Why do murder cases drag on for so long? | Raleigh News & Observer

On Thursday, thousands of people gathered at UNC-Chapel Hill to remember slain student leader Eve Carson on the one-year anniversary of her fatal shooting.

Demario Atwater, 22, and Laurence Alvin Lovette, 18, both of Durham, were arrested shortly after the killing and charged with murder in Carson's death. It will be months before either of them goes to trial.

Nothing unusual about that. Murder cases take a long time to make their way through the justice system in North Carolina. The median age of a murder case at resolution -- by verdict, plea or dismissal -- was 528 days last year.

Atwater's case is somewhat unusual in that he faces federal charges as well, and it's unclear whether his federal or state trial will occur first.

Wake County District Attorney Colon Willoughby and trial attorney Jim Cooney gave their insights on why murder cases take so long in interviews with Sunday Focus editor Rob Waters.

PROSECUTORS OFTEN GO FOR THE DEATH PENALTY. THAT REQUIRES EXTRA PREPARATION BY TRIAL LAWYERS

James P. Cooney III of Charlotte is regularly ranked as one of North Carolina's top trial lawyers.

Q: Why do these cases take so long to go to trial?

A: District attorneys declare just about every murder case a capital case. In North Carolina, there's hardly a murder you can think of that doesn't fit some definition of a capital crime.

That puts the case on a whole other track. It means that in addition to preparing for the guilt phase of the trial, you have to prepare for the sentencing hearing that follows if there's a conviction -- you're doubling up.

Last year, of all the homicides initially declared capital cases, only a few actually went to trial as capital cases -- and there was just one death sentence.

Q: So prosecutors initially file a case as a capital case, then back off?

A: Yes, often a lot later. The overall pool starts out big. DAs are going to do what the system permits to gain leverage -- they'll go capital on everything and work their way down if forced to.

A defense lawyer doesn't know at the outset which ones will end up as capital cases, so you have to prepare every one as if it's going to be. It's very expensive.

Q: Has the open-file discovery law changed things?

A: Only in the sense that it allows prosecutors and defense lawyers to have more rational discussions about a case, because there are no secrets.

Q: Does the side with the weaker case sometimes drag its feet?

A: I don't think so. It takes time to prepare a capital case. We're under obligation to examine the entire life of a defendant. You must be ready to go to the penalty phase right away -- the judge won't give you additional weeks to prepare.

It's not a question of "Gee, why don't we stretch it out and hope that victims and witnesses move away or forget?" That doesn't happen in murder cases. Prosecutors get as many resources as they need for these cases.

Q: How much of a problem is scheduling? Are judges and courtrooms in short supply?

A: We have fewer judges per capita in North Carolina than any other state our size. Allocation of resources is a big issue -- everything stretches out because it's hard to find court time.

Q: Is anybody looking out for the victim's family as cases drag on?

A: I can understand the pain that victims go through as the system grinds out these cases. However, the overwhelming majority of these defendants are in jail, without bond.

And remember, there have been a number of people wrongfully convicted in this state. The most important thing we can do is get it right the first time.

Pushing cases without adequate time to prepare will not alleviate victims' pain if we convict the innocent or make mistakes that will require doing it over again.

DELAYS HAVE MANY CAUSES INCLUDING COMPLEX RULES, HEAPS OF INFORMATION, SCRUTINY OF LAWYERS' EFFORT

Colon Willoughby is Wake County district attorney.

Q: Why do these cases drag on?

A: Murder trials have become increasingly complex and hypertechnical, especially when it's a capital case.

The investigations tend to be much more exhaustive. Law enforcement officers do a much more complete job than they did 22 years ago when I started prosecuting cases. That forces defense lawyers to do more investigative work as well.

Q: Are there other factors?

A: Open-file discovery [the requirement that prosecutors share all investigative files with the defense] often provides thousands of pages of information gathered in an investigation. A lot is useless, but defense lawyers must still go through it exhaustively.

Q: Does the side with the weaker case sometimes try to delay?

A: That happens. If you're in a position of weakness, you're often not in a hurry to go to trial.

In general, most delays are generated by the defense, and delays usually work against the prosecution. It's difficult to keep up with witnesses. Memories become more frail. It's difficult to keep up with the physical evidence.

Q: Are multiple-defendant cases part of the problem?

A: Yes. They add complexity. When there are co-defendants to be tried for the same murder, it adds the scheduling conflict for two or three or four lawyers. It's difficult to set definite trial dates.

Q: Defense lawyers say DAs overuse the threat or reality of a capital murder charge, when in fact few cases end up being tried that way. What say you?

A: This is a red herring. Last year I think there were only six murder cases tried capitally in North Carolina. The difficulty comes from Rule 24 that requires prosecutors to give notice early whether they have evidence of aggravating factors and may try the case capitally. This is often required before an investigation is complete. It forces prosecutors to designate a case as potentially capital prematurely.

That prompts the defense to exhaust every opportunity to avoid a death penalty. Rule 24 is not working the way it was intended.

Q: The delays can leave the family of a murder victim hanging.

A: I agree. It's of little comfort to a victim's family when a case is delayed for a year or two or three.

Q: Can anything be done?

A: Short of accepting plea bargains and giving away cases, there's not a very workable solution.

Q: The drawn-out process is expensive too, right?

A: There's a tremendous expense involved. In every capital case and many other murder cases, defense lawyers know that if a client is convicted, everything they do will be scrutinized. They know that at some point they'll be accused of failing to exercise a proper standard of care.

It's a lot like the defensive medicine practiced by physicians -- they go to great lengths to chase down information or leads of little or no value because they know it will be scrutinized in "what-if" situations.