Revisiting Simeon v. Hardin: Part II, Lack of “Order” in the Trial Order

In Part I of this three-part series revisiting Simeon v. Hardin, 339 N.C. 358 (1994), I explored the district attorney’s calendaring practices that were challenged in the landmark case, and I discussed the first of three major issues: pretrial delays for tactical advantage. In this second part, I will explore the second major issue: trial orders that lack “order.” Calling cases out of order. The second major concern raised in the Simeon complaint was the lack of predictability and order in the calling of cases for trial. The plaintiffs asserted that the DA’s unbridled authority over when cases were called left the defense in a position where it was impossible to prepare effectively. Not only did the state have the element of surprise, but the state also had an unfair advantage in that the state could choose to call or not call a case after determining whether the state was prepared and whether the state’s witnesses were available, whereas the defense had no such power. The statute in place at the time Simeon was decided, G.S. 7A-49.3 (repealed in 1999), required the district attorney to file a calendar of cases for a given session with the clerk at least one week in advance. It also provided that the DA should “fix a day for the trial of each case.” G.S. 7A-49.3 (1992). However, the statute also allowed the DA to announce the order of the cases after calling the calendar. Thus, it was conceivably permissible under the statute for the DA [...]