Premier Criminal Defense for the 4th District
At Silva, Kiernan & Associates, PLLC, we work hard to put our experience as Former Superior Court Prosecutors toward your successful defense. Every attorney at our firm has worked for the Office of the District Attorney for the Fourth Prosecutorial District (Onslow, Duplin, Jones and Sampson Counties). What that means to you is that we understand how the State is going to come after you if you have been charged with a crime. We know how to quickly assess a case, how to effectively utilize legal resources, and how to pursue promising outcomes. Because we have been on both sides of the fence, as Former Prosecutors in the highest trial level court in North Carolina and as current Advocates, we offer a unique perspective in the defense of criminal charges. The Partners of the Firm have handled a broad range of criminal charges as prosecutors and defense attorneys. We have handled everything from First Degree Murder to a simple seat-belt violation. Let us offer you our experience and advocacy.
If you have been charged with a misdemeanor or a felony, you need an advocate on your side. You need an attorney that has the experience and knowledge to handle your case effectively. To that end, we are there for you. We will work to provide you with superior legal representation and to treat you with the professional courtesy you deserve.
Former Prosecutors - Experienced Advocates
While most people realize they need a criminal defense attorney when they are contesting a charge, people often think they do not need a lawyer when they intend to plead guilty. However, no matter how friendly and professional a prosecutor may be, a prosecutor can never substitute the effectiveness of a good criminal defense attorney.
- First, prosecutors’ interest directly oppose the interests of those charged with crimes. Prosecutors must resolve many cases every day, so their interests are to get you to plead guilty as quick as possible rather than ensure you make the best decision. A criminal defense attorney will evaluate the case, consider the evidence against you, and work to achieve the best possible outcome for you.
- Secondly, prosecutors cannot offer you legal advice since they represent the State – a party that generally seeks to convict those charged with criminal offenses. In other words, if the State believes you have run afoul of the law, the prosecutor’s job is to ensure “justice” has been served. This typically means the prosecutor is tasked with securing a guilty plea.
- Third, because of the prosecutors heavy workload, they do not have the time or ability to explore the specific facts of your situation and may not even let you explain your side of the story. In fact, anything you tell a prosecutor can be used against you at trial. For example, if you told the prosecutor you were speeding because there was a family emergency, they would use your admission to speeding during your trial. This is not something that would occur with a defense attorney because we have the obligation to protect your rights, not exploit your statements.
- Fourth, because a prosecutor must resolve as many cases as possible in a minimal amount of time, they may not ask you questions to determine whether you qualify for alternatives to pleading guilty, such as criminal deferral programs. Further, there are times when you don’t qualify for a deferral program. Nevertheless, a good defense attorney may be able to legally pave a way for you to enter a deferral by investigating your case and negotiating with the prosecutor on a legal level.
- Fifth, and probably most importantly, prosecutors may not offer you the same plea deal they would offer us because they know you will not be able to independently assess the strength of your defense. Prosecutors are also highly skilled criminal trial attorneys and know that they have the upper hand in the legal arena over individuals who do not have the same or greater level of experience.
You may be wondering how we know these facts. The answer is that every attorney at Silva, Kiernan & Associates, PLLC has worked in the Office of the District Attorney for the Fourth District. Mr. Silva and Mr. Kiernan were Superior Court Prosecutors, District Court Prosecutors, and handled thousands of cases on behalf of the State. We know how the State is going to come after you, and more importantly, we know how to prepare a defense. We have argued in front of judges and juries. We are licensed to practice criminal law in North Carolina, the North Carolina Supreme Court, the Court of Appeals, and the Federal District Court.
The Constitution of the United States, as well as the Constitution of North Carolina, provides you with the protection of being presumed innocent and forces the State to prove your guilt beyond a reasonable doubt. Reasonable doubt is not a vain or fanciful doubt, but a doubt based on reason and common sense arising out of all the evidence, some of the evidence, or the lack of evidence as the case may be. In order to be convicted of a crime, a judge or jury must be fully convinced or entirely satisfied of your guilt. That is where we come in.
