The School of Government has announced that it takes no position on whether one party should have control of the criminal calendar in North Carolina. This comes at the end of a long post by Jeff Welty in which he asserts that North Carolina prosecutors don’t have complete control of the calendar, and North Carolina is not the only state where prosecutors have at least partial control of the calendar.
Suffice to say this: obviously the prosecutor doesn’t have totalitarian control over the calendar. At some point, a case is calendared and at that point a trial judge can grant continuances. So obviously we don’t have a situation in North Carolina where prosecutors control the calendar without any recourse by a particular defense attorney in a particular case to relief in particular circumstances.
When we (or *I*) speak about prosecutor control of the calendar, we’re talking about a general system of control where prosecutors, not judges, decide when a case is ready to be tried. This invites all kinds of abuses in the aggregate, which include stacking the trial line-up in order to judge-shop.
Any trial lawyer in North Carolina criminal courts knows this is true. It is a basic fact about how North Carolina criminal courts operate. And certain prosecutors will actually quite explicitly wait for particular judges to rotate into a county, or particular judges rotate into criminal courts, before scheduling a case for motions or trial.
I’ll have more to say about this, but Welty is engaged in nit-picking that elides the fundamental problem. And the fact that the School of Government “takes no position” on whether this is a fair system says something about the School of Government at UNC.