Facing stretched resources, Mecklenburg County’s top district court judge has done away with a decades-old staple in the local criminal defense system, upsetting some leading attorneys.
For more than 20 years, people charged with felonies have been guaranteed a bond hearing within 10 days of their first appearance in the Mecklenburg County courthouse. The hearings were a chance to argue to a judge, with a lawyer’s help, that a defendant should be released from jail before their next court date, or that their conditions of release should be different.
But times have changed, Chief District Court Judge Elizabeth Trosch told The Charlotte Observer. The system was inefficient, she said, and the courthouse is facing new drains on its time and manpower.
The change was necessitated, in part, by Mecklenburg’s recent switch to a new, digital court records and case management system known as eCourts.
A math problem
ECourts launched in Mecklenburg County on Oct. 9.
That same day, Chief Public Defender Kevin Tully ended his clients’ first appearances with a consistent appeal to Trosch. Schedule a bond hearing, he asked, so that there might be a meaningful and timely discussion of whether they should be kept in jail or released.
The Constitution says that they have a right to due process, but no one from Tully’s office had an opportunity to even meet with them. Tully was “hamstrung,” he said.
“I understand, Mr. Tully,” Trosch replied at one point. “I’m not scheduling a bond hearing.”
When Mecklenburg held regular and separate bond hearings, it was typically the third time a criminal suspect would see a magistrate or judge. Magistrates, in most cases, assign a bail dollar amount within hours or a day of someone’s arrest.
Judges can increase or lower bonds and change other release conditions set by magistrates — like requiring a defendant to wear an ankle monitor if they’ve bailed out of jail — at a first appearance. Most first appearances happen the day after an arrest, or within 72 hours.
When Trosch worked in public defense in Mecklenburg County more than 20 years ago, first appearances were far less thorough, she said. There were no lawyers weighing in, just a judge and the sheriff’s office.
The goal was simple: appoint a lawyer and set the next court date.
In 2023 prosecutors and assistant public defenders in Mecklenburg County are in the courtroom for a first appearance. A report lists off past convictions and pending charges a suspect faces in North Carolina, as well as any previous prison sentences and probation. Prosecutors can pull up someone’s out-of-state criminal history, too. Judges ask defendants questions to gauge how safe it might be to let them wait for their next court date outside of jail.
“We’re giving a much more meaningful review on conditions of release and the factual allegations against the defendant at first appearance than we ever did before,” Trosch told The Charlotte Observer.
With only 21 district court judges, limited courtrooms and a learning curve from a new case management system, Trosch has been forced to confront a “math problem,” she said. She’ll lose two full-time emergency judges at the end of the year.
Having an extra bond hearing for each felony charge someone faces isn’t practical, she said.
A ‘check’ on the system
Two leading defense attorneys disagree that first appearances are meaningful reviews, they told the Observer. They fear that their clients’ rights are being hurt with the change.
“The person appears on a little monitor; they’re not even physically present,” Tully said of first appearances. His office represents people who can’t afford to hire a lawyer.
“While my office does send a lawyer to first appearance, they’re in the courtroom and the person is appearing on a screen from the jail,” he added. “So, we have no access to that person.”
Even without an automatic bond hearing, defense attorneys can still request one from a district court judge. So far, those requests have not been granted, Tully said.
It has been especially frustrating for him, he said, as the courthouse has made progress in treating defendants more fairly and revamping its bail bond system over the last few years.
“The research shows that if you hold people who don’t need to be in jail longer than necessary, it is terribly destabilizing,” he said. “They lose jobs. They lose housing. They lose community support… That instability invites additional criminal activity.”
Mecklenburg’s jail numbers have drawn other concerns. A December 2022 report from the state Department of Health and Human Services called for a massive reduction in the inmate population. A state inspection found that the jail could not safely evacuate inmates from the facility in the event of an emergency, and that violent incidents took longer to control because of a staffing shortage.
Huge numbers of people are processed through first appearances on any given day, said Eli Timberg, a former assistant public defender who now works for a law firm. Timberg is the co-president of the Mecklenburg County Criminal Defense Law Association.
The vast majority of the time, a defendant doesn’t even have a lawyer yet, and the process might be over for a defendant in less than a minute, he said.
But at a bond hearing, things slow down, and there’s a chance to go through the facts, he said.
A defense attorney might request surveillance footage, and the whole story behind an arrest changes, along with the defendant’s release conditions, he said.
“I’ve seen (prosecutors) dismiss a case at the bond hearing date quite a few times,” he said.
“Without that bond hearing date, you lose that check on the system,” he said. “Especially in Charlotte… which is massive, processes a lot of people and makes mistakes.”
Judge: New system would be broader
A new, digital records and case management system known as eCourts has slowed down routine processes for lawyers, clerks and judges. Dockets have been slashed. Traffic court was recently canceled for a week.
The change to bond hearings was coming anyway, Trosch said, but eCourts’ learning curve necessitated it.
She envisions the public defender’s office, the district attorney’s office and Pretrial Services coming together to create a regular, formalized review for whether some people should be held in jail.
The old system was too “piecemeal” by looking at every charge in separate hearings, she said.
In the meantime, with automatic bond hearings gone, Timberg has wondered how lawyers might advocate for their clients.
“The bond hearing had this important role of at least making your clients feel heard somewhat early in the process,” he said. “From the moment you get arrested, usually nobody’s trying to listen to you.”
Police make the arrest. The typical response when a suspect pushes back, Timberg said, is “save it for the judge.” Magistrates in the bowels of the jail process a mass of people every day, potentially without listening. The jail is only there to make sure a defendant is housed.
Ten days in, it used to be that a defendant knew they could tell a judge their side of the story.
He asked: When will they get to do that now?