As you read these words, you may already believe you are guilty. To that end, there is a fundamental difference between innocence and guilt. Just because you think you have done something wrong doesn’t mean that you have committed a crime. Everyday people do things that other people would label as wrong or immoral. The law, however, specifically details what must be accomplished to commit a crime. Simply taking the property of another doesn’t mean you stole something (larceny). Having drugs on your person or in your car or house doesn’t automatically mean you are guilty of a criminal offense. Hitting someone with or without a weapon doesn’t mean you have committed an assault. The list goes on and on, but the point is, you need a law firm that understands criminal law and the elements of every crime.
On the other end of the spectrum, and a situation that comes up more commonly than the general public realizes, you may have done nothing wrong but, nevertheless, you have been wrongly charged with criminal offenses. You may be a victim of identity theft. You may just be someone that was at the wrong place at the wrong time. Maybe someone has a grudge against you and made false accusations. Whatever the case may be, we are here for you and we will fight to prove your innocence.
Our job is to protect your rights, force the State to prove their case, and secure the best possible outcome for your situation. We achieve these goals by seeking to know everything possible about a particular case. We routinely subpoena information from charging agencies and potential witnesses. We communicate with law enforcement in order to determine what we can expect at trial. We read the law and we research legal issues. We treat you with the respect you deserve and strive to instill a sense of security in an otherwise uncertain time. From the start of every case, we seek the ultimate goal of an acquittal by utilizing our experience prosecuting cases for the State. In short, we believe in our Constitution and we believe in you.
There are two general categories of criminal charges and each type can have a dramatic effect on your life, livelihood, freedom, and your reputation among friends, family and the community. You may find yourself charged with misdemeanor crimes, felony crimes, or a combination of both. As former prosecutors, we have handled thousands of charges in both categories and would like to provide you with a brief outline of what you can expect.
Most people do not realize how easy it is to be charged with a misdemeanor. On the one hand, a law enforcement officer can allege that he/she saw the commission of a misdemeanor or found sufficient evidence to support the conclusion that a particular individual committed a misdemeanor offense. Though this scenario may be common knowledge, there is a far more dangerous and precarious situation that takes place far too often.
In North Carolina, any person can allege another has committed a crime. Law enforcement does not have to be involved and there really does not need to be any corroborating evidence to support that allegation. All that is required to have someone charged with a misdemeanor crime is for a person to step into the Magistrate’s Office and swear that another committed a crime. That is all it takes. If you are the victim of a false allegation, and you were charged by the magistrate, you could find yourself arrested and standing in front of a magistrate waiting to find out how much you will have to pay in order to get out of jail (bail/bond)! We see this scenario most frequently with disenchanted former spouses or partners, angry neighbors, or simply people who have a grudge against another.
If you have been charged with a misdemeanor crime, either by law enforcement or by an individual, you are going to receive a bond. A bond is also inaccurately referred to as bail. There are a number of different types of bonds that range from unsecured (you can sign yourself out of jail) to currency bonds (you must post 100% of the bond amount to get out of jail). Realize, of course, at this point you are considered innocent and in fact, you may be innocent. Nevertheless, you may end up in jail or have to pay a lot of money to get out of jail.
In some situations, a person is “fortunate” enough to receive a phone call from the Sheriff’s Department explaining that there is a warrant for that person’s arrest. The term “fortunate” is used because you will be afforded the opportunity to turn yourself in rather than get arrested. This also provides you with a small opportunity to hire a lawyer prior to being processed at the Magistrate’s Office.
If you get the opportunity to turn yourself in, you should immediately contact us. If we can get involved prior to your arrest or processing by the magistrate, we can help ensure that you receive the lowest bond possible. We will also coordinate with a bondsman to make the transaction as seamless as possible. At this stage in the process, your innocence is not part of the magistrate’s concern. However, our top priority is to make sure you don’t spend unnecessary time behind bars waiting for your court date.
