Can a North Carolina prosecutor seek an order for arrest for a defendant's failure to appear when the prosecutor knows the defendant did not appear because he is in ICE custody?

Plain-English summary

The inquiry arises from a defendant who is an undocumented immigrant, posts a secured bond through a bondsman, and is then taken into custody by U.S. Immigration and Customs Enforcement (ICE) and moved to a federal facility. On the defendant's court date, defense counsel explains the defendant is in ICE custody and asks the state to bring him to trial, take a voluntary dismissal, or dismiss with leave. Instead, the prosecutor asks the court to call the defendant for failure to appear and issue an order for arrest under N.C. Gen. Stat. 15A-305(b)(2), and the court enters a bond forfeiture. The first inquiry asks whether the prosecutor's conduct violates Rule 3.8 or any other rule.

The opinion concludes it does not. Rule 3.8, on the special responsibilities of a prosecutor, prohibits prosecuting a charge the prosecutor knows is not supported by probable cause, and the comment emphasizes the duty to seek justice. But there is no legal requirement that a defendant's failure to appear be willful. Because the legal requirements for requesting an order of arrest were satisfied and there was a procedural reason for seeking it, the prosecutor's exercise of professional discretion within the requirements of the law does not violate the Rules of Professional Conduct, even though the prosecutor knows the failure to appear was not willful. The opinion notes the statutory bond-forfeiture mechanics: a forfeiture may be set aside on a showing the defendant was incarcerated and the district attorney was notified (N.C. Gen. Stat. 15A-544.3(b)(9)), and an outstanding state arrest order lets the state take custody if ICE would otherwise release the defendant (N.C. Gen. Stat. 15A-761).

On the second inquiry, whether the judge violated the Rules of Professional Conduct or the Code of Judicial Conduct by issuing the arrest order and forfeiting the bond, the opinion declines to respond: opining on the professional conduct of judicial officers is outside the Ethics Committee's purview.

In practice

Under the North Carolina rule as it stood at the time of the opinion, conduct in which a prosecutor seeks an order for arrest for failure to appear is permitted even when the prosecutor knows the non-appearance was not willful, provided the legal requirements for the order are met and there is a procedural reason for it. Per the opinion, the analysis turns on two points: Rule 3.8 bars prosecuting a charge not supported by probable cause but imposes no willfulness requirement for a failure to appear, and a prosecutor's exercise of discretion within the requirements of the law does not violate the rules.

Common questions

Q: Does a prosecutor violate Rule 3.8 by seeking an arrest order for failure to appear when the defendant is in ICE custody?

A: No. The opinion concludes that Rule 3.8 bars prosecuting a charge not supported by probable cause, that a failure to appear need not be willful, and that where the legal requirements for the order are met and there is a procedural reason, the prosecutor's exercise of discretion within the law does not violate the rules.

Q: Why would a prosecutor seek the arrest order in this situation?

A: The opinion describes a procedural reason tied to the bond-forfeiture statutes: a forfeiture can be set aside on a showing the defendant was incarcerated and the district attorney was notified (N.C. Gen. Stat. 15A-544.3(b)(9)), and an outstanding state arrest order allows the state to take custody when ICE would otherwise release the defendant (N.C. Gen. Stat. 15A-761).

Q: Did the committee decide whether the judge acted properly?

A: No. The opinion states that opining on the professional conduct of judicial officers is outside the Ethics Committee's purview, so it offered no opinion on whether the judge violated the Rules of Professional Conduct or the Code of Judicial Conduct.

Background and rules framework

The opinion applies North Carolina Rule 3.8 (special responsibilities of a prosecutor, the analogue of Model Rule 3.8), which prohibits a prosecutor from prosecuting a charge the prosecutor knows is not supported by probable cause and whose comment emphasizes the duty to seek justice. The opinion reads Rule 3.8 against the relevant criminal-procedure statutes governing orders for arrest and bond forfeiture (N.C. Gen. Stat. 15A-305, 15A-544.3, 15A-544.5, and 15A-761), concluding that acting within those statutory requirements is consistent with the rule.

The second inquiry implicates the Code of Judicial Conduct, but the opinion declines to address judicial conduct as outside the Ethics Committee's authority.

