By Alexander R. Jones
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Paul Green’s dedication to improving the justice system for all serves as a grass-roots model for others to emulate. It reminds everyone that the justice system can be used to correct itself. | |
ttorney Paul Green has forced the North Carolina court system to begin changing an outmoded and oppressive way of scheduling its trials which has denied countless defendants their rights to due process.
In October 1994, as a staff attorney for North Carolina Prisoner Legal Services, Green filed a class action lawsuit in Durham County challenging the trial scheduling system.
Less than a year later, he stands victorious, having won an out-of-court agreement which toppled the old scheduling procedures. In addition, his litigation, which focused public attention on the problem, sparked a move to enact legislation in the state legislature and secured a North Carolina Supreme Court ruling giving defense attorneys the right to sue other North Carolina counties for similar scheduling abuses.
Green’s dedication to improving the justice system for all serves as a grass-roots model for others to emulate. It reminds everyone that the justice system can be used to correct itself.
At issue in the suit was the right to “due process.” The Fifth Amendment to the United States Constitution guarantees that no person shall “be deprived of life, liberty, or property, without due process of law.” Over the course of two centuries of litigation in American courts, due process has developed into an array of procedures designed to protect the accused from arbitrary governmental actions which could wrongly deprive him of his life, his freedom or his property. A major element in this array is the right to a speedy and fair trial.
In North Carolina, however, unlike any other state in the country, prosecutors have the legal authority to set trial dates. Before Green’s suit, state prosecutors wielded so much unquestioned power to decide when cases would be heard and before which judge that for many defendants, due process did not exist.
“The real story,” Green told Freedom, “is no matter how well-meaning your prosecutor is, having this power puts him in the position of running the courtroom. You cannot run the courtroom and prosecute zealously for one side at the same time. It’s a conflict of interest. Even if you have someone who is trying to be fair, it is still a conflict of interest and still unfair.”
North Carolina prosecutors have used their scheduling authority to purposefully delay trials of jailed defendants to force them to plead guilty to one or more charges. Defendants have also been forced to choose between entering a guilty plea or face the possibility of trial before a judge who has a tough anti-defendant reputation and an inclination for harsh sentencing.
This is not a question of guilt or innocence. This is a question of having a fair trial to determine guilt or innocence.
In one case, Johnny Beck was arrested by North Carolina authorities in the summer of 1992 on suspicion of murder. Beck, who strongly asserts his innocence, remained in jail for 16 months, awaiting trial. Finally, the assistant district attorney handling the case was forced to admit he did not have enough evidence to convict Beck and dismissed the charges.
While Beck was in jail he lost both his job and his marriage and is outraged that the prosecutor kept him in jail for nearly a year and a half while hoping to get enough evidence to take the case to trial.
The Genesis of the Law
Ironically, the legislation giving prosecutors the authority to schedule trials was considered to be a “judicial reform” measure when originally passed in 1949. The law was designed to standardize the scheduling procedures for a state where many jurisdictions had their own special ways to set trial dates.
According to Green, “Prior to 1949 there were a number of local statutes. Durham had a law as of 1921 which gave the clerk of the court the calendaring authority. In the 1930s, a couple of counties passed laws giving the authority to local district attorneys. It was a mish-mash before the 1949 law was passed.
“It was thought that having a written calendar [produced by the prosecutor] would be a great convenience to witnesses and litigants. It never occurred to anybody what a powerful weapon this could be to a party in an adversarial proceeding. It was only after some 30 to 40 years with this statute that we can clearly see the problems it presents.”
The problems actually came into being as a result of the growth of cases handled by the court system. In 1949, a significant number of cases went to trial. However, with the advent of plea bargaining in the 1960s, the percentage of cases going to trial plummeted, and today only three percent go to trial. Green estimates that 80 percent of the cases in North Carolina are now handled by plea bargaining.
Within this relatively new plea bargaining environment, the prosecutors’ calendaring authority has become an unjust weapon.
Securing Reform
Green filed his class action suit in October 1994 on behalf of defendants injured by the scheduling system. The suit focused on one David Simeon, a homeless defendant who had been in jail for seven months, waiting for a trial date. The prosecution had a weak case and, according to Green, left Simeon in jail in hopes of forcing a guilty plea to a charge of rape.
Initially, Green’s suit encountered rough going; the state won a motion to have it dismissed. However, in a crucial victory, the North Carolina Supreme Court agreed with Green that his evidence indicated a problem existed, reversed the decision and remanded the case for trial.
The suit drew support from numerous organizations including the North Carolina Bar Association, the North Carolina Academy of Trial Lawyers, the National Association of Criminal Defense Lawyers, the North Carolina Conference of Public Defenders and the American Civil Liberties Union of North Carolina.
Meanwhile, amid increasing public attention on the case, Ed Grannis, the Cumberland County prosecutor and Judge Coy Brewer, the senior judge for Cumberland County’s Superior Court, initiated fundamental scheduling changes on their own. These changes have become a model for the entire state and, in fact, formed the basis for Green’s settlement with Durham County.
In the Cumberland County reforms, the judge, not the prosecutor, has the authority to set trial dates. Secondly, prior to any trial date being set, three hearings are held. These pre-trial hearings give the opposing attorneys an opportunity to discuss the case, to ensure proper exchange of information between attorneys and give the defendant an opportunity to enter a plea bargain.
At the third pre-trial hearing, the defendant must enter a plea. If he does not plead guilty, the judge, after consulting with both attorneys, sets the date for trial.
The agreement Green secured from the Durham County prosecutor was modeled after the Cumberland County reforms, but in Durham County the prosecutor still sets the trial date. However, it requires the prosecutor to issue a trial calendar three weeks in advance. It further stipulates that the order of the cases on this calendar is the order the cases will be heard on the actual trial date, something which almost never occurred under the old system.
The new guidelines, announced on April 13 by Durham County District Attorney Jim Hardin Sr. and Superior Court Judge Orlando F. Hudson, mandated, for example, that cases of first-degree murder must be resolved within two years, armed robbery within one year, with other felonies falling in between. The reforms will speed up the justice process.
Green called the agreement “a massive improvement, a massive step in the right direction. It doesn’t go as far as I would want it to but we’re dealing here with political possibilities. Also the prosecutor agreed to enough changes that we felt a lot of the old problems would be eliminated.”
So far, this appears to be the case. What is certainly clear is that through his persistent efforts, Paul Green has helped improve constitutional rights for many citizens.