Whether you post your bond or remain behind bars, your first court date is not likely the date your case will be resolved. This is because each side typically gets at least one continuance. In other words, even if we are prepared to go to trial at your first court date, the State may not be ready to proceed. As such, the State will make a motion to continue and it will likely be granted by a judge. If it is of dire importance that your matter is resolved on your first court date, make sure to relay this information us. Though we typically prefer a large amount of time to prepare for your defense, there are methods we utilize to help insure the State’s motion to continue will be denied.
When both sides are ready to proceed, the State will generally offer a “plea deal.” A plea deal can range from a dismissal of the charges, a reduction in the severity of the charge, to an agreement as to the terms and conditions upon a conviction. We will inform you of the State’s plea deal, advise you as to the wisdom of agreeing to the State’s plea deal, and counsel you on how we believe you should proceed. Should you decline the State’s plea deal, we will zealously defend your innocence through what is known as a trial.
In misdemeanor cases, if you reject the State’s plea deal, you will embark on what is known as a trial. A trial is when you force the State to attempt to prove you are guilty of the alleged crime beyond a reasonable doubt. The State will be required to call witnesses to the stand, before a judge, and to present evidence of your guilt. You are not required to do anything, but we will help you by developing a custom defense to the allegations in order to increase the probability of an acquittal.
If there is a silver lining to being charged with a misdemeanor, it is the fact that the Constitution protects your right to a trial by a jury of your peers. In other words, if you are convicted by a judge in District Court of having committed a misdemeanor, you can appeal to the Superior Court for a new trial. Any punishment entered by the district court judge will be set aside and your case will start all over . . . but this time, you will have the protection of having 12 people make a unanimous decision as to your innocence. As former prosecutors, we are familiar with the appeals process to Superior Court and we are happy to handle your appeal . . . even if an attorney from another firm handled your original district court case!
We understand the impact a conviction can have on your life and we want to ensure you receive the best possible resolution to your case. As such, we routinely handle misdemeanor appeals. Undoubtedly, many people have doubts as to whether it is worth the extra effort and money – and to that end, we will be happy to provide a free consultation to discuss the benefit of an appeal. In most situations, we usually recommend appealing any conviction for a variety of reasons.
For example, it is our opinion that it is more difficult for the State to prevail in most misdemeanor appeals because of the simple fact that a jury makes the decision as opposed to a single judge. Imagine the scenario whereby someone accuses you of assault, larceny, trespassing, etc. There is no other evidence beyond their word. Their word may have convinced a judge, but now they are going to have to convince 12 people that their accusations are true beyond a reasonable doubt. That means 12 people have to be fully convinced or entirely satisfied that you committed the alleged crime. We submit that this is 12 times the original burden of district court.
Of course, there are other reasons to appeal. Perhaps the judge that entered the finding of guilt imposed a particularly harsh sentence. Appealing will provide you with the opportunity to negotiate a lesser sentence. Perhaps a superior court prosecutor is more likely to reduce the charge or even dismiss the charge. These are potential possibilities that we are happy to discuss with you during a free consultation.
As you might expect, the felony process is far more complicated than a misdemeanor charge. The following is meant to be a lantern upon the path and not a map of the journey. Each case is unique and each case can take very different turns depending on our strategy or the strategy of the District Attorney. We have written this segment so that you can find some sort of relief in knowing where you are in the process and what should be around the corner. Not all cases will adhere to this process.
On one end of the spectrum, very serious cases might be dismissed early in the process for what appears to be an ambiguous or trivial reason. On the other end, a relatively minor charge could be prosecuted to the fullest extent of the law and the prosecutor could ask the judge for the maximum possible punishment.
From an outside or public prosepective these extremes typically do not seem fair or consistent with the canons of equal and exact justice. The reality is that each case, each charge for that matter, involves very specific facts, different errors committed in evidence gathering, and different people.
To better explain these extremes, consider the following examples.
- Example 1: a suspect is arrested and charged with a B1 felony (punishment is 300 months to life). The case against the suspect is strong and the prosecutor intends on seeking the maximum possible punishment. To the astonishment of the general public, the prosecutor dismisses the case and, in turn, the suspect is released from jail.