Citations and references

Rules of Professional Conduct:

• MR 3.8 / NC Rule 3.8 (special responsibilities of a prosecutor; no prosecution without probable cause)

Statutes:

• N.C. Gen. Stat. 15A-305(b)(2) (order for arrest on failure to appear)
• N.C. Gen. Stat. 15A-544.3 and 15A-544.5 (bond forfeiture and grounds to set aside)
• N.C. Gen. Stat. 15A-761 (interstate/agency detainers and custody)

See also

• NC State Bar 2009 FEO 15: Prosecutor Must Dismiss
• ABA Formal Op. 467: Prosecutor Supervisory Duties
• ABA Formal Op. 469: Prosecutors and Debt Collectors

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2013-formal-ethics-opinion-6/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

A defendant is an undocumented alien who is arrested for a crime. He is given a secured bond by the magistrate, placed in custody in the jail, and served with a US Immigration and Customs Enforcement (ICE) detainer. The defendant hires a bondsman to pay the secured bond and the bondsman does so. ICE comes to the jail and takes the defendant into custody, transporting him to a federal holding facility. The defendant’s court-appointed lawyer brings verification of the defendant’s detention by ICE to the prosecutor handling the case. Later, the defendant’s lawyer appears in court on the defendant’s court date and explains to the court that the defendant is in the custody of ICE. The defense lawyer asks the state to have the defendant brought to trial, enter a voluntary dismissal, or dismiss the case with leave pursuant to N.C. Gen. Stat.§15A-932.

The prosecutor asks the judge to call the defendant for failure to appear and to issue an order for his arrest pursuant to N.C. Gen. Stat.§15A-305(b)(2) which provides that “[a]n order for arrest may be issued when:...[a] defendant who has been arrested and released from custody pursuant to Article 26 of this Chapter, Bail, fails to appear as required.”

The court enters a forfeiture of the bond pursuant to N.C. Gen. Stat.§15A-544.3(a), which provides that when a defendant who was released upon execution of a bail bond fails to appear before the court as required, the court shall enter a forfeiture for the amount of the bail bond in favor of the state and against the defendant and the surety on the bail bond. Nevertheless, N.C. Gen. Stat.§15A-544.3(b)(9) provides that a forfeiture of a bail bond will be set aside if, on or before the final judgment date, “satisfactory evidence is presented to the court” that one of a number of listed “events” has occurred. That list includes the following “event” at subparagraph (vii):

the defendant was incarcerated in a local, state, or federal detention center, jail, or prison located anywhere within the borders of the United States at the time of the failure to appear, and the district attorney for the county in which the charges are pending was notified of the defendant's incarceration while the defendant was still incarcerated and the defendant remains incarcerated for a period of 10 days following the district attorney's receipt of notice, as evidenced by a copy of the written notice served on the district attorney via hand delivery or certified mail and written documentation of date upon which the defendant was released from incarceration, if the defendant was released prior to the time the motion to set aside was filed.

N.C. Gen. Stat.§15A-544.3(b)(9); accord N.C. Gen. Stat.§15A-544.5(b)(7).

If ICE decides to release the defendant from custody and there is an outstanding order for his arrest from a North Carolina court, ICE will detain the defendant until he can be released to the custody of the State.1 See N.C. Gen. Stat.§15A-761.

Is the prosecutor’s conduct a violation of Rule 3.8 or any other Rule of Professional Conduct?

Opinion #1:

No. Rule 3.8, on the special responsibilities of a prosecutor, prohibits a prosecutor from prosecuting a charge that the prosecutor knows is not supported by probable cause. The comment to the rule, moreover, emphasizes the prosecutor’s duty to seek justice. However, there is no legal requirement that a defendant’s failure to appear in court be willful. In the instant inquiry, the legal requirements for requesting an order of arrest were satisfied and there was a procedural reason for seeking the order of arrest. Therefore, although the prosecutor knows that the defendant’s failure to appear is not willful, the prosecutor’s exercise of his professional discretion within the requirements of the law does not violate the Rules of Professional Conduct.

Inquiry #2:

Did the judge violate the Rules of Professional Conduct or the Code of Judicial Conduct by issuing the order for arrest and forfeiting the bond?

Opinion #2:

Opining on the professional conduct of judicial officers is outside the purview of the Ethics Committee. Therefore, no opinion will be offered in response to this question.

End Notes

• As a practical matter, however, a person who is detained by ICE is rarely released. Deportation or federal incarceration is more likely.