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 prosecutor 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 prosecutor hasn’t complied with the state’s open-file discovery statute.
But of course granting a motion to continue is at the judge’s discretion, and the prosecutor in North Carolina decides when to set the case for its next setting.
The effect is two fold. First, particularly in felony cases, the prosecutor 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 prosecutor in order to secure a hearing before a judge on, for instance, bond. For people in pre-trial custody, this can mean weeks in jail before a Superior Court judge will review a 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 custody – 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.