- Example 2: a suspect steals $20.00 from an individual. The suspect is prosecuted through a jury trial and is sentenced to 15 years in prison. Bloggers complain that the sentence is ridiculous and point out more egregious crimes where the perpetrator received probation.
We used these two examples because they are real situations where one of our partners was the prosecutor in charge of these cases. In the first example, our partner believed he had a slam-dunk case against the defendant. The victim was able to describe unique marks on the parts of the defendant’s body that were only visible up-close and without clothing. However, the victim and her family were terrified to testify. In fact, the family stated that they would not participate in a trial.
After months of speaking with the family, their phone numbers no longer worked and they had moved. Without the testimony of the victim, there was no case. Further, even if our partner could have found the family, it would be pointless to put someone on the stand who would not testify. The simple truth is that the victim would be traumatized and the State would be unable to prove its case. In addition, our partner believed the victim would testify that nothing had happened in order to get off of the witness stand.
In the second example, our partner had watched the defendant commit crimes for years with impunity. Every time he had been charged with a crime, some critical piece of evidence was missing or suppressed by the court. Time after time, prosecutors had to offer this defendant a slap on the wrist and explain to upset victims why the case would not go to trial.
Finally, our partner had a strong case against the defendant. The defendant had admitted to law enforcement that the stole $20.00 by snatching the money away from the victim’s hand. This admission changed the charge from a misdemeanor to the class H felony known as Larceny from a Person. In addition, the defendant had previously been convicted of the requisite number of felonies to be charged as a Habitual Felon. This status enhanced the sentencing from a class H punishment to a class C punishment (as a class H he was looking at about a year in jail, but as a class C he was looking at nearly 15 years). He was sentenced to the 15 years, not because of the facts of the case, but because his prior criminal record had caught up to him.
These examples are illustrated because we routinely hear clients state that they are being treated differently than someone else. The reality is that even if the charges are the same, each person is treated differently because the facts of every case are different. Knowing that your case is different than everyone else charged with similar crimes is key to understanding the necessity of a unique defense. This is where we come in!
Before anyone is charged with a felony, law enforcement is required to investigate the case and gather evidence. If you are being investigated by law enforcement, now is the time to hire us. Hiring us at an early stage of the process can save you thousands of dollars, may prevent law enforcement from charging you with a crime, may help ensure a low bond if you are charged with a crime, and may even prevent you from being placed in jail.
Many people do not think they need an attorney at this stage because they do not believe they have done anything wrong. While that may be true, you do not know what the evidence against you might be. Perhaps some disgruntled ex has decided to set you up. Perhaps you were on a brisk walk, inadvertently dropped your wallet in close proximity to a recent crime scene, and the person who found your wallet believes you were fleeing from the scene.
The point is that law enforcement is going to want to talk to you and you need to know how to handle the situation in the best way possible. In some cases you do not want to talk to law enforcement and in others you may find that it is in your best interest to speak with law enforcement while we are present. If you have an attorney by your side, he/she can tell you when to answer and when to stay quiet. He/she can also gather information that will be necessary for a future defense.
No matter what happens, law enforcement is going to investigate the case until they are satisfied that either you committed the crime or that it was committed by someone else. That means that you are going to be investigated until they can find someone else that is more likely the culprit. If they don’t find someone else, you are likely to be charged.
In order to be charged, the officer will have to detail the evidence against you to a magistrate. If the magistrate believes the officer (which they almost always do) and the magistrate believes a crime was committed, the magistrate will allow the officer to swear out a felony warrant.
When the officer has received a felony warrant from the magistrate, you will be entered into a law enforcement data network. That means everyone in law enforcement will know to arrest you on sight. Moreover, a warrant squad will be assembled and sent out to find you.
A warrant squad is a group of law enforcement officers that have been duly sworn and commissioned with the primary responsibility of executing arrest warrants. In some situations, law enforcement agencies will work together on a warrant squad. If the charge is serious enough, you can guarantee law enforcement is going to be highly aggressive and you will be put in a very dangerous situation (guns drawn, tasers and mace out).
