff’s) who would look after the cases and defendants located in a particular location.

Judges therefore relied upon prosecutors to maintain the list of cases that needed to be resolved in a given location so that when judges rode into town, the calendar was easily available.

At the same time, in the 19th century prosecutors were regarded as neutral. Over time, prosecutors, however, became associated with zealous advocacy of the state’s position, as opposed to neutral officials.

Siegel, in his article, notes that even as the criminal justice system took on a more modern shape in the early 20th century, prosecutors clung to their special powers to set the calendar and call the calendar in the order of their choosing.

While nearly all states have abandoned this practice – recognizing the inherent unfairness – North Carolina continues to feature prosecutorial control of the calendar.



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