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DA responds to allegations of being wrong (or worse) in dismissing so many cases
Saturday, 01 January 2022 13:59

From Staff Reports

Buncombe County District Attorney Todd Williams was contacted by the Daily Planet on Dec. 27 and 28 for his response to concerns about the extremely high proportion of court cases he is dismissing — expressed publicly by Asheville Police Chief David Zack, local FOP President Rondell Lance and others — and he responded on Dec. 28 with an email including several attachments.

He wrote above the attachments he sent to the Daily Planet: “Please see the attached documents previously released to the press pursuant to NC Public Records laws and the statements below.” 

Williams’ top (and lead) attachment responds as follows: 

“I am concerned that the city’s letter presents statistics without context and, regardless of intent, has served to mislead the public. The city's letter indicates or presumes that all of the class 3 misdemeanors listed in the letter are dismissed by the district attorney in an act of discretion or refusal to prosecute. Moreover, the letter was drafted for release at a public meeting to discuss the homeless crisis without prior consultation about context and the letter was released publicly to Skyline News. An underlying assumption of the letter is that we live in a police state and that once an individual is charged it's the district attorney's obligation to seek maximum punishment in each and every case and it is also an underlying assumption that a failure to do so is a failure of justice. It is my obligation to clarify that such assumptions do not accurately reflect our legal system and to state that these assumptions undermine public trust in our legal system.

“Philosophy: A district attorney is obligated to seek justice and not merely convict.

“The North Carolina Rules of Professional Conduct direct that a district attorney shall make reasonable efforts to ensure that the accused has been given an opportunity to obtain counsel. Interestingly, defendants in the cases cited in the city's letter (all class 3 misdemeanors) do not have a right to a public defender or court-appointed counsel under North Carolina law.

 “A DA is obligated to ensure procedural justice. Should in the odd case an individual be held in custody on a bond that the defendant cannot make, the DA's office could ask the defendant to plead guilty to time-served to get out of jail. However, I believe it would be inherently coercive to engage in this practice and this is not an appropriate practice. (I have consulted with Wake Forest Professor Ron Wright about this issue. You may contact him for more information. This e-mail address is being protected from spambots. You need JavaScript enabled to view it .)

“Furthermore, whenever possible, this office refers matters that are not criminal justice matters to services outside of the Court system. In other words, matters that could be better handled through mental health treatment or substance abuse treatment should not be brought to the criminal justice system or if they are they should be referred to diversion to other more effective providers for service or dismissed in the interests of justice.

 “Policy: Policy in regard to these cases is created in response to State and local priorities, resources, and statutory guidance. Please note that in most cases a class 3 misdemeanor cannot result in punishment that involves jail. A judge's only options are to fine or place the person on probation. All resources are limited and all offenders cannot be placed in prison and all cannot be placed on probation. Courts are placed in odd situations involving public nuisance crime and homelessness. Conduct such as urinating in public is punished as a class 3 misdemeanor in North Carolina, however a predicate question to ask is what is the effectiveness of criminal justice system punishment and what behavior are we seeking to correct by entering a criminal judgment? Does it make sense to fine a homeless person? Is it efficient and effective to jail a person at the public cost of $140 per day for a short stay in jail only to release the person back into the community, homeless again? (Judge Kepple indicated she would be glad to speak with you about this issue.)

“Stats: It's safe to assume that nearly all of the cases in the letter are dismissed by the district attorney's office. But what is important to note is that there are two different kinds of dismissals and these two different kinds of dismissal flow from different situations and circumstances.

“One kind of dismissal is a voluntary dismissal. This kind of dismissal results from a district attorney's act to decline to prosecute in the interest of justice. Most are familiar with this dismissal in the context of a traffic citation. If an individual has a good traffic record it's likely that a district attorney will give consideration to that and if the offense is not a grave one, a voluntary dismissal of the charge (together with a warning), might be appropriate.

“The other kind of dismissal is a ‘dismissal with leave’ to refile the case. This dismissal is entered after a defendant has failed to appear in court. The case can be refiled once the defendant is located.

“Another aspect of context that is omitted from the letter is the role of multiple actors within the court system. Magistrates and judges generally do not issue secured bonds and orders for arrest class 3 misdemeanors. The effect is that persons charged with class 3 misdemeanors are often not compelled to attend court and their cases lapse into ‘dismissal with leave’ status. (Please speak to a judge or magistrate about this, they are able to speak for themselves.)

“Therefore: the cases in the city’s letter are all either dismissals with leave or voluntary dismissals that have been entered by an ADA (a few may be dismissed by the court, but an insignificant number).

“Therefore many of these dismissals result when a defendant fails to appear and the fact is that the district attorney’s office simply has never had a case to prosecute because the court never has had personal jurisdiction of the defendant.

“Example real-world application: After a person fails to appear in court on a class 3, the case will be placed in ‘dismissal with leave’ status. If the defendant is later picked up on a more serious charge –  say misdemeanor breaking and entering for sleeping in a shed (a more serious class 1 misdemeanor) - the state may offer the defendant to plead to the class 1 misdemeanor and dismiss the class 3 misdemeanor.

“A better example perhaps is that in the case of a public urination charge you will often see an indecent exposure charge together with it. Indecent exposure is a class 2 misdemeanor. Upon entering a plea on the indecent exposure, the lesser charge is often dismissed because, as previously noted, the criminal justice punishments for class 3 misdemeanor are limited and behavioral services and diversion are more suited to class 3 misdemeanors.

“Therefore in either circumstance because these cases are so low in punishment priority by operation of law set by the North Carolina legislature, dismissals are the norm.

“What’s objectionable: The situation is complex by nature both in terms of understanding the complex systems – the justice system, support service systems, and overall public safety system, which includes law enforcement, the community paramedicine program (, and EMS – and in terms of understanding the plight of people who are unhoused and the concerns and experiences of other residents, businesses owners, and others. Instead of seeking to understand the situation, and instead of engaging in effective, cooperative problem solving with me and my office, the letter was drafted and presented to me without discussion and shared publicly in a manner that misled, heightened people’s fears, and trampled upon our legal system’s fundamental precept that everyone accused of crime is innocent until proven guilty.  I have no doubt that we can and will move past and learn from this particular incident such that the City, APD, our DA’s office, special interest groups, and the community at large will be effective partners on this important topic.”



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