Believe it or not, all of this may be avoidable if you hire an attorney. If you hire us, we can work with law enforcement to allow you to turn yourself in. We can also be present to ensure your safety, protect your constitutional rights, and seek a low or unsecured bond. You will also benefit from avoiding an embarrassing arrest in a public forum such as church, a wedding, or the supermarket.
At the Magistrate's Office
When you turn yourself in, or you are arrested, you will be taken to the Magistrate’s Office. The magistrate will inform you of your charges and set your bond. If we are present, we can negotiate with the magistrate for a low or unsecured bond. The type of bond and, obviously, the amount of the bond will have a direct impact on whether you spend your time in pre-trial confinement (jail) or in the comfort of your own home.
Felony First Appearance
After being charged with a felony, you will have to appear in District Court for what is known as a first appearance. Your first appearance is a very anticlimactic hearing in which your attorney situation is addressed (whether you will be appointed an attorney, whether you will represent yourself, or whether you will hire your own attorney), the charges are read to you, the judge confirms you were given copies of your paperwork, tells you the amount and type of bond, and lets you know your next court date in district court. In many situations, and for a variety of reasons, we can waive your first appearance and skip the embarrassing aspect of this process (you will be in front of a crowd of people).
There are a variety of different bonds and almost infinite bond conditions. For the purposes of this section, we will discuss the main bonds that are likely to be utilized: cash, secured, and unsecured. A cash bond is exactly what it sounds like; someone has to pay the cash value of the bond. If the bond is $5,000.00 cash, someone has to pay $5,000.00 in cash to get you out of jail. As long as you do not miss your court dates, this money will be returned after the charges are disposed (regardless of guilt or innocence).
If the bond is secured, you can utilize a bondsman to post your bond. Bondsmen charge 15% or less to post your bond. For example, if your bond is $10,000.00 secured, a bondsman will charge you $1,500.00 or less to post the bond and get you out of jail. The money you pay a bondsman is a fee; you are paying the bondsman to post your bond and accept the liability of possibly losing much more money. You will not get this money back (even if the case is dismissed).
An unsecured bond requires no money to get out of jail. Regardless of whether you have a $10,000.00 or $5.00 unsecured bond, you do not have to pay any money to get out of jail. Your signature is your bond.
This is the fist thing on the mind of anyone that is in jail. We know that our clients who are in jail want their bonds reduced. However, the Constitution only requires that you have a reasonable bond set, not that the bond be something you can afford. If you cannot afford your bond, get comfortable because you are going to be in jail for a very long time.
Getting to the point, however, a bond reduction is not something that is easy to accomplish. The process is complex and can involve everything from negotiating with prosecutors to appealing to Superior Court and arguing before a judge. In some cases, however, a reduction is moot point because the individual may not have any money to pay toward their bond. Also, if the prosecutor is not on board with the reduction, there is always a risk that the bond could be increased.
Addressing a bond reduction should be accomplished through a frank conversation. We need to know the maximum amount of money that can be raised to post your bond. That will let us know the amount of reduction that is necessary to post the bond. For example, if the maximum amount of money that you can put toward your bond is $1,500.00, we know that we will have to have your bond reduced to the range of approximately $10,000.00 – $25,000.00. In other words, if you are facing a $100,000.00 bond, a reduction to $50,000.00 will serve no real purpose (assuming the maximum amount of money you can post is $1,500.00).
We handle these situations by placing our clients money in a trust account. We evaluate the current bond amount and make an experienced opinion as to the realistic amount of reduction that will take place. We contact the prosecutor and determine the lowest bond they are willing to agree upon. We then contact bondsman and determine the highest bond they will post based upon the amount of money our client has in trust. This is a waxing and waning process and will continue until the numbers work out. Once the numbers work out, we file a consent modification, head to court, have a judge order the agreed upon reduction, send a bondsman in, and post your bond.
If you find yourself in jail without money to post a bond, you are going to need to get comfortable with your situation. It varies from county to county, but the average felony disposition time ranges from around 4 months (for low level felonies) to 2 years or more (for serious felony charges).
The length of time is directly dependent on the complexity of the case, the required chemical/DNA/blood analysis, and the severity of the charge. Complex cases take a long time to put together because you have to be able to present the case and defense to the jury in a manner they will understand. If the case involves scientific analysis, you are going to have to wait for the State Bureau of Investigation to complete testing (they have about a 12 month backlog without a rush order). If the case is serious, it is going to require an ongoing investigation and, in turn, the continuing delivery of discoverable evidence to our office.
Right to a Speedy Trial
Your constitutional right to a speedy trial is not what most people believe it is. Waiting a year or more to go to trial is not a per se violation of your constitutional rights. In order to comply with a motion for a speeding trial, in a simplistic and general view, the State must calendar your case for trial at least once every 6 months. This does not mean your case will actually be called for trial. The prosecutor, in most situations, determines the order of cases for trial. In other words, if the prosecutor places your case on the trial docket and decides that your case is number 100 for trial, there is almost no realistic possibility that your case will be heard by a jury during that term. However, by placing your case on the trial docket, the prosecutor has complied with any motion for a speedy trial. . . even if the case is never reached.
District Court Calendars
With a few exceptions, the District Court in the Fourth Prosecutorial District (Onslow, Duplin, Jones, and Sampson Counties) does not have jurisdiction to handle a felony charge. Jurisdiction, in an almost incorrect and very generic sense, means the legal authority to enter a verdict in a case. Because this District Court lacks jurisdiction over felony charges, very little work is done on felony cases during these trial sessions. Nevertheless, your case may appear on many District Court calendars and your presence is required (unless you are in jail or have hired an attorney).
If it is unlikely that anything of substance will be done in the District Court, the obvious question regards the purpose of district court dates. The answer is that these court dates can be used to determine probable cause for arrest, argue pretrial motions, reduce and plea certain charges, comply with your right to a speedy trial, verifying a person has not fled from justice, etc.
If you find yourself in jail, you will undoubtedly hear the inmates talking about your “motion.” The inmates are referring to a Motion for Discovery. This is the document that demands the prosecutor disclose the evidence against you. It is also one of the first motions that we file in a felony case. Filing this motion does not mean that there is going to be an immediate response from the State. In many cases, the prosecutor may not have anything in his possession to turn over for a very long time.
The Constitution and case-law (published cases that interpret the law) require the prosecution to disclose the evidence against you. As former Superior Court Prosecutors, the following is a description of how this is accomplished: law enforcement will investigate a case and usually write down notes as they are investigating. These notes typically get typed and memorialized as police reports or incident reports. Physical evidence will be collected in a specific manner and sent for testing (if necessary).
Once the reports are completed, they will be sent to the officer’s supervisor for review. If the report is satisfactory, the charging agency will send the reports to the District Attorney’s Office along with photos and descriptions of other evidence. If evidence has been submitted for testing, the prosecutor will wait for the results to be returned. As reports and results trickle into the District Attorney’s Office, legal assistants will compile the information into a file jacket and present it to the prosecutor assigned to the case. The prosecutor will then review the case and determine the identity of the defense attorney. The prosecutor will then begin sending copies of all the evidence to the defense attorney. Once we receive these documents, a copy will be prepared and delivered to the client. In some cases, we will only be able to show you the evidence as opposed to giving you a copy (cases where it would be illegal to provide you with the actual evidence, ie illegal controlled substances, child pornography, etc. In these situations, we can have independent analysts evaluate the evidence on your behalf and provide us with their findings).
At some point, the prosecutor is likely going to send an indictment to the grand jury. An indictment is the name of the document that formally charges a person with a felony and establishes jurisdiction in the Superior Court. Something that might come as a surprise is the fact that the prosecutor can change the charges, charge additional crimes, or allege factors in the indictment that will cause you to face more serious punishment.
As stated, once the prosecutor has created an indictment, the document is sent to the grand jury. The grand jury is a group of citizens, selected randomly, to serve for a period of one year. In essence, these are the people who decide whether there is “probable cause” to believe you committed a crime. If the grand jury finds probable cause, they will sign the indictment and return what is known as a “true bill of indictment.”
Obtaining a true bill is not a difficult feat for the prosecution. First of all, we are not allowed to participate in the hearing before the grand jury. Secondly the grand jury really only has to answer two questions in the affirmative: did the officer tell us a plausible story regarding the commission of a crime? If we believe the officer, was a crime committed by the person charged? If the answer to these questions is yes (which it almost always is), they will return a true bill.
As former Superior Court Prosecutors, our partners sent the grand jury in excess of 8,000 indictments and never had one declined (a non-true bill). There were times when an indictment was held over to the next session because the officer didn’t show up, but we cannot recall an instance where the grand jury dismissed the case. This is only to reemphasize the point that an indictment does not mean your case has taken a turn for the worse, but has merely followed the path of nearly all others before it.
By the time the indictment is returned by the grand jury as a true bill, we should have been provided discovery (the evidence against you) and a plea offer. Once we have received discovery, a plea offer, and an indictment, your case will start moving at a much faster pace. For example, for the first time (in most cases) you will have to appear in Superior Court during the Administrative Session.
Administrative Session of Superior Court
Within 60 days of being indicted, you will be scheduled for an Administrative Session of Superior Court (Admin). During Admin, we will meet with the prosecutor assigned to your case and the judge in the judges chambers. The purpose of this meeting is to discuss your case. The prosecutor will explain to the judge the plea deal that has been offered and we will either accept or reject the plea deal (assuming we have the discovery and have spoken with you about the plea deal). If we have your authority to accept the plea deal, your case will be scheduled for a specific time and day during Admin. If the plea is rejected, a trial date will be selected. If some evidence is missing from the discovery packet, or there is more evidence that we need, your case will be continued to the next administrative session.
Simply because you have been scheduled for trial on a particular term of Superior Court does not mean you will actually go to trial. The prosecutor is required to create a docket of cases intended for trial and publish the order in which they will be tried. The trial order is known (in this district) as a priority list.
The trial docket and priority list are almost completely up to the discretion of the prosecutor. If the prosecutor puts your case on the docket, we will have to be present and ready for trial even if you are the last person on the priority list.
Generally, prosecutors create a priority list by considering many factors. Serious cases like murder, rape, and deadly assaults are going to take priority over most cases. Burglary and Drug Trafficking cases are going to be more important than simple drug crimes or frauds.
The prosecutor will also consider the age of a case. If the case is really old, it needs to be moved before newer but similar cases. This is because the older a case gets, the less likely the prosecutor will be able to prevail. As time passes, witnesses move away or forget what they saw, the probability of losing evidence increases, etc.
After taking into consideration the severity and age of the case, a prosecutor will consider how long a case will take to try. If the trial is going to last two weeks, it should be something that is on the top of the list to limit the time a particular jury has to serve (the prosecutor doesn’t want to start a two week trial after the jury has already sat in court for four days of what is supposed to be a week long obligation). Conversely, if the trial can be completed in one day, a prosecutor will want the case to be toward the bottom of the priority list.
At the end of all the evidence in a trial, the judge will give the jury what is known as the Final Mandate. The Final Mandate is composed of instructions for the jury regarding the alleged crimes. The jury will then be sent to deliberate (or discuss) the case and render a verdict. Verdicts must be unanimous and cannot be by majority vote. There must be 12 votes to convict or 12 votes to acquit.
In North Carolina, we do not have “hung juries,” we only have mistrials. If the jury cannot reach a unanimous verdict, the judge will have to declare a mistrial. Mistraials can sometimes result in a better plea offer from the prosecution, but generally, a mistrial is not a victory for either side.
All a mistrial means is that the prosecutor has to try your case all over again. If you have retained an attorney, this means you are going to have to rehire the attorney to handle another trial. This can be an incredibly difficult situation for you and we will work to accommodate your financial constraints.